to enter into recognizance in the sum of twenty-five hundred dollars, with sufficient sureties for his appearance at such time and place to answer the complaint in said cause alleged against him; and said defendant did fail and refuse to enter into said recognizance: You are therefore commanded to take and commit the said defendant to the jail of Barber county, there to remain until the day fixed for said trial. Witness my hand at Medicine Lodge township, in said county, this 23d day of April, 1889. O. C. HOWE, Justice of the Peace.' Which said order of commitment was, by the said justice of the peace, duly delivered to the said Harry W. Stevens, under-sheriff as aforesaid, under and by virtue of which the said Harry W. Stevens took and held the lawful custody of the said L. M. Spencer, and that afterwards, to-wit, on the 24th day of April, 1889, and while the said L. M. Spencer was in the custody of one Charles Kidd, a person then and there having the lawful charge of the said L. M. Spencer, under and by virtue of his employment by the said Harry W. Stevens, under-sheriff as aforesaid, as a guard to take charge and hold the custody of the said L. M. Spencer, under and by virtue of the commitment aforesaid, and before conviction of the offense aforesaid, and while he continued in such custody, and before he was delivered by the said Harry W. Stevens to the jailer and keeper of the jail of said county, the said Harry W. Stevens then and there having in his possession the said warrant of commitment against the said L. M. Spencer, James T. Lawrence, defendant herein, then and there being, did then and there unlawfully and feloniously aid and assist him, the said L. M. Spencer, in escaping from the custody of the said Charles Kidd, who then and there held and had the lawful custody and charge of the said L. M. Spencer as aforesaid. And while the said L. M. Spencer was in the lawful charge of the said Kidd, as aforesaid, as such guard, to-wit, on the 24th day of April, 1889, at the town of Kiowa, in the county aforesaid, the said defendant did unlawfully, feloniously, voluntarily, and contemptuously aid and assist the said L. M. Spencer to escape from the said Charles Kidd, and to go whithersoever he would; by means of which unlawful, felonious, voluntary, and contemptuous wrong of the said defendant, and by means of the assaulting of the said Kidd, as aforesaid, he, the said L. M. Spencer, did then and there, on the said 24th day of April, 1889, at the county of Barber, and state of Kansas, unlawfully and feloniously escape from the custody of the said Kidd, and went whithersoever he would; against the peace and dignity of the state of Kansas, and contrary to the form of the statute in such case made and provided."

R. A. Cameron and Sample & Long, for the State. Thomas George, for appellee.

JOHNSTON, J., (after stating the facts as uboce.) James T. Lawrence was prosecuted

under section 177 of the Crimes Act, for aiding a prisoner to escape from legal custody. The sufficiency of the information is the only question presented. It sets out fully and sufficiently that an offense had been committed by one Spencer; that he had been arrested and taken before a magistrate, who adjourned the hearing until a later time; and that the prisoner, failing to give the required recognizance, was duly committed to the jail of Barber county until the day fixed for the examination; that under this warrant the under-sheriff took the prisoner into custody, and placed him in charge of a guard until the prisoner could be taken to and confined in the county jail; that while he was in charge of the guard the defendant, Lawrence, unlawfully and feloniously aided and assisted him to escape; and that, by means of the assistance rendered by defendant, the prisoner in fact did escape. It thus appears that the information sufficiently states the custody of the prisoner, and that it was lawful; but while it alleges that the defendant aided in the escape, it fails to charge that he had knowledge that Spencer was in legal custody, and does not set out the acts done which aided the prisoner to escape. In the absence of these allegations the information was defective, and the motion to quash was properly sustained. An indispensable ingredient of the offense sought to be charged is the knowl edge of the accused that the person assisted was in legal custody; and unless this knowledge is alleged, or the acts charged to have been done by the defendant necessarily imply knowledge, an offense is not adequately pleaded. A person may do many things which would aid a prisoner in an escape without any criminal intent or liability. If he should receive and entertain one for a night, in ignorance that his hospitality was extended to a fugitive criminal, or if he should overtake him on a highway and innocently give him a ride, he might materially aid the prisoner to escape, but certainly he would not be guilty of wrong, nor punishable under the statute. A well meant hospitality, or an innocent charity, should not subject a person to criminal prosecution and punishment; but before an act can be held to be criminal it must be done with a criminal intent. State v. Fry, 40 Kan. 311, 19 Pac. Rep. 742. If the acts done by way of assistance were alleged, as they should be, they might be of such a character that guilty knowledge would necessarily be inferred, and an express allegation of such knowledge might not be essential. For instance, if the defendant had furnished a prisoner contined in the jail instruments which could only have been intended to facilitate an escape, or had broken the prison door, or had forcibly assaulted or obstructed an officer who had a prisoner in charge, an express allegation of knowledge that the prisoner was in legal custody might not be necessary; but where the acts done are in their nature innocent, such knowledge should be stated. An information which does not allege the acts of

