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The' opinion of the court was delivered by Johnston, C. J.: The principal question involved in this litigation was whether the action brought by the appellant, S. E. Keener, against the representative of John Lloyd, deceased, was barred by the statute of limitations. It was alleged by appellant that on January 26, 1903, John Lloyd executed a promissory note to appellant for $1700 and that subsequently he made four payments upon the note, as follow: on May 1, 1905, $475; on June 7, 1905, $300; on November 19, 1907, $90; and on November 18, 1909, $75. The bar had fallen unless a partial payment had been made by Lloyd within the statutory period. There is little controversy as to the two payments made in 1905, but the indorsements upon the note as of 1907 and 1909 are contested by appellee. If either of these was in fact made, the debt is not barred.' On the back of the note indorsements as of 1907 and 1909 were written. Appellant testified circumstantially as to these payments and stated that the indorsements were entered on the note when the payments were made. Another- witness testified as to circumstances tending to show that a payment was made on the note by Lloyd sometime after the first of June, 1909. He was not able to state positively the date on which the payment was made, but he testified that he returned from a Colorado trip on June 1, 1909, and that the payment was made in his presence after that time. The verdict of the jury was against appellant, which was, in effect, a finding that the action was barred. The appellant asked the court to instruct the jury that if the payments mentioned were made at or near the dates of indorsement, that they would operate to interrupt the running of the staute of limitations. The court, however, instructed the jury: “If you shall fail to be satisfied by a preponderance of the evidence that either on the 19th day of November, 1907, $90.00 was paid by John Lloyd upon this note, or that' on the 18th of November, 1909, $75.00 was paid by John Lloyd upon this note, then your verdict would be for the defendant.” In charging that unless the evidence showed that a payment was made on one of the designated days the action was barred the court committed prejudicial error. While the date of an indorsement upon an instrument is prima facie evidence of the time at which the payment was made, and while appellant testified that the payments were made upon the dates shown by the indorsements, he was not concluded by the entries of indorsement, nor yet by his testimony as to the particular days of payment, and the debt would not be barred if the payments were really made and received at any time within the statutory period. (Fear v. Bank, 86 Kan. 140, 119 Pac. 589.) As was said in Hastie v. Burrage, 69 Kan. 560, 76 Pac. 268: “It is the payment of a portion of a debt, and not the actual indorsement of such payment upon the instrument evidencing such debt, which tolls the statute of •limitations.” (Syl. ¶ 3.) Testimony was offered with a view of proving that the parties were not together on November 18, 1909, the date of the last indorsement upon the note, and the jury may have believed that appellant was mistaken as to a payment on that day and yet have been satisfied that a. payment was made on another day of that year. One witness, as we have, seen, testified as to a $75 payment made in the latter part of that year, but was not certain as to the date of payment. The payment •might be fixed in the memory of the witness by some circumstance and yet the day of the year when it was made take no hold.on his mind. If, as he testified, a payment was made in the latter part of the year of 1909, whether before or after November 18, 1909,' it would operate to toll the statute. It can hardly be said that the appellant’s position compels a holding that the payments were made on the dates of the indorsements or not at all, as he requested an instruction that a payment at or near the date of the indorsement would take the note out of the statute of limitations. We think it can not be said that the omission or error was without prejudice, and therefore the judgment of the district court will be reversed and the cause remanded for a new trial.	[ 112, 124, -104, -34, 90, 96, 42, -102, 97, -121, -75, 83, -23, -61, 29, 105, 115, 109, 80, 106, -17, -77, 7, 88, -45, -13, -47, -35, -79, 77, -26, 119, 12, 48, -54, -79, 102, -62, -63, -106, -50, -123, 9, 101, 113, 8, 48, 121, 32, 74, 97, -114, -29, 42, 28, 79, 109, 45, -37, 61, -48, -80, -102, 5, 127, 16, -111, 39, -100, 71, -40, 62, -112, 53, 2, -24, 114, -90, -58, -12, 107, -69, 32, 102, 34, 48, 69, -17, -36, -120, 46, 126, -81, -89, -106, 88, 11, 109, -66, -99, -66, 16, -89, -10, -18, 21, 89, 36, 15, -101, -42, -30, -97, 124, -100, 10, -10, 33, 48, 97, -50, -30, 92, 103, 123, -101, -113, -110 ]
The' opinion of the court was delivered by Mason, J.: Harry J. Taylor and William F. Richards were convicted upon a charge of concealing mortgaged personal property, and appeal. The statute under which the defendants were prosecuted reads: “Any mortgagor of personal property or any other person who shall injure, destroy or conceal any mortgaged property, or any part thereof, with intent to defraud the mortgagee, his executors, administrators, personal representatives, or assigns, or shall sell or dispose of the same without the written consent of the mortgagee or his executors, administrators, personal representatives or assigns, shall be deemed guilty of larceny.” (Laws 1911, ch. 226, § 1.) The information contained but one count. It charged that the defendants did “unlawfully, feloniously and willfully, and with intent to cheat and defraud the Bank of Tescott, the mortgagee^ conceal, sell and dispose of without the written consent of said mortgagee, its representatives and assigns, the following personal property” — describing certain cattle. The defendants urge that a motion to quash should have been sustained on the ground of duplicity, because the information charged two distinct offenses — (1) concealing the cattle with the intent to defraud the mortgagee, and (2) selling and disposing of the cattle without the written consent of the mortgagee. It has been held that the sale of mortgaged chattels without .written consent is not a violation of the' statute unless fraud is intended. (The State v. Miller, 74 Kan. 667, 87 Pac. 723.) A sufficient answer to this objection is found in the rule which has been thus stated: “It is a well-settled rule of criminal pleading that when an offense against a criminal statute may be committed in one or more of several ways, the indictment may, in a single count, charge its commission in any or all of the ways specified in the statute. So where a penal statute mentions several acts disjunctively and prescribes that each shall constitute the same offense and be subject to the same punishment, an indictment may charge any or all of such acts conjunctively as .constituting a single offense. Or, as the same rule is frequently stated, where a statute makes either of two or more distinct acts connected with the same general offense and subject to the same measure and kind of punishment,, indictable separately and as distinct crimes when each shall have been committed by different persons and at different times, they may, when committed by the same person and at the same time, be coupled in one count as together constituting but one offense.” (22 Cyc. 380.) In the latter form the rule has been frequently announced by this court, the cases being cited in a note to the, text quoted. The rule was applied in a case aris ing under a statute similar to that here involved, in People v. Wolfrom, 15 Cal. App. 732, 115 Pac. 1088. The allegations that the cattle were concealed and were sold are not repugnant. The information is also objected to as not being sufficiently definite. It is urged that it should have alleged to whom the cattle were sold or disposed of, and how they were concealed. The defendants were convicted only of concealing the cattle, and any defects in charging the sale and other disposition are unimportant. The language of the statute was substantially followed, and we think no prejudice resulted from the want of a more detailed statement with regard to the concealment. The defendants maintain also that the information should have been quashed on the ground that the statute is void because unintelligible. The penalty is thus defined, the phrase giving rise to the objection being italicised: “For selling, injuring, destroying, concealing or disposing of such property of the value of twenty dollars and under, on which the mortgagee has a lien, or of the value of over twenty dollars, on which the mortgagee has a lien of not more than twenty dollars, such person shall be deemed guilty of petit larceny, and on conviction shall be punished by imprisonment in the county jail not exceeding one year, or by fine not exceeding one hundred dollars, or by both such fine and imprisonment; for selling, injuring, destroying, concealing or disposing of such property of the value of twenty dollars and over, on which the mortgagee has a lien to the amount of twenty dollars,' such person shall be deemed guilty of grand larceny, and on conviction, shall be punished by confinement and hard labor not exceeding