were talking to Sherwood, and joking when [ or dangerous? A. No." The jury having care, and that he was not guilty of contributory negligence, we have only to consider whether such findings are supported by the evidence. We have already referred to and quoted some of this evidence. The jury had presented to them the condition of the ground, the manner of the construction of the wall and the materials used, the fact that rains had just fallen, the effect of the water upon the wall, its appearance some time before and at the time it fell and of the ruins remaining, the conduct and conversation of the gang foreman and of fellow workmen, the notice to and conduct of the superintendent and of the yard foreman, and from all this, and all the other circumstances in evidence, which have been duly considered, found that the deceased was free from contributory negligence, and this finding, based on competent evidence, must, with the other findings, be sustained upon principles so often stated that repetition here is useless. For the same reasons the order overruling the demurrer to the evidence is approved. you told the men they had better look out? found that the deceased exercised ordinary A. Simply because if I had told them the plain truth about it they would not work, and I would have been out of men; that would be all; they would quit." It is claimed that the crude appearance of this wall was such as to lead to jocular remarks concerning it, but whether they were made in jest or earnestness was for the jury to determine. The defendant argues that the dangerous conditions were so obvious that it must be held that he assumed the risk. The opinion in Walker v. Scott, 67 Kan. 814, 64 Pac. 615, is cited to sustain the contention that the foreman had no superior knowledge to that of the deceased, and that, with all the means of knowledge that his superiors had he voluntarily encountered the danger. In the Walker Case, the injured person was not only aware of the danger, but had on several occasions expressed his fear that a cave-in would occur, that it was unsafe, and that some one would be hurt. Nothing of the kind appears here. The only knowledge attributable to Mussulman is to be inferred from the appearances surrounding him, the conversation of the workmen, and the general knowledge that we must presume he possessed. The dangers were not so apparent as to deter others, nor such as to cause the superintendent or the yard foreman, both of whom had full knowledge of the situation, to take steps to protect their men, and the foreman of this particular gang, a man of experience, upon whom the superintendent says he relied, continued to work, and permitted the others to work, close to this dangerous wall. With all the evidence before them, the jury found that the danger was not obvious to persons of ordinary intelligence. This finding, supported as it is by competent evidence, and approved by the district court, cannot be set aside by this court. It is doubtful whether the doctrine of assumed risk properly applies in this case. Railway Co. v. 'Loosley, 76 Kan. 103, 90 Pac. 990. It may not be important to decide whether the circumstances relied upon to show an assumption of risk are appropriate to that head or to that of contributory negligence, for that defense was also relied upon and must be considered. Here, too, the jury found against the defendant's contentions, as will appear from the general verdict and from the following special findings: "Q. 19. Do you find from the evidence that, at the time Isaac W. Mussulman sustained injury, he knew the dangerous condition of said brick wall? A. No. Q. 20. Do you find from the evidence that, at the time Isaac W. Mussulman sustained injury, he was exercising ordinary care to prevent injury to himself? A. Yes. * * Q. Did Taylor, the foreman of the setters, tell the men who were No complaint is made of the instructions or the incidental rulings of the court, nor of the findings of negligence of the defendant. · The judgment is affirmed. (79 Kan. 82) MCKELVEY v. McKELVEY. (Supreme Court of Kansas. Dec. 12, 1908. Rehearing Denied Jan. 20, 1909.) 1. DOWER (8 44*)-GIFTS TO THIRD PARTY— EFFECT-RIGHTS OF WIFE. A husband may, in good faith, make a gift of land owned by him in this state, of which his wife has made no conveyance, without defrauding her, if she has never resided here; but, to make the gift effective to bar her statutory right accruing after his death, he must consummate it by a conveyance, and the grantee must not be guilty of actual fraud in obtaining it. [Ed. Note.-For other cases, see Dower, Cent. Dig. 3; Dec. Dig. § 44.*] 2. DOWER (§ 79*) - GIFTS BY HUSBAND — FRAUD AS TO WIFE EVIDENCE. Certain facts stated in the opinion are held to show a fraudulent attempt to defeat a widow's statutory right in land owned by her husband in his lifetime of which neither he nor she had made a conveyance. [Ed. Note. For other cases, see Dower, Dec. Dig. § 79.