was rendered, and from which judgment the defendant prosecutes error.

When the plaintiff had introduced his evidence, the defendant demurred thereto for the reason that the evidence did not support the cause of action alleged in the petition. This was overruled. Among other instructions, the court instructed the jury as follows: "The principal questions of fact for you to determine in this case are as to the terms of the contract under which the wheat was stored, and as to whether the terms of the contract for the storing of the same have been kept and performed by the parties; and it is upon these questions that the principal questions of law in the case arise." The court also instructed the jury, in substance, that if it should find the contract was that the wheat should be kept separate and apart in the elevator, and the identical wheat returned upon request, and that it was so kept, then the verdict should be for defendant. The cause was tried as an action to recover an overcharge for storage, and by the instructions this was the question to which the attention of the jury was specially directed. There are no facts stated in the petition that would authorize the admission of evidence to establish a cause of action for excess storage. The cause of action stated by plaintiff to the jury was in its nature one to set aside a settlement, and recover for storage of wheat raid by plaintiff through a mistake of facts induced by the fraud of defendant. The evidence of both parties conclusively proved that the defendant had accounted to plaintiff for all wheat so deposited, so that a verdict could not properly have been returned or judgment rendered against it for the value of the plaintiff's wheat. The jury, in answer to a special question, found that at the time of the settlement, on June 25, 1897, there was nothing due defendant for the storage of wheat. Its verdict, therefore, must have been for the amount of storage it found that plaintiff had paid to which the defendant was not entitled. The facts stated by counsel for plaintiff to the jury, which he then claimed constituted his cause of action, was a departure from those set out in his petition. Mr. Pomeroy, in his Code Remedies (section 554), says: "The very object and design of all pleading by the plaintiff, and of all pleading of new matter by defendant, is that the adverse party may be informed of the real cause of action or defense relied upon by the pleader, and nay thus have an opportunity of meeting and defeating it, if possible, at the trial. The requirements, therefore, that the cause of action or the affirmative defense must be stated as it actually is, and that the proofs must establish it as stated, is involved in the very theory of pleading." "A party to an action should not be allowed to obtain benefits from contradictory and inconsistent allegations deliberately made by himself in his pleadings. Our Civil Code does not contemplate any such thing. The spirit of our Civil

*

Code is that a party shall state in his pleadings the real facts of his case, and not falsehoods or fictions, and, when each party states what he believes to be the truth and real facts of his case, the court may know precisely where the parties differ." Kennett v. Peters, 54 Kan. 119, 123, 37 Pac. 999, 45 Am. St. Rep. 274; Losch v. Pickett, 36 Kan. 216, 12 Pac. 822; Wilson v. Fuller, 9 Kan. 176; Wolfley v. Rising, 12 Kan. 535; Hoisington v. Armstrong, 22 Kan. 110. A litigant may not allege one cause of action in his petition, and orally state an entirely different one, and recover upon it. The evidence and finding must be based upon, and correspond to, the facts set out in the petition. In the present case the plaintiff stated one cause of action in his petition, and orally stated and recovered upon an entirely different one. This procedure cannot be recognized or countenanced by courts.

The judgment of the court below is reversed, and the cause remanded. All the justices concurring.

(65 Kan. 139)

STATE v. ABBOTT. (Supreme Court of Kansas, Division No. 1. June 7, 1902.) WITNESS-IMPEACHMENT-ALIBI-INSTRUCTIONS.

1. For the purpose of impairing his credibility, a witness who gives material testimony may be cross-examined as to his past conduct and character, and as to specific acts which tend to discredit him.

2. Where the witnesses for the state undertake to fix the time of the commission of an offense, and are not entirely in accord in that respect, and the accused makes the defense of alibi, and introduces proof that he was else where at the times fixed by the witnesses, au unqualified instruction that the time of the commission of the offense is not important, if it be shown to be within two years immediately preceding the prosecution, is misleading and