five years. (Laws 1911, ch. 226, § 1.) The statute, after declaring it to be petit larceny fraudulently to dispose of mortgaged property which is worth twenty dollars or less, or on which the lien amounts to twenty dollars or less, declares it to be grand larceny so to ^dispose of mortgaged property worth twenty dollars and over, “on which the mortgagee has a lien to the amount of twenty dollars." On its face the statute thus purports to make the same act both a felony and a misdemeanor, and makes no specific provision for the situation where the property fraudulently concealed or disposed of is worth over twenty dollars and is subjected to a lien of more than that amount. The explanation, however, is very simple. The basis of the statute quoted is section 1 of chapter 105 of the Laws of 1901. In that act as passed and officially published there appeared in lieu of the italicized phrase the words “the amount of over twenty dollars.” In republishing the act in the General Statutes of 1901 the word “over” was by a typographical error omitted. (Gen. Stat. 1901, § 4259.) The General Statutes of 1909 followed the General Statutes of 1901, and perpetuated the mistake by leaving out the word “over.” In 1911 the legislature, in seeking to' amend the statute in a wholly different matter, used the compilation of 1909 as the basis. The section as there printed was reenacted with the desired change, but because the new act was drafted from the reprint instead of from the official publication, the word “over” was omitted from it. Under these circumstances there is no difficulty whatever in construing the statute as though it contained the missing word. Its obvious purpose is to make the offense defined either grand or petit larceny, according to whether or not the mortgagee is subjected to a possible loss of over twenty dollars, which could occur only when the property fraudulently concealed or disposed of was worth over twenty dollars and was subject to a lien of more than that amount. The inadvertent omission could have been easily supplied even if it had occurred in the original statute. (Cole v. Dorr, 80 Kan. 251, 101 Pac. 1016; The State v. Radford, 82 Kan. 853, 109 Pac. 284; 36 Cyc. 1113.) At the conclusion of the state’s evidence the defendants moved that the plaintiff be required to elect as to which offense it would rely upon — that of concealing mortgaged property, or that of selling and disposing of mortgaged property without the written consent of the owner. The motion was overruled. If there was any error in this it was cured by the instruction to the effect that a conviction could only be had upon the charge of concealment, and by the fact that the defendants were convicted only on that charge. (The State v. Bussey, 58 Kan. 679, 50 Pac. 891; The State v. Schaben, 69 Kan. 421, 76 Pac. 823.) The refusal of the court to give several instructions requested is complained of. We think the general charge sufficiéntly covered, the matters to which they referred. It is vigorously urged that the conviction was not warranted by the evidence. The court instructed the jury, in substance, that the word “conceal” as used in the information included the intentional handling or shifting of the property in such a manner as to mislead or confuse the mortgagee in its efforts to find it. This instruction is not specifically attacked and is sustained by the authorities. (Clement v. Dudley, 42 N. H. 367; The State v. Julien, 48 Iowa, 445; State v. Ward, 49 Conn. 429; Polk v. The State, 60 Tex. Crim. Rep. 150, 131 S. W. 580.) The facts as to which there is no substantial dispute include the following: Taylor owned about twenty-five head of cattle which were mortgaged to the Bank of Tescott for $1000. With the consent of the bank Taylor, on October 8, 1911, removed them from the place where they had been kept, in Ottawa county, to a pasture in Saline county which was controlled by Richards. The next day they were taken by Richards to a pasture of his own. Taylor then obtained permission from W. F. O’Brien to place them iñ a pasture belonging to him. He reported to O’Brien at noon on the 10th that he had done so. About two weeks later O’Brien told Taylor he had heard the cattle were not in the pasture. Taylor asked O’Brien to look for the cattle. He did so, making an extensive search,'but found no trace of them. All other efforts to find them were unsuccessful. On October 11 Richards drove about thirty-five head of cattle, some of which were of the same general character as some of those Taylor had mortgaged to the bank, to Beverly, and shipped them to Kansas City, where they were sold the next day. Richards accompanied the shipment, and Taylor joined him at Culver, some twelve miles on the road. The contention of the state is that at least a part of the mortgaged cattle were included in the bunch shipped by Richards. The1 defendants maintain that there is no evidence whatever to this effect. No particular animals covered by the mortgage were so described as to be thereby identified with any of those shipped by Richards. The case of the prosecution depends upon circumstantial evidence’justifying the inference that the mortgaged cattle, or a part of them, instead of having been turned into the O’Brien pasture, were driven to the railroad by Richards. As supporting this theory the state relies upon evidence tending to show these facts: Shortly before the cattle were removed from Ottawa county Richards told F. M. Weed that he was going to drive off Taylor’s cattle and ship them, and that he would get a good slice of money for doing the job. Weed told this to Samuel Christian, who helped Richards drive to the railroad the cattle that he shipped. Christian told Richards what Weed had said, and Richards responded by saying there was no danger of Christian getting into any trouble — that Taylor had everything fixed up so there would be no danger of any one getting into trouble. On the road they passed the house of a neighbor, who came out and spoke with them. Richards afterward told Christian that he would rather have kept from going past there, as this neighbor was always nosing into other people’s business; that he would rather have kept off the public highway. At the station Richards gave as a reason for loading the cattle at once, that no one would be so apt to notice them. A little less than a month later Richards told Christian that he intended giving him $12.50, and Taylor intended giving him a like amount, and that would be $25 for keeping still; that he (Richards) had a hundred and fifty dollars of the money, and Taylor had the rest. When Taylor left the place where he was working, on the trip during which he met Richards at Culver and accompanied him to Kansas City, he stated that he was going to Abilene. He testified that such was actually his -intention at the time — that he had not then thought of going to Kansas City; that he had concluded he would drive to Culver, because he had some business there, but he could not remember what it was; that he had not thought anything about Richards before reaching Culver, although he had an idea he would be on the train; that he made up his mind to go to Kansas City after reaching Culver. Taylor met several acquaintances in Kansas City, whom he told he was there to see about a hay baler. After his return he asked one of them not to tell any one at Culver or Tescott that he had been to Kansas City, because he did n’t want his wife to know where he had been. We think this evidence was sufficient to take the case to the jury and to sustain the conviction. . The jury found Taylor guilty of concealing mortgaged property worth five hundred dollars, and Richards guilty of concealing property worth two hundred and fifty dollars. The contention is made that the verdicts are inconsistent. But, as suggested in the plaintiff’s brief, the jury may have been convinced that Taylor concealed the entire herd of cattle, while entertaining some doubt whether more than half of them were included in the Richards shipment. Upon a motion for a new trial an effort was made in behalf of the defendants to require the jurors to testify as,to the considerations by which the jury were influenced in arriving, at their verdict. Objections to the questions were rightly sustained on the ground that they related to matters essentially inhering in the verdict itself. (L. & W. Rly. Co. v. Anderson, 41 Kan. 528, 21 Pac. 588; The State v. Keehn, 85 Kan. 765, 779, 118 Pac. 851.) The judgment is affirmed.	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Per Curiam: This case involves the validity and effect of an order made by the board of railroad commissioners in April, 1896, in regard to rates for transporting live stock, and it was confirmed by another order in August, 1897. An injunction against the violation of the order for the change of the rate was granted, and a review of that ruling is sought. The law under which the order was made has been repealed, and the board of railroad commissioners which made it no longer exists. (Laws 1898, ch. 29.) 'The act repealing the law and abolishing the board effectually abrogates the rules and orders of the board, including the one which was in controversy. There is, ■therefore, nothing of a substantial nature left for decision, and the court would not be warranted in giv ing its attention to mere moot questions. (The State, ex rel., v. Board of Health, 58 Kan. 817, ante, p. 18, 51 Pac. 1101.) As was remarked in Hurd v. Beck, 57 Kan. 911, 88 Kan. 11; 45 Pac. 92: “The time of this court ought not to be occupied by the consideration of abstract questions of law, however-important and interesting they may be.” (p. 12.) .. The abrogation of the order leaves nothing for trial-in the district court and in effect it abates the injunc-'tion that was allowed. The proceeding will be dismissed.	[ -74, 98, -4, -100, 106, -30, 50, -102, 69, -15, 37, 83, -83, -112, -107, 61, -105, 45, -15, 43, -12, -105, 22, -61, 114, -45, -13, -49, 51, 79, 102, 111, 76, 112, 42, -11, 102, -55, -63, 30, -114, 37, 57, -23, 81, -64, 56, 111, 86, 71, 17, 91, -29, 42, 24, -29, 41, 62, -5, -87, -47, -16, -70, 70, 111, 6, 17, 32, 28, -123, -56, 46, 24, 17, 11, -4, 115, -90, -122, 92, 41, -39, 8, 98, 98, 65, 36, -17, -104, -88, 38, -102, -115, -26, -110, 16, -94, -93, -105, -35, 69, 22, 14, 126, -18, 5, 31, 108, 4, -118, -76, -89, -65, 37, -104, 87, -21, -13, 50, 84, -120, -14, 95, 70, 18, 27, -114, -76 ]