*] (Syllabus by the Court.) Error from District Court, Johnson County; W. H. Sheldon, Judge. Action by Anna K. McKelvey against John H. Clay Horner and I. O. Pickering, for plaintiff in error. Ogg & Scott and J. P. Hindman, for defendant in error. BURCH, J. The action in the district working with him that the wall was unsafe court was brought by a widow to recover the share of her deceased husband's estate years, and purporting to be signed by the given her by the statute. A former judgment against her was reversed in the case of McKelvey v. McKelvey, 75 Kan. 325, 89 Pac. 663, 121 Am. St. Rep. 435. Upon a retrial the court found the facts in detail, and with the findings of fact included certain inferences of fact relating to good faith, want of collusion, innocence of purpose to defraud, and some other matters. Conclusions of law were stated adverse to the plaintiff, and judgment was again rendered against her. This court does not feel bound by the inference of fact derived by the trial court from the particular facts found. It is able to deduce its own conclusions, and, with all due respect to the careful and conscientious judge who presided at the trial, to the mind of this court the findings spell fraud in letters too bold to be effaced by the presumption of rectitude indulged by the law when the conduct of frail human beings is under consideration. John C. McKelvey, a resident of Illinois, owned the land in controversy. He had a family of children by a first wife, which included the defendant, John A. McKelvey. He married the plaintiff, Anna K. McKelvey, and had a daughter by her. He wanted the land for the first set of children. His wife wanted her daughter to have a share. In 1879 the husband wished to deed the land away, but the wife refused to sign unless her daughter received part of the proceeds. The husband persisted in the determination that the children by his former wife should have the land, and the attitude of his wife furnished a sufficient motive for what follow.ed. In 1883 the defendant, John A. McKelvey, was a partner with his father in the butcher business in Illinois and did not have to exceed $150. In March of that year the father and son came to Kansas. The father put the son in charge of the land and furnished him a team and tools with which to go to farming, telling others he intended the land for the three children by his first wife. It appears that the father was in Kansas on this occasion about three weeks. While here he expressed a desire to dispose of the land in a way that he could get it back. He said he needed some money, but desired to save the land for his children. On March 23, 1883, when ready to return to Illinois (the evidence shows it was on the day he came to town to go home), he asked his cousin to introduce him to Dr. James Bell of Olathe, saying he desired to meet the doctor, as he understood the doctor had money, and he might be able to arrange to let the doctor have the land and so get some money. The introduction followed, but the cousin was not a witness to the calamity which immediately befell. All we know is that, on the same day, Dr. Bell handed to an attorney of Olathe a promissory note to one Angus Beaurmond for $2,719.35, dated at St. Louis, February 18, 1879, due in two elder McKelvey, and requested the attorney to bring suit upon it. The doctor furnished the deposit for costs and agreed with the attorney upon a fee. Bell represented to the attorney that said Angus Beaurmond was a friend of his, but, except for this, nobody, so far as the record discloses, ever heard of him before or since. On the same day suit was brought. A summons was issued, but never returned. McKelvey accepted service and agreed to judgment at the March term of court, but was careful to stipulate that his land should not be attached. Four days afterward, the cause was placed on the trial docket, and judgment was taken; McKelvey not being present or represented by counsel. Seven days after judgment execution issued. The land was seized and sold, not to the supposed creditor, but to Dr. Bell, for $4,000. Only $847.74 was paid in cash; the attorney receipting to the sheriff for the amount of the judgment except costs. The attorney received no money from the sheriff and paid no money to Bell, and, of course, there is no evidence that Beaurmond was ever paid anything by anybody. On June 4th the sheriff's sale was confirmed, and a deed was ordered to Dr. Bell. The elder McKelvey sent to his son an order upon the clerk of the court dated in Illinois on June 5th for the balance of the proceeds of the sale, less costs. On June 9th the defendant drew this balance in the sum of $796.04. What became of the money does not appear, and what else, if anything, occurred between father and son, is undisclosed. Eight months afterward Dr. Bell deeded the land to the defendant and his brother and sister of the whole blood. The deed was procured to be made by John C. McKelvey. The consideration named was $8,000. What transpired between McKelvey and Bell is undisclosed. The defendant was not called into the transaction until the executed deed was delivered to him. No explanation is offered as to how John C. McKelvey could have raised even the amount of the judgment, much less the deed price of the land. The defendant paid nothing for the land, and his brother and sister paid nothing. He withheld the deed from record for more than eight years. He paid the taxes, which, under the law, fell due and were payable while Dr. Bell held the sheriff's deed, taking the receipt in the name of Dr. Bell. He continued