Link threw some stones, which did not strike the defendant, when defendant turned around in his wagon, picked up the gun, and fired a shot over Link's head; that Link then picked up some more stones, and came towards defendaut, and, while he was in the act of throwing, the second shot was fired. He states that he fired the first shot over Link's head, to make him go back, and the second was fired to save his own life. The deceased, however, was unarmed, and the claim of the state is that no stones were thrown by him on this occasion, and no hostile demonstration was made towards the defendant. It would seem from the testimony that under any theory the defendant had little cause to apprehend such personal danger as would justify the shooting and the homicide. He was in a wagon, while Link was on foot. Defendant's team was on a gallop, bearing him rapidly from danger, if any there was; and when the team was going at great speed, and about 80 feet away from Link, the defendant laid down the lines, turned about in his wagon, and fired. It is difficult to see any necessity or justification for that shot, and the jury had sufficient testimony for the conclusion which it reached.

Complaint is made of the charge given to the jury, and, first, with reference to the fifteenth instruction, which charged that a person is presumed to intend to do that which he voluntarily does do, and intends all the natural, usual, and probable results of his own voluntary acts; and, if they found that the defendant shot and killed Link, as charged in the information, and that the natural and ordinary consequences of such shooting would be the death of Link, that then the presumption would be that the defendant shot with the intent to kill him. The jury were informed, in the same connection, however, that this was not a conclusive presumption, but might be overthrown and rebutted by the evidence. This is a proper instruction, and its language does not warrant the inference that the burden of proof in the case was shifted from the state. In the eighteenth instruction the court declared that "the involuntary killing of another by a weapon, or by means neither cruel nor unusual, in the heat of passion, in any cases other than justifiable homicide, shall be deemed manslaughter in the fourth degree." Crimes Act, § 26. The defendant requested the giving of an instruction under section 27 of the crimes act, defining manslaughter in the fourth degree, which results from the "act, procurement or culpable negligence of another;" but the request was properly refused by the court, as there was no evidence in the case to sustain such a theory, nor which would warrant a charge under that section of the statute. The court failed to add a clause to the twenty-second instruction which was requested by the defendant. It related to the question of self-defense, but, as that subject was quite fully presented to v.34P.no.13-66

the jury, the refusal affords no ground for a reversal. Complaint is made of the refusal to give the twenty-eighth instruction, with reference to the good character of the defendant; but the court did not overlook the subject, as it gave the following instruction: "Evidence of previous good character is competent evidence in favor of the party accused, as tending to show that he would not be likely to commit the crime charged against him; and may, under some circumstances, be sufficient to create a reasonable doubt of his guilt when it would not otherwise exist. But if the jury believe from the evidence that the defendant did commit the crime in question, as charged in the information, it will be your duty to find the defendant guilty, even though the evidence may satisfy your minds that the defendant previous to the alleged crime had sustained a good reputation and character as a peaceable, quiet, law-abiding citizen." There is no good cause to complain of this instruction. It fairly recognizes the rule that proof of good character is an ingredient to be considered by the jury in determining the guilt or innocence of the defendant. Objection is made to the latter part of the instruction, and especially to the use of the word "crime." The court, however, does not assume, as seems to be claimed, that a crime had been committed, but says no more than that if, from all the evidence, including that relating to good character, they find the defendant did commit the crime or offense charged in the information, it will be their duty to convict, although the defendant may have previously sustained a good reputation and character. In several other instructions the court had advised the jury that they could not convict the defendant unless the proof satisfied them of his guilt beyond a reasonable doubt. State v. Douglass, 44 Kan. 627, 26 Pac. 476; State v. Spendlove, 47 Kan. 168, 28 Pac. 994; People v. Mead, 50 Mich. 229, 15 N. W. 95; People v. Sweeney, (N. Y. App.) 30 N. E. 1005. The court refused the giving of the twenty-seventh instruction requested by the defendant, which related to the individual duty and responsibility of each juror; but, as the court had sufficiently instructed the jurors in this respect in its seventh instruction, a repetition was unnecessary. The instructions given from the twenty-sixth to the thirty-fifth, inclusive, were given at the request of the state, and, although they are criticised, we think they are applicable under the facts of the case, and substantially correct. In the twenty-eighth instruction it is said that "if at the time the defendant fired the fatal shot, the deceased was not engaged in making any assault upon him, or in any way threatening or menacing the defendant, and was not armed with any deadly weapon, and did not have anything in his hand, but was standing still, facing the defendant, and the defendant was in his wagon, at a distance of eighty feet or more from the de