The opinion of the court was delivered by Johnston, C. J.: This was an action begun by the appellees, Charles M. Wilson and P. L. Montague, as partners, to recover upon a contract of insurance be tween them and the appellant, the German-American Insurance Company. The faets in the case are not in dispute. Charles F. Yost was the agent of several insurance companies at Caney, among them the appellant, and was intrusted with signed policies with power to complete contracts and to fill out and deliver policies as occasion required. In 1909 the appellees owned an airdome theater, which they converted into a skating rink of steel construction with a pyroid roof. After the completion of the improvements they contracted with Yost for insurance, on the building for $375, and on the stage equipment, picture machine and other property in the building to the amount of $500,. without designating the company in which the insurance should be taken. The premium was paid and received, and at the same time it was arranged that Yost would place the policy in his safe and should thereafter keep the property insured. Policies wére written by him on the property in two other companies which he represented, one after the other, but upon directions from each of these companies the policies issued were canceled, and then he determined to place the insurance with the appellant. After resolving to insure with appellant he began to write out the policy, but darkness .intervened and he concluded to postpone the completion of the policy until the following morning. During the night the building was totally destroyed by fire, and no policy was ever delivered to appellees by appellant or its agent. After the fire Yost informed appellees of the action he had taken, but refused to complete and deliver the policy to them. At first they undertook to enforce the policies which had been issued by other companies and thereafter canceled, but' finally pressed their claim against appellant to a judgment, from which an appeal has been taken. It is first contended that the contract of insurance not being in writing is subject to the terms and conditions contained in the written policies usually and customarily issued by the appellant. One of the conditions of these policies, it is said, was that proofs of loss should be furnished within sixty days, and that no action could be maintained for a loss unless compliance with this requirement had been made. No proofs of loss were furnished by appellees, and in explanation of this omission they say that it resulted from the refusal of the appellant to give them a policy from which they could learn the conditions of policies customarily issued by the appellant. Failure to make proofs of loss within a specified time, however, does not operate to forfeit the rights of the insured unless there is an.express provision in the policy imposing a forfeiture for noncompliance with the requirement. (Insurance Co. v. Owens, 69 Kan. 602, 77 Pac. 544.) It is said that there was a provision in the policy usually issued by the appellant that no action could be maintained or recovery had until proofs of loss were made, but the condition pleaded in the answer upon which the case was tried does not provide for a forfeiture of any kind. In the form of policy introduced in testimony a forfeiture clause is written, but the case must be considered and determined upon the issues formed by the pleadings in the trial court. Under the circumstances the appellant is hardly in a position to complain of the omission to furnish proofs of loss. It is insisting on compliance with the conditions of a contract and denying that a contract was made. It is insisting that appellees shall observe the requirements of the policy usually issued and still refuses to issue or furnish the policy which would inform and enable appellees to comply with its conditions. The furnishing of proofs of loss is for the benefit of the insurer, and when the company withholds the policy and the necessary information it ought not to be permitted to take advantage of its own neglect. In any event, the failure to furnish the proofs did not operate as a forfeiture of any condition named in the answer of appellant. It is next contended that a valid contract of insurance was never made between the parties. Yost was an agent of appellant, with authority to complete contracts and to issue policies. A contract made by him is as binding in its effect as if it were made by any officer or representative of the company. Although no policy was' issued, a contract was in fact made, and, as has been determined, a binding contract of insurance may be made without the issuance of a policy. (Insurance Co. v. Stone, 61 Kan. 48, 58 Pac. 986; Insurance Co. v. Corbett, 69 Kan. 564, 77 Pac. 108; Brown v. Insurance Co., 82 Kan. 442, 108 Pac. 824.) Another contention is that Yost was the agent of the insured as well as of the insurer, and that the interests were so conflicting that any contract made by him was without force. The arrangement that the agent should retain- the policy when issued and keep the properby insured thereafter is the only basis for the claim that he was acting as the agent of appellees. There is nothing substantial in the claim of agency of the insured, and in any event nothing approaching a conflict of interests. It is a common practice among agents to notify the insured of the expiration of their policies and. to send renewals to those who have been -insured with the companies represented by them. These are duties which the companies expect the agents to perform. While it is a convenience to the insured, it is really done in the interest of the insurer in order to hold the patronage of the insured. The fact that the policy was to have been left in the safe of the agent after the contract was made was a mere matter of accommodation to appellees, and did- not operate to create a conflicting agency any more than the custody of a written contract by one of the parties to it would make him the agent of the other. No evidence was offered to show, nor in fact was there any claim, that there was fraud in the transaction or collusion between Yost and the appellees. Duality of agency is permissible under the law in some instances. Thus it has been said: “The maxim that ‘no man shall serve two masters' does not prevent the same person from acting as agent, for certain purposes, of two or more parties to the same transaction when their interests do not conflict, and where loyalty to the one is not a breach of duty to the other.” (Nolte v. Hulbert, 37 Ohio St. 445, 447.) (See, also, Todd v. German American Insurance Co., 2 Ga. App. 789, 59 S. E. 94; Herman v. Martineau, 1 Wis. 136, 60 Am. Dec. 368; Casey v. Donovan, 65 Mo. App. 521; Stone v. Slattery’s Adm’r, 71 Mo. App. 442; Williams v. Baldwin, 7 Vt. 503.) Whether Yost can be regarded as an agent of appellees, or whatever his relationship to them may be designated, it is certain that his duty to them is in no sense repugnant to that which he owed to the appellant. (Schauer and others v. Queen Ins. Co. of America, 88 Wis. 561, 60 N. W. 994; Insurance Co. v. Reynolds, 36 Mich. 502; Dibble v. Assurance Co., 70 Mich. 1, 37 N. W. 704, 14 Am. St. Rep. 470.) The case is quite unlike one where an agent represents two insurance companies between which there is a controversy as to the liability for a loss. The policies of insurance previously issued by other companies is a matter of no concern of appellant. They were regularly canceled, and appellant is not now contesting the validity of the cancellation. The cancellations were made before the contract with appellant was made. Its representative took the steps essential to the completion of a contract of insurance with appellees. He had the authority to do so. There was good faith in the transaction, and no reason is seen why the contract is not enforceable. The judgment of the district court will, therefore, be affirmed.	