"

to the effect that the front, which consisted the meaning of 5897, Rev. Stat. 1889, or “a of iron pillars and brick superstructure, was partial loss" only, and therefore falling within rendered useless in the condition in which it the provisions of 5899, Rev. Stat. 1889. To was left. The pillars were warped, and the ascertain the fact, the court directed the jury wall above them sprung out of plumb. The as follows: "By a total loss is meant that the side walls of the lower story were so badly building has lost its identity and specific charburned that the architects and carpenters testi- acter as a building and become so far disinfied that the building could not be repaired; tegrated that it cannot be properly designated that the old walls would have to be taken as a building, although some part of it may down, and the building rebuilt from the foun- remain standing.' If this is a correct instrucdation up. It appeared, however, that a por- tion on the law of the case, the finding of the tion of one of the walls in the second story jury must conclude the defendant. In Havens was not ruined by the fire, and the effort of v. Germania F. Ins. Co. 123 Mo. 403, 26 L. R. defendant was to show that this wall could be A. 107, the court in banc defined "a total shored up, and the burnt portion in the first loss," within the meaning of a similar section, story taken out and rebuilt; but the architects when applied to a building, to mean totally and builders testified that this would be much [or wholly] destroyed as a building, although more costly than taking down the whole of there is not an absolute extinction of all its the walls, and building them anew, and, even parts. It matters not that some débris remains if done, would not be as good as it was before which may be useful or valuable for some purthe fire. The joists were burnt, and the roof poses." Över thirty years ago, this court, in and window sills destroyed. The main conten- Nave v. Home Mut. Ins. Co. 37 Mo. 430, 90 tion is based upon the evidence that, so far as Am. Dec. 394, held that a policy of insurance the witnesses could see, the foundation was upon a building is an insurance upon the not hurt much, if any. Two builders testified building as such, and not upon the mafor defendant as to their estimates for rebuild- terial of which it was composed. In Linding the house. One, Mr. Kelly, testified it ner v. St. Paul F. & M. Ins. Co. 93 Wis. 526, could be repaired and replaced for $1,738.45; it was ruled by the supreme court of Wisconthe other, Mr. Hucke, estimated it at $1,688.50; sin that, where the identity of a building as but neither testified it could be done without such has been destroyed by fire, it is a total taking down all the old walls. Plaintiff offered loss, though some of its materials may not testimony of builders, also, who estimated the have been entirely destroyed. In that case it loss, one at $3,419.50, the other at $3,752. appeared from the evidence of the adjuster The other defense set up in the defendant's that the foundation and cellar of the house answer the failure of the plaintiff to furnish were entire, and a portion of the sills stood the defendant with plans and specifications of upon the stone work, and it was argued that. the building-grows out of the correspondence because the foundation was intact and had not between the parties. The company wrote Mr. been broken into a shapeless mass, it was not O'Keefe, under date of June 12, demanding "a total loss." But the court said this evian adjustment of the damages by appraisers. dence would not prevent the case from being Mr. O'Keefe answered this under date of June regarded as one of total loss. "It would not be 14, informing the company that there had been expected that the foundation and cellar would a total destruction of the building as such, and be utterly destroyed." The court quoted with demanding the face of the policy. On July approval the language used in Seyk v. Millers' 27, Mr. O'Keefe furnished the company with Nat. Ins. Co. 74 Wis. 72, 3 L. R. A. 523, that proofs of loss, which were duly received, and "it cannot be doubted that the identity and not objected to. On August 13, the company specific character of the insured buildings were wrote Mr. O'Keefe, acknowledging receipt of destroyed by the fire, although there was not the proofs, giving notice that they were willing an absolute extinction of all the parts thereof. to repair the building or adjust the damages This was entire destruction of the buildings, by appraisers. And on August 20, the com- within the meaning of the statute.' So clear. pany again wrote Mr. O'Keefe, as follows: indeed, did it seem to the court, that it held that the circuit court might have properly given a peremptory instruction that it was a total loss. To the same effect are the following decisions: Oshkosh Pkg. & Provision Co. v. Mercantile Ins. Co. 31 Fed. Rep. 200; German Ins Co. v. Eddy, 36 Neb. 461, 19 L. R. A. 707: Insurance Co. of N. A. v. Bachler, 44 Neb. 549; Hamburg-Bremen F. Ins. Co. v. Garlington, 66 Tex. 103, 59 Am. Rep. 613; Huck v. Globe Ins. Co. 127 Mass. 306, 34 Am. Rep. 373; Williams v. Hartford Ins. Co. 54 Cal. 450. In Corbett v. Spring Garden Ins. Co. 85 Hun, 250, the court said: "There was sufficient to go to the jury upon the question whether the building had 'lost its identity and specific character as a building.' If it had, then there was a total destruction within the meaning and intent of the parties and the policy." See also Royal Ins. Co. v. McIntyre (Tex. Civ. App.) 34 S. W. 669. We hold the instruction was proper, and that the court committed no error in refusing to instruct for defendant that if the cellar walls