ceased, his horses moving in the opposite direction in a gallop, and the defendant was not in imminent danger of receiving any injury from the deceased, and was under no reasonable apprehension of receiving any injury from deceased; that then the defendant was not justified in shooting deceased, even though the deceased had immediately before that time assaulted him and hit him with a stone." This instruction presented the theory of the state, and correctly states the law. The only criticism that can be made upon the instruction is where the court fixes the number of feet which the defendant was from the deceased at the time of the shooting. The defendant himself stated that he thought he was about 50 or 60 feet away, but it might have been over 80 feet; and a reading of the whole testimony leads us to believe that he was about 80 feet from the deceased when the last shot was fired. The court, however, does not assume that the facts stated were true, but, as there was testimony offered by the state tending to prove these facts, an instruction applicable to such facts, if found to be true, was given. Some of the instructions complained of state the law strongly in favor of the theory of the state, but we see no incorrect proposition of law, nor anything which would justify a disturbance of the verdict.

Some complaint is made that the court did not embody the facts and theory of selfdefense relied on by the defendant in an instruction, but no such instruction was prepared or requested by the defendant. In the charge of the court, however, the general theory of self-defense relied on by the defendant was fully presented to the jury. If the defendant desired additional instructions, he should have requested them; and, as none were requested, the court did not commit any reversible error in its failure to give them. State v. Pfefferle, 36 Kan. 96, 12 Pac. 406; State v. Peterson, 38 Kan. 204, 16 Pac. 263; State v. Estep, 44 Kan. 572, 24 Pac. 986.

An attempt has been made to raise the question as to the misconduct of the jury. Attached to the record are affidavits to the effect that some of them drank intoxicating liquors after they were impaneled and before the verdict was returned. It is only proper to state in this connection, however, that it does not appear that any liquor was drank during the course of the trial, or while they were considering of their verdict, and no juror was intoxicated or under the influence of liquor while performing his duties. These affidavits, however, form no part of the transcript, and cannot be considered by this court. They were not incorporated in the bill of exception, and this was necessary in order to make them a part of the record. State v. Devine, 49 Kan. 252, 30 Pac. 522, and cases cited. But, if the testimony upon this question had been properly included in the transcript, it would not have afforded grounds for a new trial. It has already been de

termined in this court that the mere drinking of intoxicating liquor by the jurors during the progress of the trial, not furnished by the prevailing party, and which has no appreciable influence upon their conduct, is not of itself sufficient to set aside a verdict. Perry v. Bailey, 12 Kan. 539; Larimer v. Kelley, 13 Kan. 78; State v. Tatlow, 34 Kan. 80, 8 Pac. 267.

We have examined all of the points presented in appellant's brief, some of which it is not deemed necessary to specially notice, and find in them no sufficient ground for a reversal, and hence the judgment of the district court will be affirmed. All the justices concurring.

(52 Kan. 387)

ALLEN v. BARTLETT. (Supreme Court of Kansas. Dec. 9, 1893.) ADMINISTRATION-FAILURE TO FILE REPORT-LIMITATION OF ACTIONS.

1. The facts that an administrator of a deceased person filed an inventory of the personal property belonging to the estate on October 3, 1882, and failed to at any time thereafter make annual or final settlement of the estate prior to his death, which occurred in January, 1889, do not alone show a wrongful conversion of such estate, or any part thereof, by the administrator to his own use.

2. The facts above stated do not show a claim for the amount of property coming into the hands of such deceased administrator, filed by an administrator de bonis non against the estate of such first administrator, to be barred by the statute of limitations. (Syllabus by the Court.)

Error from district court, Wilson county; L. Stillwell, Judge.

Action by C. L. Bartlett, administrator of the estate of John Brown, deceased, against J. D. Allen, administrator of the estate of Henry Brown, deceased. Plaintiff had judg ment, and defendant brings error. Affirmed.

C. S. Reed and J. B. F. Cates, for plaintiff in error. S. S. Kirkpatrick, for defendant

in error.