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The opinion of the court was delivered by Mason, J.: In 1905 A. C. Keating became the owner of 590 shares of the stock of the Mutual Laundry Company, a corporation. He was made vice president and treasurer, and an arrangement was entered into by which he was to devote all of his time to the service of the company, and to receive a salary then fixed by action of the directors. Prior to January 28, 1910, personal differences arose between Keating on the one hand and R. Matthews and C. H. Matthews on the other, they together owning 698 shares, being practically all the rest of the stock. As a result it became apparent that a change would have to be made in the management of the business, if not in its ownership. On that day the parties met and Keating offered to buy the stock of the others at $17.50 a share. This offer was refused, and a counter proposition was made to pay him $10 a share for his stock, accompanied by an intimation that if he did not accept he would be removed from connection with the management of the company. He accepted and a sale was made on that basis. A memorandum of the agreement was made. Shortly after the completion of the deal Keating demanded of the company several hundred dollars, which he alleged to be owing to him as unpaid salary. Payment being refused, he brought action on the claim, and recovered a judgment, from which the company appeals. The defendant maintains that the contract made between Keating and the Matthews included a settlement of all claims on his part against the company, and argues that such an agreement can not be set aside merely because one of the parties overlooked something or made a mistake of fact against himself. This legal proposition is not controverted. The question involved is whether the evidence conclusively showed that a settlement was affected which covered the claim sued upon, the trial court having found to the contrary. The memorandum referred to did not upon its face indicate the adjustment of a demand for salary. In fact, it seemed expressly to negative such an adjustment. It read: “Cash payable at 1:30 P. M. this day. Keating to be given, his salary, including to-day. If it is overdrawn he to pay back. On sale he is to have no claim on anything, credits, supplies or other assets of co. & the differences are then considered adjusted.” The concluding sentence, considered by itself, would be sufficient to cut off claims against the company of every character, but it yields to the more explicit statement that the plaintiff’s salary was to be paid, and that if overdrawn the excess was to be refunded. • The writing as a whole indicates that the. amount due Keating as salary was not adjusted. By its terms, if he had been found to be' overpaid to the extent of several hundred dollars he would have been compelled to make restitution. The reference to a claim upon the assets of the company is explained by the fact that Keating contended that even if he accepted the offer of $10 a share for his stock he would still be entitled to a portion of the undivided profits then on hand, amounting to about $1500. The contention that the claim for salary was included in the settlement necessarily rests for its support upon oral evidence. During the negotiations' the attorney of the Matthews stated, in substance; that if the sale of the stock was made the transaction was to “clear the sky” and leave nothing for future adjustment or claim, and this was assented to by Keating. But the trial court specifically found that this was said with reference to the previous claim of Keating to a share in the accumulated profits, and was so understood by all the parties.' It also appears from the defendant’s answer that in the discussion it was agreed that if time was given on the payment for the stock “R. Matthews and C. H. Matthews should be entitled to all dividends accruing or that had accrued to the stock of the plaintiff.” The evidence seems to justify the finding that the matters in controversy, to settle which the con- eluding sentence was added to the agreement, had relation to -the disposal of dividends earned but not declared prior to the time Keating sold his stock and received payment for it. The motion» by the adoption of which Keating’s salary was fixed read: “C. H. Matthews as manager and A. C. Keating .as vice-president and treasurer, in consideration of the fact that they devote their entire time to the service of the company, shall each receive as a salary for said services $20 per week for the first $300 gross receipts of this company per week, with an additional four per cent for each and every dollar of business per week done by the company up to $500 per week. No further increase of salary shall be allowed to said C. H. Matthews and A. C. Keating until the earnings of the company are sufficient to pay to the stockholders seven per cent per annum upon the stock, when said salaries shall be increased to five per cent instead of four per cent upon all amounts above said original $300 per week.” From April 1,1907, up to the time the stock was sold, the ■ earnings of the company were sufficient to pay seven per cent dividends, and such dividends were actually paid. Keating- and C. H. Matthews had habitually drawn, in addition to the flat rate of $20 a week, four per cent of the receipts up to $500, but at the time of the settlement neither had ever drawn any part of the additional one per cent to which they had been entitled for nearly three years. In the discussion leading up to the sale of the stock Keating was asked by the attorney for the Matthews how much salary was due him, and answered that it would- be about twenty-five or thirty dollars. The court found, however, that Keating meant, and was understood by the other parties to mean, that that would be the balance due him on the basis of what he had actually been drawing. The court also found that none of the parties thought anything about the additional one per cent at the time; that the next day it occurred to Keating that he had never re ceived it; that he did not know how much it would amount to without examining the books and making a computation; that in the afternoon he did this and demanded payment of the company of the amount found to be due him. We do not think these findings, or the evidence on which they are based, compel the conclusion that the claim for additional salary was barred. There was no room for any disagreement as to the total amount of salary Keating had earned, and there was no disagreement in fact as to how much he had received; there was no actual controversy on the subject and no actual settlement. The negotiation was not between the company and Keating as to how his account stood, but between the Matthews and Keating with reference to the purchase of stock in the company. The controversy as to a claim of Keating against the assets of the company did not relate to a demand against the company for services, or for anything else; it had to do merely with the question as to who, as' between buyer and seller, would be entitled to dividends already earned, but not declared. Of course, the question of how much the company owed Keating was material in agreeing upon a price to be paid for his stock. If he misrepresented the amount, a buyer who relied upon his statement would have the right to rescind the contract, or to have the price abated, not by the full amount of the understatement, but according to its effect upon the value of the stock purchased. If Keating had purposely misstated the sum due on his salary and the Matthews had been misled, he would doubtless be estopped from now claiming a larger amount. But the court found that there was no purpose to deceive, and no actual deceit. The parties all knew how the salary was fixed. There is no serious contention that Keating misled any one, either as to the gross receipts of the business or as to the total amount he had drawn. And in any event the Matthews did not deal with him on the basis that his statement of the amount due was necessarily correct, as conclusively appears from the insertion in the memorandum of the stipulation that if he was overdrawn he must account for the excess. The judgment is affirmed.	