John C. O'Keefe, Esq.

Dear Sir:

We hereby give you notice that we will repair the building, No. 1521 West Ninth street, Kansas City, Mo., insured under our policy 13,923, Kansas City, Mo., agency, and in this way make good the damage which occurred on the 3d day of June, 1894. You are hereby requested to furnish us with verified plans and specifications of this building for the purpose aforesaid.

This letter was replied to by the counsel for Mr. O'Keefe, informing the company that, if they would rebuild from the ground up, they could do so, but that the proposition to repair was impracticable, as no part of the old walls could be used, and their use had been forbidden by the city authorities.

1. The merits of this appeal hinge upon whether this was "a total loss" by fire, within

It appears that during the trial the defendant was brought into court, and kept there, in In that case also the court drew a distinction between the case of a prisoner on trial, and one subsequently brought before the court for sentence after trial, the court stating that none of the cases went any further than during the time of his trial, although, in that case, it was stated that if he had anything to say and thought he might not be able to do it so well while he was under irons the court would recommend it to the attorney general not to make a precedent of it that his irons might be taken off.

question is not likely to arise upon a new trial, | behalf, and under this constitutional guaranty it is not necessary to further notice this objec- the accused has the right to compulsory process tion than to observe that § 22, art. 1, of the state to procure the physical attendance of the witConstitution, guarantees to persons prosecuted ness at the trial. for crime the right to have compulsory process to compel the attendance of witnesses in their ancles, or some other stringent orders to the guards which would be equally unpleasant to the prisoners, because one of the prisoners had been twice before the court on a similar charge, and had escaped from jail, and was therefore a fugitive from justice, while on another occasion he had escaped from his guard, although recaptured, and also for the reason that both prisoners while in jail had been furnished with arms of a dangerous character by unknown persons and with keys to unlock their handcuffs, and bad also found means or implements by which to make their escape, the court regarding them as desperate men who, if unmanacled, could easily disarm the guard and effect their escape. This was held to be a matter within the discretion of the trial court, whose action could not be reversed unless it was shown that there was a clear case of abuse as to such discretion, the record in that case not showing any such abuse.

In Faire v. State, 58 Ala. 74, 93, there was a dissenting opinion by Chief Justice Brickell, in which he held that it was not a matter of discretion with the judge whether the prisoner should be brought to the bar or tried in fetters, although he admitted that there might possibly be a necessity for fettering a prisoner, and if such necessity was shown it might be the duty of the court to order it, and he deemed the action of the court reviewable, and thought the judgment of conviction should be reversed unless it clearly appeared that there was an immediate pressing necessity for the order.

Yet the mere fact that the prisoner had assaulted a person in court about three months before the term at which he was tried would not be sufficient

to justify the court in assuming, on his trial for life, that he would be guilty of similar outrages, and

thus order him to be shackled. State v. Kring, 64

Mo. 591, Affirming 1 Mo. App. 438.