the knowledge of her husband; that Mrs. Stutzman met the defendant in the woods near her house, in the absence of her husband, and demanded money from the defendant, which was not furnished; and that then she began the prosecution against the defendant for the offense against her daughter. She claims to have known of the alleged offense within a few hours after its commission, and it is said she made no complaint for more than a month, nor until the demand for money was refused. It is claimed by the defendant that the prosecution was malicious; that it was brought to blackmail him, and to appease Mrs. Stutzman's husband, who had learned of her infidelity. After she had testified in behalf of the state, she was asked on cross-examination if it was not a fact that, from October of the previous year until within a few days before demanding the money from the defendant, she had met him in the timber near the house and had illicit relations with him; but the court, on objection of the county attorney, excluded the testimony. A further effort was made to show the relations between her and the defendant immediately prior to the demand for money and the commencement of the prosecution, but the court would not permit inquiry to be made. It was competent for the defendant to cross-examine the witness as to her antecedents, character, and past conduct, and thus impair her credibility. This line of inquiry became important because of the contention that the prosecution was prompted by the malice of this witness, resulting from a failure to extort money, and some of the circumstances surrounding the case seem to justify a full cross-examination as to her past conduct and character. There is no better method of sifting the conscience and testing the veracity and credibility of a witness than by cross-examination, and there is abundant authority holding that, for the purpose of impairing the credibility of the witness, he may be crossexamined as to specific acts tending to discredit him, although such acts are irrelevant and collateral to the main issue. State v. Pfefferle, 36 Kan. 90, 12 Pac. 406; State v. Probasco, 46 Kan. 310, 26 Pac. 749; State v. Wells, 54 Kan. 161, 37 Pac. 1005; State v. Park, 57 Kan. 431, 46 Pac. 713; State v. Greenburg, 59 Kan. 404, 53 Pac. 61; Brandon v. People, 42 N. Y. 265; People v. Casey, 72 N. Y. 393; Hanoff v. State, 37 Ohio St. 178, 41 Am. Rep. 496; Tla-koo-yel-lee v. U. S., 17 Sup. Ct. 855, 42 L. Ed. 166; Martin v. State (Ala.) 28 South. 92. In the Case of Tla-koo-yel-lee a witness testified against her husband, and on cross-examination questions were asked with a view to showing that since the arrest of her husband she had been living with another person as his wife, under an agreement that if her husband was convicted they should continue to live together as husband and wife. The supreme court of the United States held that the questions were material, as bearing upon the character and 69 P.-11

credibility of the witness, and that their exclusion was prejudicial error. In Martin v. State, supra, a witness testified that the defendant had purchased certain meat which he was charged with stealing; and, with a view of showing bias and prejudice, it was held to be proper to cross-examine the witness as to her conduct with the defendant, although it involved illicit sexual intercourse, so long as she did not claim immunity from answering on account of subjecting herself to criminal prosecution, or its tendency to degrade her. Following these authorities, it must be held that the refusal of the court to permit a full cross-examination of Mrs. Stutzman was material error.

1

The next objection relates to the charging of the jury. The information charged that the offense was committed on the day of June, 1901. The testimony tended to show that it was committed on a certain Saturday in the month, and the prosecuting witness stated that it was not on the first Saturday of the month, nor on the last, but that it was committed on Saturday, the 22d of June. The defendant set up as a defense an alibi, and introduced evidence tending to prove that on Saturday, June 15th, he was in another place, some considerable distance away; that he was five miles away from the alleged scene of the crime on June 22d; and that he was at the city of Howard, on Saturday, June 29th. The court instructed the jury that one of the defenses interposed by the defendant was an alibi, and that the fact that the defendant was present at the time and place the offense was committed must be proven by the state beyond a reasonable doubt. In another instruction, however, the court told the jury that it was "not necessary that the precise date of the commission of the offense be proven, if it is established beyond a reasonable doubt by the evidence that said offense charged or included therein was committed within two years just preceding the commencement of the prosecution." There is good ground to complain of the quoted instruction, -given, as it was, without qualification. It correctly states the law so far as the statute of limitations is concerned, but, in view of the defense of alibi made, it could not be said that the time at which the offense was committed was immaterial, provided it was shown to have occurred within two years before the commencement of the prosecution. It was not necessary that the proof of alibi should cover the entire two-year period prior to the commencement of the prosecution. It was necessary that it should cover the time sufficient to render it impossible, or at least improbable, that the defendant could have committed the offense. The testimony was to the effect that it was committed on some Saturday in June, 1901, and the prosecuting witness swore positively that it was on Saturday, the 22d day of June. Proof that the defendant was not at the place where the offense was committed on the days named by

the witnesses for the prosecution, if believed, entitles the defendant to an acquittal. Since the time was fixed by the witnesses within certain limits, the instruction that the time of the commission of the offense was immaterial, if shown to be within the two-year period, rendered the proof of alibi valueless. It was the duty of the court to frame its instructions to fit the facts of the case, and, as the defense of alibi was interposed, the unqualified instruction as to time was misleading and

erroneous.