to take his tax receipts in Dr. Bell's name for many years. While doing this, and while withholding Dr. Bell's deed to him from the records, he visited his father and family in Illinois. His stepmother said to him she heard the land was sold. He says she asked him if it had been sold. He returned an answer which on its face was intended to conceal the facts within his knowledge, to suppress the truth, and to mislead the plaintiff. He said: "I don't know whether it could be sold without your signing the deed." She remained ignorant of what had taken place until after her husband's death. In the year 1892 the defendant took deeds for the supposed interests of his brother and sister and filed all his deeds for record. His possession was not disturbed or inquired into by Dr. Bell, and he paid no rent to Dr. Bell or to his brother and sister, and has received all the profits of the use of the land. His father died in 1903. Within a year suit was duly commenced by the widow, who has never resided in this state. A portion of her interest has been deeded to I. O. Pickering, a defendant in error, who also complains of the judgment. It is not necessary to debate the meaning of these facts. The Beaurmond suit and judgment, the sheriff's deed, and the Bell deed were fraudulent contrivances to cut off the plaintiff's statutory rights. The defendant was not innocent in the matter. If not privy to the fraud at its inception, he became so later, lent his aid to make it effectual, and knowingly attempted to profit by it. The court is satisfied with the statement of controlling legal principles made in the former decision. An additional question is brought into the case by a finding that J. C. McKelvey made a completed parol gift of the land to the defendant and his brother and sister when the defendant was first placed upon the land and set to farming. The facts specifically found are inconsistent with such a conclusion. J. C. McKelvey claimed at the time, and continued to assert, the right to dispose of the land as his own, and in the written acceptance of service in the Beaurmond suit he designated it as his. It is true McKelvey was determined the children of his first wife should have the land, but they could obtain it only under certain well-understood conditions. A sur viving wife takes one-half in value of all real estate owned by her husband during his lifetime, of which she has made no conveyance, which has not been sold under execution or other judicial sale, and, if a nonresident, of which the husband has made no conveyance. Gen. St. 1901, § 2510. An abuse of the machinery of the law resulting in a fraudulent judicial sale is no sale so far as the party defrauded is concerned. The pretended sale to Dr. Bell vested no title in him as against the plaintiff. Dr. Bell had nothing which he could effectually convey, and the defendant obtained nothing legally defensible from him. The only other way the plaintiff could be deprived of her interest was through a conveyance made by her husband. The statute does not recognize parol gifts of real estate. To do so would expose a widow to the peril of fraudulent claims, provable by mere word of mouth, trumped up after the husband's death. A husband may, in good faith, lawfully make a gift of land owned by him in this state without defrauding his wife, if she has never resided here; but, to make it effective to bar her statutory right accruing after his death, he must consummate the gift by a conveyance, and the grantee must not be guilty of actual fraud in obtaining it. The case of Small v. Small, 56 Kan. 1, 42 Pac. 323, 30 L. R. A. 243, 54 Am. St. Rep. 581, cited by the defendant, confirms this view, instead of establishing the contrary. The judgment of the district court is reversed. The district court is directed to strike from the findings of fact conclusions of fact inconsistent with those drawn by this court, and to render judgment in favor of the plaintiff and the cross-petitioner, Pickering, upon the findings of fact as modified. All the Justices concur. (1 Okl Cr. 528) In re MCNAUGHT. (Criminal Court of Appeals of Oklahoma. Jan. 11, 1909.) 1. CONSTITUTIONAL LAW (§ 265*)—“DUE PROCESS OF LAW" INDICTMENT BY GRAND JURY. sentence for life imprisonment thereon, are not illegal and void. 6. HABEAS Corpus (§ 22*)—-Grounds for RE LIEF. * Section 2411, Gen. St. 1908, provides: "No Court or judge shall inquire into the legality of any judgment or process, whereby the party is in custody, or discharge him when the term of commitment has not expired in either of the * * (2) Upon any process cases following: issued on any final judgment of a court of com(4) Upon a warrant or commitment issued from the district court, or any other court of competent jurisdiction, upon an indictment or information." And a judgment by a court of competent jurisdiction, valid on its face, is an unanswerable return to a writ of habeas corpus issued for the relief of a prisoner imprisoned by virtue of such judgment. The words "due process of law" in the fifth and fourteenth amendments to the Constitution of the United States, and in section 7 of the Bill of Rights of the Constitution of Okla-petent jurisdiction; homa (Bunn's Ed. § 16), do not necessarily require an indictment by a grand jury in prosecution by the state for the crime of murder committed after statehood. a [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. § 755; Dec. Dig. § 265.