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Thé opinion of the court was delivered by West, J.: The plaintiff sued for damages to a caxload ■of cattle alleged to have been shipped, by oral agreement, over the defendant’s road from Parker, Kan., to the Kansas City Stockyards in Kansas City, Kan., averring'that the defendant furnished a defective car, which was switched back and forth at Paola for four or five hours, delaying the shipment and causing four of the cattle to be killed and four crippled and rendered unfit for the market, to the plaintiff’s damage of $350. The answer alleged that the shipment was made under a written contract by the terms of which the defendant was to- deliver the cattle to the consignee at Kansas City, Mo., and written notice of any loss or injury should be given before the shipment should leave the -defendant’s lines or be mingled with other live stock ■or removed from pens at destination. The reply alleged that if the defendant did sign the contract set up in the answer it was because he was compelled to do so after the cattle were received for shipment and loaded and that he was not apprised of its terms or offered any choice of rates therein referred to, but was advised that unless he signed, the cattle would not be shipped; that he was not familiar with the terms of the contract and did not agree to any of them; and '.further, that the representative of the defendant had actual knowledge-of the condition of the cattle upon their arrival at the destination. The jury found in ■favor of the plaintiff in the sum of $295.25, being $135.25 for cattle killed, $65 for those crippled, $45 for inability to “take the fill,” and $50 for loss of market. The last two items were remitted, and judgment was entered for $200.25 and. costs. The defendant appeals and complains that the court refused it the right to pursue the plaintiff- on cross-examination as to his connection with the notorious Buckfoot sprinters for the purpose of affecting his credibility. An offer to go into details was overruled, but the defendant was permitted to inquire and the plaintiff was required to answer touching his' arrest in connection with the leader of this band on the charge of obtaining moiiey fraudulently. The plaintiff having taken the stand as a witness thereby held himself out as-truthful and reliable; and under the well-settled rule in this state the defendant had a right to search into his previous life and conduct for The purpose of enabling the. jury To'judge as to his character and credit. The limit to which such cross-examination should go is ordinarily discretionary with the trial' court (The State v. Pugh, 75 Kan. 792, 796, 90 Pac. 242; Ramsey v. Partridge, 86 Kan. 398, 121 Pac. 343), and while in this case it was unnecessarily restricted, still, as the plaintiff testified mainly as to the shipment, its value and returns, on all of which points there was other • testimony, the defendant suffered no material .prejudice by the restriction. The court admitted- the report the commission company made to the plaintiff, and stated by him to be substantially correct as he remembered it, and which' was evidently- the basis on which he settled for the shipment. This was competent as a memorandum to refresh his memory-touching the sums realized for the dead and crippled-cattle, its weight and probative force being for the jury. (McNeely v. Duff, 50 Kan. 488, 31 Pac. 1061; Telegraph Co. v. Collins, 7 Kan. App. 97, 53 Pac. 74.) Certain reports, telegrams and memoranda touching the shipment made by the trainmen in the line of their duty were rejected on the' ground of incompetency. These were proper reports of transactions or events made in the regular course of business and were admissible under section 384 of the civil code (Richolson v. Ferguson, 87 Kan. 411, 124 Pac. 360; Barker v. Railway Co., 88 Kan. 767, 129 Pac. 1151), but as the witnesses stated substantially all that was shown by these reports no material prejudice is deemed to have arisen from the ruling. Complaint is made of an instruction that the written notice provided for in the contract does not apply tó animals which are dead when they leave the defendant’s control or to those so nearly dead that they could not be removed by the plaintiff. The jury found that upon unloading the shipment four cattle were dead and three crippled and that these seven were removed from the car after the others had been unloaded. The testimony shows that the defendant had a switch foreman at the place of unloading who looked after the handling of stock, and whose duty.it was to report when he set cattle at the chute, and that the report of the stockyards company in this case stated as the cause of the delay the removal of the dead and crippled cattle, and that this notation was made after the car was set at the chute and after the stock had been unloaded. Under these circumstances we see no possible benefit which the defendant could have derived by receiving a written notice of what it already knew respecting these dead and crippled cattle. (Railway Co. v. Fry, 74 Kan. 546, 87 Pac. 754; Railway Co. v. Frogley, 75 Kan. 440, 89 Pac. 903; Darling v. Railway Co., 76 Kan. 893, 901, 93 Pac. 612; Railway Co. v. Wright, 78 Kan. 94, 95 Pac. 1132.) An instruction and certain special findings touching the contract in question and the matter of different rates for the shipment are criticised. If the blank contract was signed by the shipper in response to a statement of the agent that otherwise the cattle would not go out, as claimed by the plaintiff, and if as also claimed by him he had no knowledge of the existence of different rates, then of course the defendant would be liable for the cattle killed or crippled by its negligence. If on the other hand the contract when filled out was in all respects binding on the plaintiff the defendant would still be liable for negligently killing or crippling the cattle if proper written notice were given, or if without such notice the defendant knew the condition of the cattle while unloading as fully as it could have known by such notice. Therefore the instructions and questions referred to become immaterial. It is insisted that the finding that the defendant’s foreman at the stockyards examined the cattle when they were being unloaded and reported their condition was entirely unsupported by the evidence, but the testimony of one of the defendant’s witnesses as set out in the counter-abstract sustains the finding. (Hayes v. Railway Co., 84 Kan. 1, 5, 113 Pac. 421.) One or two of the jury’s answers to questions touching the duty and relation of the stockyards company justify some complaint, but in view of the other findings and the testimony no prejudicial error is apparent. Complaint is also made that certain questions submitted by the defendant were answered contrary to the evidence, but we find nothing of substance in this respect. Certain testimony touching statements made by the plaintiff upon a former trial, rejected by the court and on the motion for a new trial produced by affidavit, is regarded by the defendant as material, but as it touched the contract of shipment only we think,.as already indicated, that whatever view of such contract be taken the entire evidence fairly tended to show liability for so much of the damage as was covered by the final judgment of the court. Finding in the record no error materially prejudicial to the defendant the judgment is affirmed.	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The opinion .of the court was delivered by Johnston, C. J.: This was an action to recover on a contract of insurance. The appellee is doing' an insurance business in Kansas and other states on the mutual assessment plan. On November 1, 1898, it issued a policy of insurance for the sum of $2000 on the life of W. T. Bond, who paid a membership fee of $14.50 and gave a guarantee note promising to pay appellee $29. In due time the note was paid by him. All assessments or calls made upon him were paid except the one which accrued on March 25,1911, and this had not been paid at the time of his death, which occurred on July 29, 1911. The failure to pay the last assessment operates as a forfeiture of all rights under the policy unless the amount paid by the insured on the guarantee note should have been applied on the unpaid assessment. The trial court decided that the amount contributed by the insured towards the guarantee fund was not available to pay the delinquent assessments and therefore gave judgment for the insurer. Appellants contend that the guarantee deposit of $29 belonged to the insured and was available under the insurance contract to pay defaulted assessments and keep the policy alive. They further contend that the language of the guarantee note conflicted with the terms of the policy and that the former should control, and, further, that where there is an inconsistency in the governing provisions of the contract they should be liberally interpreted in favor of the insured and as against a forfeiture. The appellee, on the other hand, insists that the provisions of the note, charter and by-laws, as well as the plan of insurance, all unite in showing, that the guarantee deposit can not be used to pay the individual assessments of defaulting members. The application for insurance recited that it and the certificate of membership, together with the articles of incorporation and by-laws of the association, should form the insurance contract. In the guarantee note executed by the insured when he became a member there was added to the ordinary promise the words: “It is given for insurance, is not negotiable, becomes void in the event of the death of the maker and all unpaid installments become at once due upon lapse of membership.” In the certificate of membership it was recited that: “In the event of his death during membership his beneficiary shall receive the sum of two thousand dollars, and the guarantee fund deposited with the Association by the said member amounting to twenty-nine dollars.” It also contained the provision that: “Upon the failure of the above-named member to make any payment due from him to the association at its maturity in January, April, July or October, of each year, his guarantee deposit and all other payments made shall be forfeited and his membership shall thereupon cease.” The following provisions of the charter and by-laws were presented to the trial court and are deemed to be pertinent to the determination of the question now submitted: “Articles of Incorporation. “Article 9. “Section 2. The business of this association shall be conducted upon the mutual assessment plan, in which the payment of all. assessments shall be secured by a guarantee fund, contributed by