The judgment of the district court will therefore be reversed, and the case remanded for another trial. All the justices concurring.

(65 Kan. 183)

STATE v. HAMILTON. (Supreme Court of Kansas, Division No. 2. June 7, 1902.) MURDER-EVIDENCE-CROSS-EXAMINATION.

1. In a prosecution for murder, it is competent for the accused to show by cross-examination of a witness for the state that the latter, with others, formed a mob for the purpose of hanging the defendant.

2. When it appears that a witness was called on behalf of the state at the trial, that his name was indorsed on the information, and that he was subpoenaed by and testified for the prosecution against the defendant at the preliminary examination, it will be presumed that he testified against the defendant, although the record does not contain his examination in chief.

(Syllabus by the Court.)

Appeal from district court, Butler county; C. W. Shinn, Judge.

James Hamilton was convicted of murder, and appeals. Reversed.

Argued before SMITH, GREENE, and POLLOCK, JJ.

E. N. Smith and L. Knowles, for appellant. A. A. Godard, Atty. Gen. (W. M. Rees, E. B. Brumbach, and H. W. Schumacher, of counsel), for the State.

SMITH, J. The appellant, James Hamilton, was convicted of murder in the second degree, and sentenced for a term of 21 years at hard labor in the penitentiary. He killed one George J. Webb, who was in charge of a company of men engaged in railway construction. The appellant defended on the ground that the killing was done in selfdefense. Immediately after the homicide, Hamilton was seized by several men who were working under Webb. A rope was tied around his neck, and he was hanged to a tree and left to die. He was cut down by a man who saw the occurrence, after the mob was gone, resuscitated, and surrendered to the sheriff.

The names of Morris Sheek and George W. Butcher were among those indorsed on the information as witnesses for the prosecution. They were called by the state. On cross-examination by counsel for the accused, the witness Sheek was asked the follow

ing questions: "Q. I will ask you if, before that time, you and four other men did not take the defendant, James Hamilton, over north to a tree, and hang him? Q. You may state, Mr. Sheek, if you and four other men, after the defendant was brought back there, did not direct all the other men at work there to go down to the camp, and that then you five men took the defendant over north of there and hung him?" Objections were made by the state to these questions on the grounds that they were incompetent, irrelevant, and immaterial, no part of the res gestæ, and not cross-examination, which objections were sustained by the court. The same questions, in substance, were propounded to the witness Butcher, followed by the same objections, and the same ruling made. Counsel for the state do not contend that the testimony which counsel for the accused sought to bring out was incompetent, but insist that the record is in such condition that the error in its exclusion cannot be considered, for the reason that the bill of exceptions does not contain the direct examination of the witnesses. It is shown, however, that the witnesses were called on behalf of the state, that their names were indorsed on the information as witnesses against the defendant, and that one of them came from Illinois to testify. It appears, also, by the transcript, that both witnesses testified against the accused before the justice of the peace at the preliminary examination, and that they were subpoenaed before that magistrate by the state. The objections themselves made to the cross-examination by the county attorney presuppose that the witnesses had given testimony against the accused. In a case like the present one, where the charge was murder, and resulted in a sentence for so long a time at penal servitude, the court is not disposed to stand on technical points, when it reasonably appears that the rights of a party charged with one of the greatest crimes have been prejudiced. If the witnesses named had been a part of the mob which hanged the defendant for killing Webb, they could not be very kindly disposed towards him. If prejudice existed, it was proper for the appellant to show it.

The judgment of the court below will be reversed, and the cause remanded for a new trial. All the justices concurring.

NEEL v. NEEL et al.

(Supreme Court of Kansas. Division No. 2. June 7, 1902.) DEED-DELIVERY-EVIDENCE.

The recording of a deed merely raises a presumption of delivery, which may be rebutted by evidence of a contrary intent on the part of the grantor.1

1 See Deeds, vol. 16, Cent. Dig. §§ 136 [c, d, h, j, k, 1, m, p, s), 137 [b, c, f, gl, 580, 628 [b, c, j, k].

Error from district court, Lincoln county; R. F. Thompson, Judge.

Action by Catherine Neel and others against J. S. Neel. Judgment for plaintiffs, and defendant brings error. Affirmed.

Argued before SMITH, GREENE, and POLLOCK, JJ.

Geo. D. Abel and David Ritchie, for plaintiff in error. C. B. Daughters and C. J. Evans, for defendants in error.