* For other definitions, see Words and Phrases, vol. 3, pp. 2227-2256; vol. 8, p. 7644.] 2. INDICTMENT AND INFORMATION (§ 39*) "INFORMATION.' In England, at common law, an "information" was an accusation of a criminal character exhibited against a person charging him or her with a criminal offense by the Attorney General or the Solicitor General and under his oath of office. In the United States, in the absence of statutes changing its character, it is filed by the officer, whatever his title, who exercises the function of prosecuting attorney for the county. [Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. § 150; Dec. Dig. $39.* For other definitions, see Words and Phrases, vol. 4, pp. 3585-3589.] 3. INDICTMENT AND INFORMATION (§ 3*)-NECESSITY OF INDICTMENT. The Constitution of Oklahoma (Const. art. 2. § 17 [Bunn's Ed. 26]) authorizes prosecutions for felonies by information after examination and commitment by a magistrate without indictment by a grand jury. The criminal procedure act, being chapter 18, Gen. St. 1908, makes provisions for a preliminary examination before a committing magistrate in the presence of the accused, who is entitled to the aid of counsel and the right of examination of witnesses, whose testimony may be reduced to writing at his request; and upon a finding by the magistrate that a felony has been committed, and that there is sufficient cause to believe the accused guilty thereof, an order, holding him to answer thereto before the district court of the county in which the offense is triable, shall be made, and the prosecution in that county may be by indictment or information, as they are concurrent remedies. [Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. .§ 22; Dec. Dig. § 3.*] 4. CONSTITUTIONAL LAW (§ 29*)-CONSTRUCTION-SELF-EXECUTING PROVISIONS. The provision of the Constitution that provides for and authorizes the prosecution of felonies by information after the accused has had a preliminary examination before an examining magistrate, or having waived such preliminary examination (being section 17 of the Bill of Rights [Bunn's Ed. § 26]), is self-executing from the time of the organization of this state. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 32; Dec. Dig. § 29.*] 5. PROSECUTION BY INFORMATION. A conviction after examination and commitment upon a written complaint charging the crime of murder, committed after statehood, upon information duly verified and filed in the district court for murder, and a trial, and conviction of manslaughter in the first degree, and [Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. 8 192; Dec. Dig. § 22.*] 7. HABEAS Corpus (§ 30*)-GROUNDS FOR RELIEF IRREGULARITIES IN SELECTION OF JURY. Irregularities in the selection and impaneling of the trial jury do not affect the jurisdiction of the court so as to justify release by habeas corpus of a person so convicted. [Ed. Note. For other cases, see Habeas Corpus, Cent. Dig. § 25; Dec. Dig. § 30.*] & HABEAS CORPUS (§ 25*)-Grounds for Re LIEF. The review of a judgment of conviction and imprisonment by writ of habeas corpus is limited to the questions: Had the court which rendered the judgment jurisdiction of the subject-matter and of the person convicted? And did the court in the course of the proceedings which resulted in the judgment exceed its jurisdiction? [Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. §§ 21, 23; Dec. Dig. § 25.*] 9. HABEAS CORPUS (§ 30*)—Grounds for RE LIEF SENTENCE. If the vice of the sentence relied on is that it is oppressive and excessive in character, and not that it is of an entirely different character from that authorized by law, to the extent that it is void, the prisoner will be remanded. [Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. § 25; Dec. Dig. § 30.*] 10. HABEAS CORPUS ( 4*) - GROUNDS FOR RELIEF REMEDY BY APPEAL. The Criminal Code of Oklahoma provides that: "Whenever any person is declared punishable for a crime by imprisonment in the state prison for a term not less than any specified number of years, and no limit to the duration of such imprisonment is declared, the court authorized to pronounce judgment upon such conviction, may in its discretion sentence such offender to imprisonment during his natural life, or for any number of years not less than such as are prescribed." And the Criminal Court of Appeals will not on habeas corpus review the question of excessive punishment. [Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. § 4; Dec. Dig. § 4.*] (Syllabus by the Court.) 11. INDICTMENT AND INFORMATION (8 17*) "INDICTMENT." At common law an "indictment" was an accusation at the suit of the sovereign, based on the oath of 12 men of the county where the offense was committed. [Ed. Note.-For other cases, see Indictment and Information, Dec. Dig. § 17.*] For other definitions, see Words and Phrases, vol. 4, pp. 3551-3555.] For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 99 P.