In State v. Stalcup, 24 N. C. (2 Ired. L.) 50, the

But even upon his arraignment it is held in American cases that unless there is danger of escape, he should not be brought in irons. Faire v. State, 58 Ala. 74, 80, citing 1Bishop, Crim. Proc. § 731; People v. Harrington, 42 Cal. 165, 166, 10 Am. Rep. 296. See also State v. Lewis, 19 Kan. 260, 263, 27 Am. Rep. 113, supra, II.

IV. As a ground of reversal and review. The rule would seem to be that, when the record affirmatively discloses the fact that there is no reaon whatever for placing shackles or manacles dergoing trial, a question of law arises which may upon the prisoner, against his protest, while unbe reviewed on appeal, and the judgment reversedTerritory v. Kelly, 2 N. M. 297, 302.

Yet the fact that the court or sheriff deemed it necessary to shackle a prisoner in order to prevent his escape during trial is no ground for reversal. Lee v. State, 51 Miss. 56, 574.

When, however, the record discloses some valid or reasonable ground of apprehension that the prisoner may attempt to escape or injure the bystanders or the officers in charge, or will be otherwise disorderly or dangerous, it shall be left entirely to the discretion of the trial court to determine whether the prisoner should be ironed or not.

and when the record is silent as to whether there is or is not any valid excuse for retaining the irons upon the prisoner during the trial, the appellate court will presume that the court below exercised a sound and reasonable discretion in refusing to

right of an officer arresting a prisoner under a state warrant to secure him by shackles was held justifiable, when, in the opinion of such officer, it was necessary so to do in order to secure his pris-order the irons to be removed. Territory v. Kelly. oner, but that case did not raise the question of the right to produce his prisoner on trial in such a condition. See Rainey v. State, 20 Tex. App. 455, 472, infra, IV.

III. Upon his arraignment and sentence. In King v. Waite, 1 Leach, C. L. 28, 36, the prisoner was charged with a felony in the embezzlement of an East India bond committed to his care, and at the time of his arraignment desired that his irons might be taken off. The court informed him that it had no authority for that purpose until the jury were charged to try him, whereupon he pleaded not guilty, and being put upon trial his fetters were immediately knocked off.

So, in Layer's Case, 16 How. St. Tr. 94, it was urged by counsel that the prisoner's irons should be taken off before he pleaded. The court stated that there was no doubt that when the prisoner came up for his trial he was not to be in vinculis during his trial, but should be so far free that he should have the use of his reason and all advantages to clear his innocence, but that when he was only called upon to plead by advice of his counsel he was not to be then tried, and that when he came up for trial if he made complaint the court would take care that he should be in a condition proper to make his defense, the court making the distinction between arraigning the prisoner to plead and his trial.

2 N. M. 297, 305.

grounds for a new trial was that the defendant was In State v. Smith, 114 Mo. 406, 423, one of the

allowed to remain in shackles after the trial had begun. It was held that such a statement could not be supported by ex parte affidavits, and that the only way in which matters occurring in the presence of the court could be preserved was by incorporating them in the bill of exceptions.

It has been said that the accused has a right to be present during the trial and at the return of the verdict, and that when deprived of these privileges by being imprisoned in a jail or in any other improper manner the verdict returned against him should not be followed by a judgment or sentence of the court, but a new trial should be ordered if requested. Rose v. State, 20 Ohio, 33. In this case, however, it did not appear that the prisoner was manacled or shackled upon the first trial, and the case is therefore here cited only as an authority for showing that he must not be deprived of his privileges by being imprisoned in jail or "in any other improper manner," as the shackles placed upon the prisoner may be held to be an imprisonment as depriving him of his personal liberty; upon which see People v. Harrington, infra.