ALLEN, J. This case was tried on the following agreed statement of facts: (1) John Brown died August 1, 1882. (2) Henry Brown was appointed administrator of the estate of John Brown September 22, 1882, and gave bond as such administrator on the same day. (3) Henry Brown, as such administrator, filed an inventory of the personal property belonging to said estate of said John Brown, coming into his hands October 3, 1882, which showed $1,885.50 of the said estate, and coming into his hands as administrator. (4) Henry Brown, as such administrator, never afterward filed any statement or annual account of his acts and doings in and about the administration of said estate, and never made any annual or final settlement, of any kind or character, of said estate. (5) Said Henry Brown died January, 1889, and Sarah A. Brown and J. D. Allen were appointed administrators

of the estate of Henry Brown, deceased, January 25, 1889. (6) On May 2, 1889, C. L. Bartlett was appointed administrator of the estate of John Brown, deceased. (7) On August 8, 1889, said C. L. Bartlett, as such administrator, filed the account here in controversy, claiming $2,472.56 in favor of the estate of John Brown, deceased. (8) The administrators of the estate of Henry Brown, deceased, interposed as plea thereto the statute of limitation, claiming that said demand was barred thereby. The court found in favor of the plaintiff, and rendered a judgment accordingly. The defendant brings the case here for review.

Counsel for plaintiff in error discusses in his brief the question whether the administrator de bonis non can recover from the administrator of his deceased predecessor anything more than that portion of the estate which still remained unadministered in the hands of the former administrator at the time of his death, and contends that any portion of the assets of the estate which he had sold and converted to his own use could not be recovered by the administrator de bonis non. The principal portion of counsel's brief is devoted to a citation and discussion of authorities on this question. On the other hand, counsel for the defendant in error suggests that the record fails to present any such question; that the sole point relied on in the trial court was the statute of limitations. On inspection of the record, we find this contention sustained. The administrator de bonis non filed in the probate court an account against the estate of the former administrator, claiming the balance of the inventory, as shown by the report of the former administrator, and interest thereon. This account was duly verified. There is absolutely nothing in the record showing what the property was, nor when it was disposed of, if ever, nor what was done with the proceeds. For anything disclosed by the record, it might be that the administrator of his estate had the specific funds derived from the sale of the property. It is therefore not necessary to consider the question most discussed.

The only other question to be considered is as to whether the action was barred by the statute of limitations. It is contended that when Henry Brown, administrator of the estate of John Brown, deceased, failed to make a settlement within the time prescribed by law, or within a reasonable time thereafter, without rendering any excuse therefor, the law presumes the conversion of the funds, and the statute of limitations begins to run from the time of such failure. It is quite a startling proposition that mere neglect to perform the official duty of rendering accounts at the time required by law to the probate court will be deemed a conversion of the trust funds in the hands of an executor or administrator, so as to start the running of the statute of limitations.

We think it very clear that the statute of limitations would not begin to run in favor of the administrator until he had done some unequivocal act, showing the intention on his part to repudiate his trust and claim the funds as his own. It is well settled that no statute of limitations runs against the beneficiaries to a trust fund, so long as the trustee continues to recognize their rights. A failure to perform an official duty at the precise time required by law is not necessarily any evidence, much less conclusive evidence, of a purpose to wrongfully convert and misapply trust funds. Perry v. Smith, 31 Kan. 423, 2 Pac. 784; Perry, Trusts, § 864. We do not think the case of Carr v. Catlin, 13 Kan. 394, at all in conflict with our views above expressed. The judgment is affirmed. All the justices concurring.

(52 Kan, 369)

STEVENS v. CLEMMONS. (Supreme Court of Kansas. Dec. 9, 1893.)

APPEAL-REVIEW - OPENING CASE FOR FURTHER EVIDENCE.

1. The verdict of a jury, when supported by competent testimony, disposes of all disputed questions of fact.

2. After both parties have introduced their testimony, and the court has instructed the jury, the introduction of further testimony is a matter within the discretion of the court; and the court, in this case, did not err in refusing to admit testimony not properly rebuttal after the case had been reopened.

(Syllabus by the Court.)

Error from district court, Dickinson county; M. B. Nicholson, Judge.

Action on three promissory notes by Culbertson C. Stevens against John J. Clemmons. Defendant had judgment, and plaintiff brings error. Affirmed.

0. John H. Mahan, for plaintiff in error. L. Moore and C. F. Mead, for defendant in

error.

ALLEN, J. Plaintiff in error, as plaintiff below, brought suit against the defendant on three promissory notes, for $99, $111.30, and $315.50, less credit of $113.50. The defendant pleaded payment in full, and also alleged as a counterclaim that he had paid plaintiff the amount of a promissory note given to A. V. Jewett, for whom plaintiff acted as agent, for the sum of $500, twice; and defendant asked judgment for $500, which he alleged was paid by mistake. Plaintiff's reply denied the allegations of the answer. The case was tried to a jury, and a verdict rendered for the defendant.