provision is in the words and figures following, to-wit: All goods, and the proceeds of all sales of goods received under this contract, whether the proceeds are in notes, cash, or book-accounts, we agree to hold the same as collateral security in trust and for the benelit of, and subject to the order of, Parlin & Orendorff Co. until we have paid in full, in cash, all our obligations due the said Parlin & Orendorff Co.,'-which said goods, wares, and merchandise are more particularly described as follows: [items omitted;] all of the aggregate value of four thousand nine hundred and forty-nine dollars and thirty-seven cents. ($4,949.37.) And the said L. M. Spencer the said property, and the proceeds thereof, as aforesaid, then and there feloniously and fraudulently did take, embezzle, and convert to his own use, without the assent of the said Parlin & Orendorff Company, the principal employer, bailor of the said L. M. Spencer, and the beneficiary of the express trust aforesaid, which said goods, wares, and merchandise had come into the possession, care, and control of the said L. M. Spencer by virtue of his being the agent, employe, bailee, and trustee of an express trust of the said Parlin & Orendorff Company as aforesaid.

"Second Count. And for a second and further count comes the said R. A. Cameron, in the name and on behalf of the state of Kansas, and gives the court to understand and be informed that on or about the 15th day of April, 1889, in the county of Barber and state of Kansas, one L. M. Spencer, whose more full Christian name is to the said county attorney unknown, was then and there the agent, employe, bailee, and trustee of an express trust of a certain corporation duly existing, organized, and incorporated under the laws of the state of Illinois, and named and known as Parlin & Orendorff Company,' and he, the said L. M. Spencer, then and there being a person over the age of sixteen years; and that the said L. M. Spencer was theretofore, to-wit, on the 7th day of February, 1889, by the said Parlin & Orendorff Company, duly appointed as such agent, employe, bailee, and trustee of an express trust for the said Parlin & Orendorff Company, and so continued to be such agent, employe, bailee, and trustee of an express trust, under and by virtue of the said appointment, up to and inclusive of the said 15th day of April, 1889. And the said L. M. Spencer, on or about the 15th day of April, 1889, in the county of Barber as aforesaid, under and by virtue of his appointment as such agent, employe, bailee, and trustee of an express trust, did have, receive, and take into his possession and under his care, of and from the said Parlin & Orendorff Company, a large amount of goods, wares, and merchandise theretofore obtained of the said Parlin & Orendorff Company, under and by virtue of a certain provision in a certain contract in writing, duly signed by the said defendant, L. M. Spencer, which said provision

is in the words and figures following, to-wit: All goods, and the proceeds of all sales of goods received under this contract, whether the proceeds are in notes, cash, or book-accounts, we agree to hold the same as collateral security in trust, and for the benefit of and subject to the order of Parlin & Orendorff Co., until we have paid in full, in cash, all our obligations due the said Parlin & Orendorff Co.,'-which said goods, wares, and merchandise are more particularly described as follows, to-wit: [items omitted;] all of the aggregate value of four thousand nine hundred and forty-nine dollars and thirtyseven cents, ($4,949.37.) And the said L. M. Spencer the said property, and the proceeds thereof, as aforesaid, then and there feloniously and fraudulently did take, make way with, and secrete, with the intent the said property, and the proceeds thereof, unlawfully, feloniously, and fraudulently to embezzle and convert to his own use, without the assent of the said Parlin & Orendorff Company, which said goods, wares, and merchandise had come into the possession, care, and control of the said L. M. Spencer, under and by virtue of his being the agent, employe, bailee, and trustee of an express trust of the said Parlin & Orendorff Company, contrary to the form of the stat utes in such cases made and provided.

"R. A. CAMERON, County Attorney. "State of Kansas, Barber County-ss.: R. A. Cameron, being first duly sworn, deposes and says that he is the county attorney of Barber county, Kansas; that he has read the above and foregoing information; that the facts and statements therein set forth are true, as he is informed and verily believes. "R. A. CAMERON.

"Subscribed and sworn to before me, this 8th day of May, 1889. "FRANK HOLMES,

"Clerk of the District Court." The defendant filed his motion to quash upon the following grounds: "(1) Because the information is not direct and certain as regards the offenses charged; (2) because the offenses therein pretended to be charged are not clearly set forth in plain and concise language, without repetition; (3) because the offenses pretended to be charged are not stated with such a degree of certainty that the court may pronounce judgment upon conviction, according to the right of the case; (4) because of the duplicity; (5) because the same do not state facts sufficient to constitute an offense against the laws of the state of Kansas; (6) because said defendant did not have a preliminary examination upon the charges therein set forth, as does and will appear upon the face of the transcript and papers of the examining magistrate filed herein, and upon which the information in this action is based." The motion was sustained by the court, and the defendant discharged. The state excepted to the rulings and decision of the court, and brings the case here.