each member pro rata according to age at entry; this guarantee fund, together with the insurance provided in the certificate of membership and by-laws of the association, to be forfeited upon failure of a member to pay his assessments within the time prescribed by the by-laws of the association; provided, however, that relief from such forfeiture, and provision for reinstatement of lapsed members may be made by the board of directors. “Article 10. “Section 1. The funds of the association shall be kept separate and distinct upon the books thereof, and shall be designated as follows, to wit: The guarantee fund, the benefit fund, the reserve fund, and the contingent fund, and such other funds as the board of directors may hereafter establish. “Section 2. The guarantee fund shall consist of the deposits pledged by each member of the association for the payment of assessments, and the said deposit required of each member shall consist of the sum of one dollar for each year of the age of the member at date of application counted at nearest birthday, and may consist of cash, or of note at four per cent interest, payable on such terms as the board of directors may prescribe, and the said board shall have power to declare a certificate of membership void and of no.effect upon defalcation of payment of any note executed for said deposit. “Section 4. The reserve fund shall consist of all guarantee deposits forfeited to the association by lapsed members, and the interest accruing from all funds of the association of whatever nature. This reserve fund shall be set apart as an emergency fund, for the purpose of providing for death losses in excess of one per cent per annum of the membership of the association, and for the further purpose of advances for the payment of death losses when the benefit fund is exhausted. “Section 5. The contingent fund shall consist of all moneys collected for the purpose of defraying the expenses connected with the transaction of the business of the association. “Section 6. Each fund shall be used expressly for the purpose indicated in the foregoing sections of this article respectively, and no appropriation shall be made of one fund for the purpose of paying a claim upon another, except as provided in section 4 of this article. “Article 11. • “Section 1. In providing funds, either by established rates or by assessment, for the purpose of promptly meeting payment of all claims against the association, the board of directors may from time to time determine and fix the amount deemed necessary therefor, the place at which, and the time at which or during which it shall become due and payable, and the manner of notifying the members thereof, and may regulate the method of collecting the same; and the board may in like manner also provide funds in advance, for the payment of any claims which may be anticipated during the three months next ensuing, basing estimate therefor on the American Experience Table of Mortality.” “By-laws. “Article 1. “Section 2. Applications for membership shall be accompanied by evidence of the health of the applicant, secured through medical examination, and the approval of an officer of, or employee occupying a position of trust in some banking institution. Each applicant shall deposit in cash or in notes made by him, a sum equal to one dollar for each year of his age for each certificate of $2000, for the guarantee fund, and one-half of that amount in cash for the first payment for the contingent fund, and shall pay ten per cent annually upon the amount of his guarantee deposit, for expense dues, payable one-half in January and one-half in July of each year. “Section 3. Any number of certificates of membership, not exceeding three, may by provision to be made by the board, be issued to. one member, and each certificate shall entitle the heirs, or legal representative, or designated beneficiary of a deceased member, to $2000 benefit, to be provided for' by assessment on the membership levied pro rata upon the guarantee fund of the associatiofi, unless otherwise supplied, and in the event that such assessments are not sufficient to meet all claims promptly, the board of directors may levy and collect by assessment on the members such additional sums as may be necessary. “Section 6. Certificates of membership in this association shall be issued and accepted by the members as quarterly term contracts between the association and the members, and shall take effect upon delivery and shall be renewable at the option of the members by payments in advance before expiration, and shall continue only during the term for which payment has been made.- “Article 3. “Section 2. Each assessment shall be levied pro rata on the guarantee deposit of each member, and shall be due and payable either in January, April, July or October, unless otherwise specified in the notice of assessment, and in addition to claims then unprovided for, may provide funds in advance for payment of claims to be anticipated in the ensuing three months, or any fraction thereof. “Article 4. “Section 1. No personal liability, beyond the payment of the amount due on the guarantee notes, is incurred by becoming a member of this association. All other payments are at the option of the member and shall continue only so long as he shall desire to keep his membership in force. In case of its termination by lapse or otherwise he shall be liable for no further payment, provided the notes given for the guarantee deposit shall have been paid. “Section 2. Upon the failure of any member to pay any assessment or note within the time and at the place named therein, his membership shall be thereby forféited, and his right to any share or interest in the funds or property of the association shall cease absolutely at the expiration of the time stipulated in which such payments are required to be made, and all payments made shall be forfeited to the association. “Section 4. In the event of the forfeiture of the rights and privileges of a member of this association the guarantee deposit pledged by such members shall become forfeited absolutely and become the property of the association. “Section 5. In the event that assessments are not paid promptly the allowance to beneficiary of deceased members shall not thereby be impaired or lessened, but the sum of such arrears shall be taken from the reserve fund, and restored eventually by collection of arrearages or forfeiture of the guarantee deposit as provided in section 2 of this article. “Article 6. “Section 1. Upon the death of any member while in good standing in the association, the guarantee deposit or pledge given by him to the association shall be returned to his beneficiary.” Under this scheme of mutual insurance can members default in the payment of assessments without forfeiture of their membership rights? If members are unable or unwilling to pay assessments, have they a right to expect and insist that money shall be taken from the guarantee fund to meet their defaults and keep their certificates alive? The unpaid assessment in this instance was only $3.36, and the court hesitates to enforce a forfeiture of membership if, upon any reasonable theory, it can be held that the association has other moneys of the insured which could have been applied to pay the assessment. So it has been said that the court: “In construing the conditions of membership when a forfeiture is claimed, will preserve, if possible, the equitable rights of the holder of the certificate of membership.” (Modern Woodmen v. Jameson, 48 Kan. 718. syl. ¶ 1, 30 Pac. 460.) In another case of a similar kind it was said: “No freedom of interpretation, however, should be indulged to accomplish the forfeiture of property rights.” (United Workmen v. Haddock, 72 Kan. 35, 39, 82 Pac. 583, 1 L. R. A., n. s., 1064.) Interpreting the provisions of the certificate, charter and by-laws as liberally in favor of membership rights as is permissible under any rule we are unable to sustain the contention of appellants. Apart from the provision in the guarantee note that it was given for insurance nothing is found which indicates that a member can postpone payment of assessments with the assurance that the guarantee fund will be used to relieve him from the effect of his default. As will be observed from the quoted provisions of the contract, the association has four funds, the guarantee, benefit, contingent, and reserve, and each belongs to the organization and is subject to its control. No member has any separate ownership or control of any part of these funds. The guarantee fund is, in a sense, a trust fund to be devoted to specified uses and can not be diverted to any other use. It is made up of the sums which each member contributes as a pledge that he will pay his assessments when due, and the alternative provisions are that if he does not pay these the deposit shall be forfeited and become a part-of the reserve fund. There is no provision that any part of it can be paid to or used by the member in any event. It is provided that if a member has paid all his assessments and dies in good standing the amount of the original deposit shall be paid to his beneficiary. The deposits which are forfeited and pass into the reserve fund are applied to the payment of death losses in excess of one per cent per annum of the membership, and in case there is not