Plaintiff in error contends that, inasmuch as the defendant's counterclaim was greater than the sum of all the notes sued on, the jury, having found merely a general verdict for the defendant, must have rejected the counterclaim. If they had allowed it, the defendant would have been entitled to a verdict for the excess. In this conten

He

tion, we think the plaintiff is correct. then further contends that the evidence with reference to the payment of the $313.50 note is insufficient to support a finding of payment; that the only evidence offered by the defendant was that the money was left at Kirby's Bank by the defendant for the plaintiff; and that there was no proof either that the bank was authorized to receive payment for the plaintiff, or that the bank, having received the money, paid it over to him. The defendant testified that he paid the identical note sued on, and produced a letter which it is claimed referred to this note, in which the plaintiff says, "You left $315.50 at Kirby's Bank." It is true that the plaintiff claims that the letter refers to the payment of a different note, but the jury had a right to determine which party was right, and which wrong, and they have settled the contention in favor of the defendant.

Counsel next complains of the rejection of the evidence of Mr. Kirby. After both parties had introduced their testimony, and rested, and after the court had instructed the jury, the plaintiff asked leave to reopen the case and introduce further testimony, and, over the objection of defendant, leave was granted. Thereupon, the plaintiff was recalled, and re-examined at considerable length, and introduced further written evidence. Then plaintiff called Kirby as a witness, and offered to prove that Clemmons never deposited $215 in December of 1885. The defendant objected to the introduction of this testimony as not proper rebuttal, and the court sustained the objection, and in doing so ruled correctly. The burden of the issue was on the defendant. He had first introduced his testimony. It was then incumbent on the plaintiff to introduce his testimony in opposition to that produced by the plaintiff. The evidence offered by defendant, which it was sought to controvert by the testimony of Kirby, was introduced by the defendant as part of his testimony in chief.

Counsel also complains of the instructions of the court, and especially of what was given after the case had been reopened, and further evidenced offered. The court merely said with reference to the testimony let in after reopening the case, "It is simply let in as additional circumstance, like any other circumstance in the case, and is not to be given more prominence simply because it was let in at this time." We think the instruction entirely proper. Thereafter, plaintiff asked to submit special findings of fact. The court said, "The rules require that special findings be submitted before the evidence in the case is concluded." No special findings appear by the record to have been offered. No exception is preserved to this remark of the court, and, of course, no error is shown.

We have patiently examined the whole record, and find that disputed questions of fact were properly submitted to a jury. The jury decided adversely to the plaintiff. There is really no question of law presented, which is worthy of serious consideration, and the judgment is therefore affirmed. All the justices concurring.

(52 Kan. 432)

DE FORD, Sheriff, v. ORVIS. (Supreme Court of Kansas. Dec. 9, 1893.) APPEAL-REVIEW-RECORD-NEW TRIAL.

1. Error is not to be presumed, but, in all cases where it is alleged, it must be affirmatively shown. 2. Where it is not shown by record that the motion for a new trial was filed within three days after the judgment was rendered, the supreme court cannot say that the district court erred in overruling the motion.

(Syllabus by the Court.)

Error from district court, Greenwood county; C. A. Leland, Judge.

Action by W. H. Orvis against C. H. De Ford, Sheriff. Plaintiff had judgment, and defendant brings error. Affirmed.

Clogston & Fuller, for plaintiff in error. S. S. Kirkpatrick, for defendant in error.

HORTON, C. J. Counsel for defendant below objects to the consideration of this case upon the ground that the record is a peculiar one, and defective in many particulars. It s doubtful if the certificate of the district clerk to the transcript conforms strictly to the requirements of the law. It does not appear, however, that the motion for a new trial was made or filed in time. The trial occurred on the 31st day of January, 1890. The motion for the new trial was overruled on the 14th day of February, 1890. It does not appear from the record when the motion was filed. Hover v. Tenney, 27 Kan. 133; Dyal v. City of Topeka, 35 Kan. 62, 10 Pac. 161. The matter principally discussed in the briefs is the ruling of the trial court in presenting to the jury certain questions of fact to be answered, after the attorney of defendant had closed his argument, and in permitting the attorney for the plaintiff to discuss these questions of fact to the jury, and suggesting answers. Of course, the better practice is that all questions of fact should be prepared, and notice thereof given, before the argument. These matters, however. are somewhat in the discretion of the trial judge, in the absence of any provision of our statute thereon. But in this case the attorney for defendant below should have requested permission of the court, after the argument to the jury on the questions, for further argument on his part. This was not done. The judgment of the district court will be affirmed. All the justices concurring.