HORTON, C. J., (after stating the facts as above.) The defendant in the court below presented a motion to quash and set aside the information. This motion was sustained, and thereupon the state asked leave to amend the information, which request was denied. No brief has been filed upon the part of the defendant, nor any appearance made by him in this court, and therefore it is impossible to determine from the record the grounds upon which the district court acted. We have examined the information, and it seems to us sufficient. Our attention is not called to any alleged defects. If it were defective, the application to amend should have been granted. Section 72 of the Criminal Code provides that "an information may be amended in matter of substance or form at any time before the defendant pleads, without leave. The information may be amended on the trial as to all matters of form, at the discretion of the court, when the same can be done without prejudice to the rights of the defendant. No amendment shall cause any delay of the trial, unless for good cause shown by affidavit." The information was evidently drawn under section 88 of the Crimes Act, (Comp. Laws 1885, p. 335.) The venue is properly laid. The full given name of the defendant is not stated; but the reason for this omission is given, and is sufficient. The offense is alleged to have been committed within the time fixed by the statute of limitations for the commencement of the action, and in the county and state within which the offense was triable. The defendant is alleged to have been the agent, employe, bailee, and trustee of an express trust of a certain corporation therein named. It is stated that under and by virtue of his appointment as such agent, employe, bailee, and trustee of the corporation he had in his possession and under his care a large amount of the property of the corporation. This property is particularly described and set out. Its value is stated to be $4,949.37. It is further alleged that the defendant feloniously took, embezzled, and converted to his own use this property, which had come into his possession by virtue of his being the said agent, employe, bailee, and trustee of an express trust of the corporation.

The second count of the information is like the first, with the exception that it is therein charged that the defendant feloniously took, made way with, and secreted the said property with the intent to embezzle and convert the same to his own use. Under the authority of State v. Lillie, 21 Kan. 728, it was proper to charge the defendant with embezzling certain property received by him as agent, employe, bailee, and trustee of the corporation. If the motion to quash the information be considered in the nature of a plea in abatement upon the ground of no proper preliminary examination having been v.23P.no.3-11

Spaulding, 24 Kan. 1, the syllabus reads: "A preliminary examination was had upon a complaint charging defendant with the embezzlement, as city clerk, of certain moneys of the city of Leaven worth. Afterwards an information was filed containing several counts, each charging the embezzlement of the same moneys at the same time, and as the property of the same party, but differing in this, that one charged him with embezzling as clerk, another as agent, another as servant and so on. Held, that a special plea, that defendant had had no preliminary examination, except upon the charge of embezzling as clerk, and that therefore all the the other counts should be stricken out, was properly overruled." The order and judgment of the district court will be reversed, and the cause remanded; all the justices concurring.

(43 Kan. 157)

SECURITY INVESTMENT Co. et al. v. LOVE. (Supreme Court of Kansas. Feb. 8, 1890.) REPORT AND CASE MADE-TIME OF TAKING.

Where a motion to extend the time granted for making and serving a case for the supreme court is duly filed, but is not submitted to the court until the time already granted has elapsed, the court has no authority to make any further extension.

Error from district court, Cowley county; M. G. TROUP, Judge.

Petition in error by Security Investment Co., James Benedict, E. E. Meeker, F. P. Schiffbauer, and B. F. Childs against John Love.

J.

Hackney & Asp, for plaintiffs in error. C. Stanley and J. Mack Love, for defendant in error.

PER CURIAM. On January 11, 1889, the judgment in this case was rendered in the district court of Cowley county, in favor of the plaintiff below, John Love, who is now the defendant in error, and against the defendants below, who are now the plaintiffs in error, and on January 15, 1889, a motion filed by the defendants below for a new trial was overruled, and 90 days were given to the defendants within which to make and serve a case for review in the supreme court. On February 10, 1889, the defendants filed a motion in the district court for the purpose of procuring an order of the court further extending the time for making and serving a case for the supreme court. On May 3, 1889, this motion was submitted to the court, and the court granted the motion, and a journal entry was made giving to the defendants "sixty days, in addition to the time heretofore given, to make and serve a case made for review for the supreme court." On June 29, 1889, the above journal entry was amended so as to give the defendants 60 days from May 3, 1889, within which to make and serve a case for the supreme court. The case was made and served on July 2, 1889, and on October 22, 1889, the case, with a petition in