In People v. Harrington, 42 Cal. 165, 166, 10 Am.. Rep. 296, the prisoner, indicted, tried, and convicted of the crime of robbery, appeared in shack

The first error assigned by appellant is the refusal of the court to grant a continuance on appellant's application because of the absence of a material witness for appellant. The affidavit, while rather general in its statement of the acts, seems to be sufficient to have entitled appellant to further time. But, as this the court directing the necessary precautions to be

on behalf of the state, and moves to dismiss, procured it to be filed. The question not bethe appeal because appellant's brief was not ing one of the jurisdiction of the appeal, the filed in due time. It appears that the time appellant's excuse for failure to file his brief within which appellant's brief ought to have within the proper time is deemed sufficient, and been filed expired on the 2d day of June. 1897, the motion to dismiss denied. and that the brief was not filed until the 23d day of the same month. But the counsel who appeared for the defendant at the trial had removed from the state before the brief was filed. The defendant was at the time confined in jail, and, so soon as he learned that the brief was not filed within the proper time, ton, 42 Cal. 165, 10 Am. Rep. 296, the language of the court forbids the construction that it would undertaken, but not in the presence of the jury, and all circumstances be error to proceed with the trial of the prisoner without removing his shackles, and also that some importance should be at tached to the fact that in that case the decision of the court that the prisoner was entitled to appear for trial "free from all manner of shackles or bonds" was qualified by the emphatic language. "unless there is danger of his escape."

The rule applies to prisoners under indictment of the highest crime, unless there is danger of escape, and then they may be brought with irons. Faire v. State, 58 Ala. 74, 80, citing 2 Hale, P. C. | p. 219; 4 Bl. Com. 322; Lee v. State, 51 Miss. 566, 574; Matthews v. State, 9 Lea, 128, 130, 42 Am. Rep. 667.

made as little apparent as possible, and that irons should not be put on his hands. The court stated that the judge and sheriff were sworn officers, and there did not seem to be a violation of the usages of the court, or of any right of the prisoner, for the court, in incidental matters connected with the conduct of its business, to act on the statement of its executive officer without requiring him to take the oath as to the truth of his representations, and that to require a public disclosure and trial of the facts, as a preliminary to the placing of irons on prisoners when on trial, would be much more likely to create prejudice against the prisoner than quietly to order the same, as was done in that case. Faire v. State, 58 Ala. 74.

In Faire v. State, 58 Ala. 74, wherein the prisoner remained shackled for fear of an escape, and to In State v. Lewis, 19 Kan. 260, 263, 27 Am. Rep. prevent his carrying out certain threats, the court 113, the defendant in custody, charged with burdrew a distinction between that case and the prac- glary in the second degree, while awaiting trial. tice as stated by Lord Chief Justice Holt, upon the broke jail and escaped. He was subsequently ground that the remarks made by him were made arrested under a warrant issued by a justice of the on the trial of a case which was marked by no peace and charged with breaking jail. He was facts or circumstances rendering it necessary that taken before the justice for a preliminary examthe prisoner should be shackled, and were intended ination without his handcuffs being removed, and to express more a rule of judicial propriety than of waived a preliminary examination and was remunicipal law, the justice then dealing with the cus- turned to jail. He was subsequently tried for burtom which had become common and oppressive, | glary and acquitted, and later an information was and not with a case whose circumstances showed | laid against him, charging him with the breaking the necessity of bonds to prevent escape.

So, if the court is of the opinion that the reten. tion of irons upon the limbs of the prisoner is a reasonable precaution to prevent an escape, or to insure the safety of the bystanders, and the orderly conduct of the prisoner, he may remain shackled. Territory v. Kelly 2 N. M. 297, 302.

And the court has power, at the commencement or during the progress of the trial, to make such orders as may be necessary to secure a quiet and safe one, but there must be some reason, based on the conduct of the prisoner at the time of the trial, to authorize so important a right to be forfeited. State v. Kring, 64 Mo. 591, Affirming 1 Mo. App. 438.

Again, in Rex v. Rogers, 3 Burr. 1812, the prisoners had broken open the jail after having murdered the jailer, and had become a terror to the neighborhood, and from a memorandum to the case it appears that they remained chained together during the whole proceeding.