-16 The petitioner, George W. McNaught, was convicted in the district court of Kingfisher county of manslaughter in the first degree, and he was sentenced to life imprisonment in the state penitentiary under an information filed by the county attorney of said county. On December 7, 1908, he filed in this court a petition signed and verified by his oath, and which, omitting the formal parts, was as follows: repealed by the act of said Legislature ap- Original application by George W. Mc- | nexed, marked 'Exhibit C' and made a part Naught for a writ of habeas corpus. Writ hereof as if written herein in full. That denied, and petitioner remanded. thereafter, to wit, on the 24th day of October, 1908, the said district court adjourned sine die for said term, and is not now and has not been in session since the 24th day of October, last. That ever since said judgment was rendered your petitioner has been and is now unlawfully restrained of his liberty and confined in the common jail of Kingfisher county, Oklahoma, by M. M. Tate, the duly elected, qualified, and acting sheriff of said county of Kingfisher, under "Comes now George W. McNaught of and by virtue of said judgment and sentence, Kingfisher, Oklahoma, and alleges: That on and said sheriff is about to, and will, unless the 28th day of September, 1908, the same restrained by order of court, unlawfully exebeing a regular judicial day of the Septem- cute said judgment and sentence by taking ber, 1908, term of the district court sitting and transporting your petitioner to said in and for the county of Kingfisher, state of penitentiary as in said judgment ordered. Oklahoma, M. W. Hinch, the county attorney That the jury, before whom your petitioner of Kingfisher county, in said state, filed in was tried, was selected by order of the said district court a certain information, a judge of said district court from a jury copy of which is hereto attached and marked list made and selected by the jury commis'Exhibit A' and made a part hereof, the sioners appointed by an order or the judge of same as if written herein in full, charging said district court, dated January 6, 1908, your petitioner with the crime of murder. according to and in pursuance of an act of That thereafter, to wit, on the 29th day of the Legislature of the state of Oklahoma, September, 1908, your petitioner duly ap-approved December 21, 1907, which act was peared in open court and entered his plea of not guilty to said information. That thereafter, and during the said term of said district court, your petitioner was placed upon trial and tried in open court upon said information and plea thereto before said district court and a jury, and thereafter and during said term of court, to wit, on the 20th day of October, 1908, said jury returned into ary, 1908. That after filing his plea and beopen court with its verdict in said cause fore the jury, before whom your petitioner finding your petitioner guilty of manslaugh- was tried, was sworn to try said cause, your ter in the first degree, a copy of which ver- petitioner challenged said jury panel for the dict is hereto annexed marked 'exhibit B' reason that said jury was not selected and and is made a part hereof, the same as if drawn as required by law (in accordance written in full; and said verdict was re- with said act of February 21, 1908), and ceived and filed in open court, and the jury your petitioner was put illegally upon said was thereupon discharged, all without the trial over his protest and objections, all consent of and over the protest and objec- properly made and taken and in proper time. tion of your petitioner. That thereafter, and That said judgment and sentence is absoduring said term of court, to wit, on the 23d lutely null and void for the following readay of October, 1908, said district court, in sons, to wit: First. That said district court open court and in the presence of your peti- had no jurisdiction to try your petitioner on tioner, rendered judgment and sentence on said information. Second. That the jury besaid verdict against your petitioner, and ad- fore whom your petitioner was tried was judged your petitioner guilty of manslaugh- illegally selected, drawn, summoned, and imter in the first degree, as charged in the paneled, to try said cause, and said verdict second count of said information and as is absolutely null and void. Third. That found by the verdict of said jury; and that said district court had no jurisdiction to your petitioner, for said offense, be punished render said judgment and pass said sentence, by being imprisoned in the state penitentiary and same is cruel, unjust, and absolutely for and during the term of his natural life. void and contrary to and in violation of And said court further ordered that the sher- the laws and constitution of the state of iff of Kingfisher county, Oklahoma, immedi- Oklahoma and the Constitution of the Unitately transport your petitioner to said peni-ed States. Wherefore your petitioner prays tentiary and deliver him to the warden or that a writ of habeas corpus may issue keeper thereof, and by said warden or keeper forthwith requiring the sheriff of Kingfisher receive and confine him in said penitentiary county, Oklahoma, to forthwith have and proaccording to the judgment and sentence of duce the body of your petitioner before this the court. A true, full, and complete copy honorable court, and show cause why he is |