PER CURIAM. We have examined the findings of the court which are controlling here. They are against the plaintiff in error, and are fairly supported by the evidence. There was no delivery of the deed to S. J. Neel with intent to pass title. Younge v. Guilbeau, 3 Wall. 636, 18 L. Ed. 262; Hawkes v. Pike, 105 Mass. 560, 7 Am. Rep. 554; Cravens v. Rossiter, 116 Mo. 338, 22 S. W. 736, 38 Am. St. Rep. 606. The recording of the deed merely raises a presumption of delivery to the grantee, which may be rebutted by proof of a contrary intent on the part of the grantor. Stevens v. Castel,

63 Mich. 111, 29 N. W. 828. The judgment of the court below will be affirmed.

(65 Kan. 185)

STATE v. SEELY.

(Supreme Court of Kansas, Division No. 2. June 7, 1902.)

INDICTMENT-SUFFICIENCY-ROBBERY. Where a statute in creating an offense specifically sets out the facts constituting such offense, an indictment or information charging the commission of that offense in the language of the statute is sufficient.

(Syllabus by the Court.)

Appeal from district court, Pawnee county: J. E. Andrews, Judge.

Charles Seely was convicted of robbery, and appeals. Affirmed.

Argued before SMITH, GREENE, and POLLOCK, JJ.

H. S. Rogers and Chas. C. Keran, for appellant. A. A. Godard, Atty. Gen., and G. W. Finney, for the State.

GREENE, J. The appellant was informed against, arrested, tried, and convicted of the crime of robbery in the first degree, in the district court of Pawnee county, and sentenced to confinement at hard labor in the penitentiary for a period of 10 years from the 26th day of September, 1901, from which judgment and sentence he appeals to this court.

The only question presented is as to the sufficiency of the information. The objection urged is that the information does not state that the assault was made with a fe lonious intent. It charges "that on the third day of August, A. D. 1901, in said county of Pawnee and state of Kansas, one Charles Seely and Oliver Townsend did then and

there unlawfully and feloniously steal, take, and carry away from the person of George N. Harbold, forcibly, against his will, and by violence to his person, by jumping upon, seizing, choking, and holding him, the said George N. Harbold, by the throat, thirtythree dollars and thirty-three cents in currency and coins of the government of the United States of America, coinage and issue consisting of three certain ten-dollar national bank notes or United States treasury certificates or notes, each being current money of and in the United States of America, and each being of the value of ten dollars, of lawful money of the government of the United States." It contains other allegations not material in the disposition of this case.

Section 2064, Gen. St. 1901, under which this information was drawn, reads: "Every person who shall be convicted of feloniously taking the property of another from his person or in his presence, and against his will, by violence to his person or by putting him in fear of some immediate injury to his person, shall be adjudged guilty of robbery in the first degree." The objection urged in the court below, as well as in this court, is that the information does not charge a felonious intent. It will be observed that this information literally follows the statute, and that the statute defines the offense, not in its generic terms, but by specifically stating the facts which constitute the offense. It is said in 10 Enc. Pl. & Prac. 483, and authorities there cited, that, "while it is essential that all the facts constituting an offense must be so stated as to bring the defendant precisely within the law, it is a rule of universal application that when a statute creates an offense, and sets out the facts which constitute it, the offense may be sufficiently charged in the language of the statute." This rule has no application, however, where the statute creates an offense by generic terms. In such case an information or indictment following the statute would be defective. The facts constituting the particular offense must always be pleaded. It is contended that robbery is a felony at common law, and, since the statute has defined it in the words of the common law, an information, to be good, under the statute, must plead the facts so specifically as to be a good common-law indictment. Conceding this to be true, the facts pleaded in the present information would be a good indictment at common law, and it is such a form as is given in 3 Archb. Cr. Pl. & Prac. (12th Ed.) 417. The intent is not absent in the present pleading. The statement "that the appellant did feloniously assault, steal, take, and carry away from the person of George N. Harbold, against his will and by violence to his person, by jumping upon, seizing, choking, and holding him," are allegations which show the felonious intent. This information is sufficient. In State v. Ready, 44 Kan. 697, 26 Pac. 58, it was held that an informa

tion charging robbery in the language of the statute is sufficient.

Another objection made to this information is that it is not direct and certain as to the property stolen. Upon this question we think the information is amply sufficient.

The judgment of the court below is affirmed. All the justices concurring.