Where it appeared from representations made by the sheriff, not under cath and inaudible to anyone save the court, and in a voice not to be heard either by the jury, the defendant, or his counsel, that the prisoner had told the sheriff that he would rather die than be hung or sent to the penitentiary, and that if the jury found him guilty he would not come out of the court-house alive, as he would es. cape or the officer would have to shoot him, and that from the character of the prisoner, and his conduct, the sheriff entertained serious apprehensions that he would attempt an escape and create a scene in the court room, if not secured, after the first day of the trial, clasps, connected by a chain 18 inches long by 1 inches in diameter, were placed on his ankles by order of

of jail and escaping, to which, upon arraignment, he pleaded, inter alia, that he was handcuffed and in the custody of the sheriff and policeman when be waived the preliminary examination, and that therefore such waiver was a nullity and the county attorney had no power to file such information. The court held that such plea was bad and sustained the demurrer thereto.

Where the proceedings had been temporarily suspended to allow the sheriff time to summon additional jurors, and to remove the prisoner to the dock in the rear of the court room and there handcuff him in order to prevent escape, and while there some of the jurors who had failed to answer upon the first call appeared and were passed upon by the prosecution and accepted by the prisoner's counsel before he had returned to his side, and there had been ample time for objection, all that occurred being within the view and hearing of the prisoner, and it was only intended that he should be fettered during the suspension of the proceedings in making up the jury, it was held that such proceeding was in conflict with the humane spirit of the law that required a prisoner to be unfettered during his trial, and therefore the verdict could not be reversed upon that ground. Matthews v. State, 9 Leu, 128, 131, 42 Am. Rep. 667.

So, in Poe v. State, 10 Lea, 673, 675, the prisoners, charged with murder in the first degree, were brought up for trial manacled together by the wrist, and after one witness had been examined, the prisoners' counsel moved for an order upon the sheriff to remove the manacles as being an unlawful restraint, prejudicial to their rights while on trial, but the trial judge declined to make the order upon the ground that the loose manner in which they were guarded required either the man

behalf, and under this constitutional guaranty the accused has the right to compulsory process to procure the physical attendance of the witness at the trial.

It appears that during the trial the defendant was brought into court, and kept there, in

In that case also the court drew a distinction besubsequently brought before the court for sentence after trial, the court stating that none of the cases went any further than during the time of his trial, although, in that case, it was stated that if he had anything to say and thought he might not be able to do it so well while he was under irons the court would recommend it to the attorney general not to make a precedent of it that his irons might be taken off.

question is not likely to arise upon a new trial, | it is not necessary to further notice this objection than to observe that $ 22, art. 1, of the state Constitution, guarantees to persons prosecuted for crime the right to have compulsory process to compel the attendance of witnesses in their ancles, or some other stringent orders to the guards which would be equally unpleasant to the prison-tween the case of a prisoner on trial, and one ers, because one of the prisoners had been twice before the court on a similar charge, and had escaped from jail, and was therefore a fugitive from justice, while on another occasion he had escaped from his guard, although recaptured, and also for the reason that both prisoners while in jail had been furnished with arms of a dangerous character by unknown persons and with keys to unlock their handcuffs, and bad also found means or implements by which to make their escape, the court regarding them as desperate men who, if unmanacled, could easily disarm the guard and effect their escape. This was held to be a matter within the discretion of the trial court, whose action could not be reversed unless it was shown that there was a clear case of abuse as to such discretion, the record in that case not showing any such abuse.

But even upon his arraignment it is held in American cases that unless there is danger of es. cape, he should not be brought in irons. Faire v. State, 58 Ala. 74, 80, citing 1Bishop, Crim. Proc. § 731: People v. Harrington. 42 Cal. 165, 166, 10 Am. Rep. 296. See also State v. Lewis, 19 Kan. 260, 263, 27 Am. Rep. 113, supra, II.