erro.. was brought to this court, and the plaintiff below, who is now the defendant in error, now moves to dismiss such case and the petition in error from this court, for the reason that the case was not made and served within proper time. We think the motion must be sustained. We do not think that the mere filing of a motion in a court to extend the time for making a case for the supreme court can have the effect to so extend the time, nor even to extend the power or jurisdiction of the court or judge, so that the court or judge could entertain the motion to extend the time after the time fixed by law or by a previous order of the court or judge, within which the case should have been made and served, had already expired. Under the original order of the court the defendants below had up to April 15, 1889, within which to make and serve a case for the supreme court, and up to that time the court or judge had the power to extend such time further; but when that time passed, then the court or judge had no further power to extend the time. Such power had then passed away forever. Insurance Co. v. Koons, 26 Kan. 215. The mere filing of a motion in the court without submitting it to the court or judge, or even calling the attention of the court or judge to the same, could certainly not have the effect to extend the power of the court to grant a further extension of time, after the time given by the previous order had elapsed. The motion of the defendant in error to dismiss this case from this court will be sustained, and the case dismissed.

(43 Kan. 188)

In re TILLERY et al. (Supreme Court of Kansas. Feb. 8, 1890.) STATUTES-REPEAL-SUMMONING OF GRAND JURY.

In February, 1889, and under chapter 167 of the Laws of 1887, a grand jury was regularly ordered, drawn, and summoned. On March 8, 1889, a new act took effect, (Laws 1889, c. 153,) which provided in substance, among other things, that no grand jury should be ordered, drawn, or summoned except "when a petition, signed by one hundred of the tax-payers of the county, praying for said grand jury, shall be presented to the judge of the district court of said county at least twelve days before the commencement of the term of court at which such grand jury may be desired by said petitioners." The old law was repealed. The only new thing in the new law was the requirement that a petition, as above mentioned, should be presented to the judge before he ordered the grand jury. In less than 12 days after the taking effect of the new law, and, indeed, within 10 days thereafter, and on March 18, 1889, the district court convened; and on the next day the grand jury previ ously drawn and summoned were impaneled and sworn, and served as a grand jury. Held, under section 1 of the act relating to the construction of statutes, that the proceedings in ordering, drawing, and summoning the grand jury which took place before the taking effect of the new act were not destroyed by the taking effect of such act, and that the grand jury impaneled and sworn after the taking effect of the new act was a legal and valid grand jury. HORTON, C. J., dissenting. (Syllabus by the Court.)

Original proceeding in habeas corpus. Petition refused.

Oscar Foust, for petitioners. H. A. Ewing and C. E. Benton, for respondent.

VALENTINE, J. This is a proceeding in habeas corpus, brought originally in this court by John Tillery, Cary Crisler, Richard C. Mattox, Jesse Ford, Calvin Ford, and J. W. Drake, wherein it is set forth that D. D. Britton, the sheriff of Allen county, is unlawfully restraining the petitioners of their liberty. The sheriff makes return that he is holding each of the petitioners under a state warrant issued from the district court of Allen county, upon an indictment charging each of the petitioners with the commission of the crime of murder. Both the warrant and the indictment appear to be regular and valid; but the petitioners claim that the grand jury which found and returned the indictment were not legally impaneled, and were not in fact a grand jury, and therefore that the imprisonment of the petitioners upon such indictment is unlawful. The facts appear to be substantially as follows: On February 4, 1889, and in accordance with the laws of Kansas as they then existed, (Laws 1887, c. 167,) a grand jury was regularly ordered and drawn, and was afterwards summoned to attend the March term of the district court of Allen county, which was to convene on March 18, 1889. Afterwards, and on February 27, 1889. a new act relating to grand juries was passed by the legislature, which act took effect on March 8, 1889. Laws 1889, c. 153. Afterwards, and on March 18. 1889, the district court of Allen county convened in regular session; and on the next day the grand jury previously drawn and summoned for such term were impaneled and sworn, and commenced to serve, as a grand jury. March 30, 1889, such grand jury returned the indictment aforesaid, charging the petitioners with the offense of committing murder in the first degree. On April 1, 1889, the warrants were issued under which the petitioners are now held in custody.

On

The new act purports to be an amendment of section 1 of the old act, and repeals sections 1 and 4 of the old act by the use of the following words: "Sec. 2. Sections one and four of chapter one hundred and sixty-seven of the Session Laws of 1887 be, and the same are, hereby repealed." The grand jury were regularly ordered, drawn, summoned, impaneled, and sworn as provided by the old act; and they were also regularly ordered, drawn, summoned, impaneled, and sworn as provided by the new act, except that there was no petition filed or presented to the district judge praying for a grand jury, as the new act requires. Under the new act, a grand jury is never ordered, drawn, or summoned except "when a petition signed by 100 of the taxpayers of the county, praying for said grand jury, shall be presented to the judge of the district court of said county at least twelve days before the commencement of the term of court at which such grand jury may be desired by said petitioners." Such a peti