sufficient money in the benefit fund at any time to meet current death losses resort may be had to the reserve fund containing the forfeited deposits to pay such losses, and the amount so temporarily withdrawn is to be restored to the reserve, fund when the benefit fund has been replenished from assessments. On account of this provision members are assured that losses will be paid even if a part of the members shall delay payment of assessments for a time or should absolutely forfeit their membership. The provision that the guarantee deposit shall go into the reserve fund for the payment of certain losses is' wholly inconsistent with the theory that it can be used to pay assessments, and the provision that the amount of the deposit shall be paid to the beneficiary of one who was a member at his death is inconsistent with the theory that they may be devoted to the payment of the assessments of members, and so counsel pertinently ask, How can the guarantee deposit be used to pay the member’s assessment when the certificate requires it to be paid in full to the beneficiary in case the member dies in good, standing ? It is likewise true as to the interest that may have been received on deposit obligations. It, too, goes into the reserve fund, which is to be applied to specified uses, and it is clear that if it must be used for the specified purposes it is not available to pay assessments against members. The express provision that the guarantee deposit shall be forfeited for nonpayment of assessments is irreconcilable with the theory that it can be used to pay assessments. The purposes of the guarantee deposit, including the assurance thereby given to paying members that losses will be paid although some of the members should become delinquent in the payment of assessments, would be frustrated if the guarantee fund should be depleted by paying the assessments of delinquent members. The charter provisions, as well as those in the by-laws, are not open to a construction that would permit this to be done. It is ingeniously argued by counsel for appellants that as the guarantee note given by the insured designates the deposit as insurance it necessarily led the insured to believe and warrants the court in holding that the de posit which he contributed was intended to be used for the insurance of himself, and that in case of necessity the money could be applied for his individual protection and to prevent a forfeiture of his certificate. If the theory could be maintained that the deposit belonged to him and was for his individual protection, there would be reason in appellants’ contention that there is a conflict between this and the other provisions of the contract, and at the oral argument the writer was inclined to the view that a conflict did exist between the provisions of the note and those in the other provisions of the contract. A closer examination of all the provisions, however, satisfactorily shows that there is no real conflict in them. The deposit given is for insurance, it is true, but it is for the insurance of members in good standing and not of those in default who have forfeited membership in the- association. It is association, instead of individual insurance, and is not subject to individual control or use. In a case against the appellee involving the identical question presented here the supreme court of Iowa decided that the assessments of members could not be paid from the guarantee fund. After setting out the pertinent provisions of the articles of incorporation and by-laws it was said: “Under the provisions quoted, the guaranty deposit can only be used in one of the two ways specified. If the member dies in good standing, it is paid to his beneficiary — the whole of it, not a part thereof; if he fails to pay his assessments, it is forfeited to the resérve or emergency fund. In no case can the member have the guaranty deposit used for the payment of his dues or assessments, or have it used in any other way for his benefit.” (Hoover v. Bankers Life Ass’n [Iowa, 1912], 136 N. W. 117, 119.) Another case against appellee arose in Indiana on a like contract and where it was contended that the language in the note as to insurance made the deposit available for the payment of assessments, and the court ruled that the words of the noté taken alone might give rise to doubt, but when the plan of the association, as shown by the articles of incorporation and by-laws, was considered there could be no doubt upon the proposition, and it was remarked: ■ “If the articles and by-laws should be construed and held to permit the payment of mortuary assessments from the guaranty fund, which is wholly made up of the'guarantee deposits of members in good standing, that fund might be exhausted, and without any provision for the reimbursement of the same by assessments levied against members, there could be no return of the guaranty to beneficiaries. Without the guaranty fund, held as a pledge and as an inducement to members to continue in good standing, and transferred to the reserve fund on forfeiture of membership for nonpayment of assessments, the strength of the association would be speedily dissipated. As we see it, this guaranty fund is the distinguishing feature of appellee association — the feature which gives it permanence and stability.” (Stubbs v. Bankers Life Ass’n, [Ind. 1913], 101 N. E. 638, 640.) The same view of appellee’s plan of insurance was taken in McCoy v. Bankers Life Assn., 134 Mo. App. 35, 114 S. W. 551. The St. Louis court of appeals, however, took a different view- of appellee’s scheme of. insurance and the use to which the guarantee fund might be applied. That court held that the application and the certificate' constituted the contract and that the by-laws were no part of it. Some attention, however, was given to the articles and the by-laws of the association and an interpretation contrary to that which we have placed upon them was given. (Purdy v. Bankers Life Ass’n, 101 Mo. App. 91, 74 S. W. 486.) In a later case the same court had before it the same articles and by-laws, and after examining them held that a forfeiture had occurred by the nonpayment of assess•ments and proceeded as if the guarantee fund was not available to meet such assessments. The earlier case was ignored and evidently disapproved. (Smoot v. Bankers Life Assn., 138 Mo. App. 438, 120 S. W. 719.) In a case from Minnesota, depending on similar facts and wherein a question arose as to the payment of an assessment out of the guarantee deposit, it was said: “The right was given to the association to appropriate the amount • deposited in payment of death claims should the member so depositing default as to the assessments, but this provision was for the benefit of the beneficiaries of those who did not default, not for the benefit of the depositing and defaulting member. Such a provision did not operate to keep alive and in force a lapsed certificate, or to continue a membership. If it could be given that effect, and it be held that membership continued so long as the amount deposited was . not fully exhausted in meeting assessments, a premium would be offered to the members who declined to meet their assessments. The certificates became worthless when the membership ceased, and by the plain provision of the articles the membership ceased when annual dues or a mortuary call became due and were unpaid.” (Mee v. Bankers Life Association, 69 Minn. 210, 214, 72 N. W. 74.) The judgment of the district court will be affirmed. Porter, J., not sitting.	[ 18, 107, -16, -33, -120, 96, 42, 26, 83, -32, -91, 83, -23, -45, 69, 103, -2, 61, 113, 104, -10, -77, 23, 8, -42, -45, -39, -59, -79, 95, -12, -36, 76, 32, 10, -43, -90, -55, -63, -100, -50, 12, -120, -59, -39, 72, 48, 95, 118, 73, 85, -97, -21, 42, 17, -62, 45, 40, -22, -87, -48, -79, -117, -123, 127, 84, 17, 69, -104, 79, 88, 14, -104, -75, 9, -24, 115, 38, -122, 116, 107, -103, 13, 98, 103, 48, 53, -23, -68, -104, 38, -122, 15, -122, -106, 88, 35, 12, -74, -99, 118, 20, -121, 124, -4, 20, 29, 36, 1, -117, -10, -93, -49, 126, -103, -117, -1, 35, 49, 101, -115, -32, 92, 71, 126, 19, -113, -104 ]
Per Curiam: It was error to sustain a demurrer to plaintiff’s evidence. According to the proof, defendant listed his farm with plaintiff for sale at an agreed price, and was to pay a commission when a purchaser was produced who was able and willing to buy upon the terms stated. The fact that the purchaser happened to be the partner of plaintiff and would be entitled to a share of the commission would constitute no defense in an action •to recover the commission. The judgment is reversed , and a new trial ordered.	[ -109, 126, -103, -83, -104, 96, 40, -40, 69, 33, 103, 83, -19, -62, 16, 63, -26, 105, 101, 106, -34, -77, 54, 3, -10, -109, 1, -43, 49, 109, -25, -60, 77, 56, -62, 85, 99, -125, -39, 80, -86, -126, -119, 109, -23, 66, 80, 59, 84, 3, 113, -58, -5, 46, 17, 75, 41, 42, -17, 49, -31, -8, -69, -115, 127, 6, 51, 52, -104, 66, -38, 110, -108, 57, 1, -56, 114, -74, -122, 84, 11, -101, 40, 98, 103, 0, 5, -19, -72, -100, 38, -1, 15, -89, -48, 88, 11, 104, -65, -1, 52, 80, 6, -26, -28, -35, 29, -32, 7, -81, -42, -78, -65, 126, -104, -127, -9, 19, -112, 96, -51, -88, 92, 71, 16, -101, -116, -1 ]