IV. As a ground of reversal and review. The rule would seem to be that, when the record affirmatively discloses the fact that there is no reason whatever for placing shackles or manacles upon the prisoner, against his protest, while un

In Faire v. State, 58 Ala. 74, 93, there was a dissenting opinion by Chief Justice Brickell, in which he held that it was not a matter of discretion with the judge whether the prisoner should be brought to the bar or tried in fetters, although he admitted that there might possibly be a necessity for fetter-dergoing trial, a question of law arises which may be reviewed on appeal, and the judgment reverseding a prisoner, and if such necessity was shown it might be the duty of the court to order it, and he Territory v. Kelly, 2 N. M. 297, 302.

deemed the action of the court reviewable, and thought the judgment of conviction should be reversed unless it clearly appeared that there was an immediate pressing necessity for the order.

Yet the mere fact that the prisoner had assaulted a person in court about three months before the term at which he was tried would not be sufficient to justify the court in assuming, on his trial for life, that he would be guilty of similar outrages, and thus order him to be shackled. State v. Kring, 64

Mo. 591, Affirming 1 Mo. App. 438.

Yet the fact that the court or sheriff deemed it necessary to shackle a prisoner in order to prevent his escape during trial is no ground for reversal. Lee v. State, 51 Miss. 56, 574.

When, however, the record discloses some valid prisoner may attempt to escape or injure the byor reasonable ground of apprehension that the standers or the officers in charge, or will be otherwise disorderly or dangerous, it shall be left entirely to the discretion of the trial court to determine whether the prisoner should be ironed or not. and when the record is silent as to whether there In State v. Stalcup, 24 N. C. (2 Ired. L.) 50, the is or is not any valid excuse for retaining the irons right of an officer arresting a prisoner under a upon the prisoner during the trial, the appellate state warrant to secure him by shackles was held court will presume that the court below exercised justifiable, when, in the opinion of such officer, it a sound and reasonable discretion in refusing to was necessary so to do in order to secure his pris-order the irons to be removed. Territory v. Kelly, oner, but that case did not raise the question of the right to produce his prisoner on trial in such a con

dition. See Rainey v. State, 20 Tex. App. 455, 472, infra, IV.

III. Upon his arraignment and sentence. In King v. Waite, 1 Leach, C. L. 28, 36, the prisoner was charged with a felony in the embezzlement of an East India bond committed to his care, and at the time of his arraignment desired that his irons might be taken off. The court informed him that it had no authority for that purpose until the jury were charged to try him, whereupon he pleaded not guilty, and being put upon trial his fetters were immediately knocked off.

So, in Layer's Case, 16 How. St. Tr. 94, it was urged by counsel that the prisoner's irons should be taken off before he pleaded. The court stated that there was no doubt that when the prisoner came up for his trial he was not to be in vinculis during his trial, but should be so far free that he should have the use of his reason and all advantages to clear his innocence, but that when he was only called upon to plead by advice of his counsel he was not to be then tried, and that when he came up for trial if he made complaint the court would take care that he should be in a condition proper to make his defense, the court making the distinction between arraigning the prisoner to plead and his trial.

2 N. M. 297, 305.

grounds for a new trial was that the defendant was In State v. Smith, 114 Mo. 406, 423, one of the

allowed to remain in shackles after the trial had begun. It was held that such a statement could not be supported by ex parte affidavits, and that the only way in which matters occurring in the presence of the court could be preserved was by incorporating them in the bill of exceptions.

It has been said that the accused has a right to be present during the trial and at the return of the verdict, and that when deprived of these privileges. by being imprisoned in a jail or in any other improper manner the verdict returned against him should not be followed by a judgment or sentence of the court, but a new trial should be ordered if requested. Rose v. State, 20 Ohio, 33. In this case, however, it did not appear that the prisoner was manacled or shackled upon the first trial, and the case is therefore here cited only as an authority for showing that he must not be deprived of his privileges by being imprisoned in jail or "in any other improper manner," as the shackles placed upon the prisoner may be held to be an imprisonment as depriving him of his personal liberty; upon which see People v. Harrington, infra.

In People v. Harrington, 42 Cal. 165, 166, 10 Am. Rep. 296, the prisoner, indicted, tried, and convicted of the crime of robbery, appeared in shack