(65 Kan. 122)

PEOPLE'S NAT. BANK OF ROCK ISLAND, ILL., v. MYERS et al. (Supreme Court of Kansas, Division No. 1. June 7, 1902.) PLEADING-DEPARTURE-MONEY RECEIVED. 1. One who, through the design or misdirection of another, receives money which he knows belongs to a third person, cannot retain it for application on his own debt, due from the one who gave it to him.

2. A departure from the pleadings in those mere incidents of evidence which are not inherent in the substantive issues of the case, and which has not actually misled the adverse party to his prejudice, does not constitute a variance between the allegations and the proof.

(Syllabus by the Court.)

Error from district court, Jackson county; Marshall Gephart, Judge.

Action by the People's National Bank of Rock Island, Ill., against John Q. Myers and the State Bank of Holton, Kan. Judgment for defendants, and plaintiff brings error. Reversed.

Argued before DOSTER, C. J., and JOHNSTON, CUNNINGHAM, and ELLIS, JJ.

Wollman, Solomon & Cooper and John D. Myers, for plaintiff in error. Hayden & Hayden, for defendants in error.

DOSTEK, C. J. This is a proceeding in error from a judgment of the district court sustaining a demurrer to the plaintiff's evidence in an action for the wrongful conversion of plaintiff's money by defendants. One Morris was indebted to the plaintiff, the People's National Bank of Rock Island, Ill. The indebtedness was secured by mortgage on cattle. Morris was also indebted to the defendants, the State Bank of Holton, Kan., and to John Q. Myers, the president of said bank, residing at Holton. One John D. Myers was the agent of the People's National Bank, and also resided at Holton. Morris put one Ogee in charge of the cattle for shipment and sale, and sent them to Davis, McDonald & Davis, a commission firm at St. Joseph, Mo., with direction to instruct them to remit the proceeds of sale to John Q. Myers. This was done. On receipt of the money, John Q. Myers credited it on the indebtedness due to himself and to his bank. Neither he nor his bank had liens on the cattle, but they had actual knowledge of the existence of plaintiff's mortgage on them. The plaintiff's agent, John D. Myers, demanded the money, the proceeds of the

cattle sale, but was refused, whereupon aetion was instituted.

It is clear to us that the action is maintainable. One who, through the design or misdirection of another, receives money which he knows belongs to a third person, cannot retain it for application on his own debt, due from the one who designedly or mistakenly gave it to him. This proposition seems so evidently equitable as not to require argumentation. Cases quite like this one in which the principle as stated has been applied are Bank v. Gillespie, 137 U. S. 411, 11 Sup. Ct. 118, 34 L. Ed. 724; Bank v. King, 57 Pa. 202, 98 Am. Dec. 215; Burtnett v. Bank, 38 Mich. 630; Central Nat. Bank v. Connecticut Mut. Life Ins. Co., 104 U. S. 54, 26 L. Ed. 693; Bank v. Farwell, 7 C. C. A. 391, 58 Fed. 633; Cady v. Bank (Neb.) 65 N. W. 906; Alter v. Bank (Neb.) 73 N. W. 667; Bank v. Luman (Wyo.) 42 Pac. 874.

The principal contention of the defendant is that there was a variance between the plaintiff's petition and proof, and therefore that the demurrer to the evidence was rightly sustained. The petition alleged that Morris, the mortgagor, instructed Ogee, his agent, to direct Davis, McDonald & Davis, the commission firm, to send the proceeds of the cattle sale to John D. Myers, the plaintiff's agent, but that by mistake the remittance was made to John Q. Myers. The proof was that Morris had not given such instructions to Ogee, but, on the contrary, had instructed him to cause the remittance to be made to John Q. Myers. That did not constitute a variance justifying the court in sustaining the demurrer to the evidence. The substantive litigated fact in the case was the ownership of the money derived from the sale of the cattle, not the mistake or design of any of the parties in putting it in the hands of John Q. Myers. The question as to how the latter got the money, -whether by direction of Morris, or the mistake of Davis, McDonald & Davis, was immaterial, except as explanatory of the fact of his getting it. The money not being his, the inquiry as to how he got it was immaterial to the question of his right to keep it. "No variance between the allegations in a pleading, and the proof, is to be deemed material, unless it have actually misled the adverse party to his prejudice in maintaining his action or defense on the merits." Civ. Code, § 133. A departure from the pleadings in those mere incidents of evidence which are not inherent in the substantive issues of the case, and which has not misled the adverse party to his prejudice, does not constitute a variance between the allegations and the proof.

The judgment of the court below is reversed, with directions to overrule the demurrer to the evidence, and for a new trial. All the justices concurring.