1. Parties furnishing materials for the erection of a building, in order to maintain a lien therefor, must file the statement required by the statute within four months after the completion of the building.

2. Where work on the building is abandoned by the owners, the statement must be filed within four months after the abandonment. The time when such abandonment occurs is to be determined from the actual cessation of the work, and not from the secret purposes or mental conclusions of the owners.

3. The practice of entertaining demurrers to the evidence in cases tried by the court without a jury is authorized by the spirit, if not by the letter, of the Code, and it is not error for the court to entertain such a demurrer.

(Syllabus by the Court.)

Error from district court, Mitchell county; Cyrus Heren, Judge.

Action by the Chicago Lumber Company against the Merrimack River Savings Bank to foreclose a mechanic's lien. From an adverse judgment, plaintiff brings error. Affirmed.

W. W. & W. F. Guthrie, for plaintiff in error. Douthitt, Jones & Mason, for defendant in error.

ALLEN, J. This action was brought by the Chicago Lumber Company to foreclose a mechanic's lien filed August 7, 1887, on a quarter section of land, and an unfinished mill situated thereon. The plaintiff's claim is for materials furnished by them to Douglass & Bixby, the owners of the property. The first item was furnished, as appears from the bill attached to the statement for a lien, on November 7, 1882, and the last item on December 13, 1883. The defendant bank elaims under a mortgage dated June 29, 1883, for $8,000. There was a prior mortgage on the land in controversy for $1,000, given to one Levi Catlin. Suit was brought on this mortgage by Catlin in the Mitchell county district court on December 17, 1885; against Douglass & Bixby, the Chicago Lumber Company, the Merrimack River Savings Bank, and others. On the 2d day of April, 1886, leave was granted the Chicago Lumber Company to answer in that action, and on the same day their answer was filed. Thereafter the case was removed into the circuit court of the United States. The Merrimack River Savings Bank answered, setting up their mortgage, and, replying to the answer of plaintiff in error, among other things alleged (4) that the lumber company's lien set up in that action (which was sworn to on the 8th of July, 1884, though the date of filing does not appear in the record) was prematurely filed, and (5) that their suit was not begun within one year after filing their lien. To these parts of the reply the lumber company demurred. Their demurrer

was overruled by the court, and thereafter the lumber company admitted that their statement for a lien was prematurely filed, and disclaimed any lien by virtue thereof. This disclaimer was filed on the 23d of May, 1887. Thereafter they filed a new statement, on which this suit is founded. It appears that the last work was done on the mill building late in the fall of 1884, and that it was then left in an unfinished condition, and has so remained ever since.

Various matters are discussed in the briefs by both parties, which, under the view we take of the case, it is unnecessary to mention. The statute under which the lien is claimed provides that the statement shall be filed within four months after the completion of the building. It appears that this building never was, in fact, completed; but it has been held by this court, and is certainly consistent with the spirit of the law, that, where the work is abandoned, parties entitled to a lien shall not be thereby deprived of their rights nor prevented from enforcing them, but that when the work is abandoned the building shall be deemed completed for the purpose of protecting their rights. In Shaw v. Stewart, 43 Kan. 572, 23 Pac. 616, it was said: "All the authorities sustain the proposition that if the abandonment of the work upon the building had been caused by Stewart, the owner of the property, plaintiffs would be entitled to their liens, as the abandonment of the work would have been deemed a completion of the work for the purpose of filing such liens. Catlin v. Douglass, 33 Fed. 569; Trammell v. Mount, (Mo. Sup.) 4 S. W. 377." See, also, Perry v. Conroy, 22 Kan. 716; Crawford v. Blackman, 30 Kan. 527, 1 Pac. 136. The plaintiff in error strenuously contends that the abandonment does not take place until the owners have arrived at the mental conclusion that they cannot proceed with the work. If this construction of the law were to be adopted, parties entitled to a lien would find themselves in a very precarious predicament. It might be a matter of very great difficulty to keep track of the mental operations of the owners, who in most instances would be interested in defeating, rather than in maintaining, liens upon their property. If one may cease to work on a building when partially completed, and leave some portion unfinished with the purpose and intention of proceeding with the work at some future and indefinite period, the time when laborers, contractors, and material men may enforce their demands will be indefinitely postponed, and they will be put in the most hazardous position of being defeated ultimately of their liens if they fail to file them within the time prescribed by the statute, or of being defeated in a suit if the work be thereafter resumed. We think the contention of the plaintiff in error that abandonment of work on this mill is a mental act of the owners is unsound; that it is a physical,