The opinion of the court was delivered by Benson, J.: This is an appeal from a judgment upon a life insurance policy. The defense was based upon an alleged lapse of the policy for failure to pay a premium at the time stipulated. The' policy was issued March 17, 1902, on the life of Edwin H. Fenn, for $600, payable at his death to Nettie P. Fenn, his wife, in consideration of the payment of premiums as follows: $60 for the first year, and a like amount in each year thereafter in twelve installments on or before the first day of each month until ten premiums have been paid, or until the prior death of the insured. The policy contained the following clauses: “All premiums are due and payable at the Horne Office of the Company, but may be paid to agents producing receipts signed by the President or Secretary, and countersigned by such agents; and the nonpayment of any premium when due, shall forfeit all premiums paid on this policy and terminate the liability of the Company thereunder, except as hereinafter provided. . . . “This policy may be reinstated during the life of the insured at any time within twelve months of date of lapse, by the payment of all past due premiums, and a fine of ten per cent per annum on such overdue premiums.” The premiums were paid each month down to and including November, 1909.. Fenn died December 6, 1909, and the company was duly notified of that fact by letter. The company answered on December 13, stating “that said policy lapsed for nonpayment of the premium which became due on December 1st, 1909, and has not been in force since that date. No claim, therefore, can be asserted under said policy.” The. plaintiff on December 17 sent a postal money order for-$5 in a letter to the company for the December premium, which was returned with the statement that the.-, policy had lapsed on December 1, 1909. From the date of the policy all the monthly premiums were paid on or about the twentieth day of each; month and were accepted without objection or com ment. The following receipt was mailed by the company to Mrs. Fenn for the premium for March, 1904: “Northwestern National Life Insurance Company. Minneapolis, Minn. Received from N29395.. The holder of this Company’s policy, numbered as indicated in the address hereon, the sum of $5.00, being the monthly premium thereon, due March 1, 1904. Edwin H. Fenn, Ft. Scott, Kansas. Fred J. Sacket, Secretary. John MacVicar, Manager, Topeka, Kansas. Local Collector. Raid 3-19-1904.” Receipts in the same form were given for all the other payments. The plaintiff alleged in her petition that at the time the policy was issued the insuring company by its agent and authorized officers, agreed to receive the monthly payments on the policy after the payment of her husband’s salary on the 20th day of each month, and that the monthly premiums were paid and received about that date in accordance with that understanding. It was also alleged in the petition: “That defendant held out and gave said Edwin H. Fenn to understand and to believe that if he continued to make payment of said premium as provided for in said agreement on or about the 20th to 24th day of the month in which the same became due such payments would be as effectual as though said premium was paid promptly on the first day of each month, and waived the time of said payments as provided in said policy, and .gave time for the payment thereof until the 24th day ■ of each month or thereafter; that said payments were made as aforesaid with the. knowledge and consent of ■ the president and secretary of said defendant and the payments made as aforesaid were received by said • Company and receipted for from the home office of said -Company, ... that no fines of any kind or char.acter were ever requested or required to be paid by ; said insured by reason of the payment of said premium . as aforesaid, but it was the practice and custom of said • defendant to so accept and receive such payments.” The custom of the company in receiving the payments after the first day of the month, and its reason for doing so are stated in a letter relating to the plaintiff’s claim under the policy, written by its vice president and attorney in charge of the settlement of claims to the commissioner of insurance of the state of Minnesota. We quote from the letter: “Premiums on tips policy were due and payable on the first day of each month. It is true as reported to you, that the insured usually paid his premiums on or about the 20th of each month, and that those premiums were also accepted by our Company;, but it is: also true that we had' no alternative, and were compelled under the terms of the contract, to accept those: premiums provided that the insured was alive at the: date of the payment. The clause of the policy governing the matter of reinstatement reads as follows: 'This policy may be reinstated during the life of the insured at any time within twelve months of the date of lapse by the payment of all past due premiums, and a fine of 10% per annum on such over-due premiums.’ Reinstatement was, therefore, not optional with the Company. The insured had the absolute right of reinstatement at any time within twelve months provided he toas alive. We would have been compelled to accept payment of the December, 1909, premium if the insured had been alive at the date when it was received at this office, which was December 22d, 1909; but wé had already received notice that the insured had died on December 6th, 1909.” This letter is .referred to in the brief of the attorneys for the defendant as an exposition of their contention, and the defense in this aetion is based upon the theory outlined in the letter. The fact that the premiums were all accepted and receipted for without, objection or condition, about the 20th of each month, appears to afford evidence from which a waiver of the exact terms of the contract may reasonably be inferred; but it is contended that the clause giving a right to reinstatement by the payment of past-due premiums and a fine, if paid in twelve months' after default made the payment a matter of right and acceptance compulsory. If this construction of the contract is correct, the date for payment of premiums is extended twelve months, provided death does not occur sooner. If that were the meaning intended, it is reasonable to suppose that other terms would have been used in framing the policy. The premiums were apparently received and receipted for, not as conditions of reinstatement, but as ordinary payments. No allusion was made at any time to any reinstatement, nor was any suggestion offered that the payments were so received. Neither was the payment of a fine, which was made a condition of reinstatement, required in any instance. As a reason for not exacting the fines it is said that the amounts were trivial, only three cents for twenty-five days. But as a fine was due upon each reinstatement the amount, although still small, was of some moment. If a like practice has prevailed in respect to other policies and the interpretation contended for is correct, a considerable loss of revenue has resulted. If the defendant’s contention is well founded, this policy lapsed every month and was in force less than half the time. Such a situation could not have been in the mind of the insured, and it is difficult to suppose that the company So understood it. An occasional lapse might not challenge attention, but lapses every month for six years should, in view of the consequences claimed, have elicited some word of disapproval. While it is true that by the terms of the policy a notice of default was not required, the silence of the officers of this company through the long period covering more than seventy-five. alleged lapses, inducing reliance upon the acceptance of payments made after the appointed day, is a course of conduct calling for some note of warning before it is summarily abandoned and a forfeiture claimed. A forfeiture will not be permitted where by the adoption of a custom or the course of its conduct the insurer has led the insured member honestly to believe that the assessments may be paid and will be received at times other than those specified in the contract. (Foresters v. Hollis, 70 Kan. 71, 78 Pac. 160; Benefit Association v. Wood, 78 Kan. 812, 98 Pac. 219; Hartford Life Ins. Co. v. Unsell, 144 U. S. 439; Home Protection of North Alabama v. Avery, 85 Ala. 348, 5 South. 143, 7 Am. St. Rep. 54; Insurance Co. v. French, 30 Ohio St. 240.) It is concluded that the evidence was sufficient to warrant a finding that the company had waived the strict time of payment. The demurrer to the plaintiff’s evidence fairly presented the question of waiver, conceded by both parties to be the only question in the case. No other was argued. The defendant offered no evidence, and there .was no dispute concerning essential facts. The judgment is affirmed.	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The opinion of the court was delivered by Porter, J.: The appellant was adjudged insane by the probate court of McPherson county. He appealed to the district court, with the same result, and was ordered sent to the state hospital. On appeal the judgment was affirmed. (The State v. Linderholm, 84 Kan. 603, 114 Pac. 857.) This is an appeal from subsequent orders of the court overruling a motion to strike certain papers from the files and to discharge appellant. The first of these motions was filed September 5, 1910, and reads: “Comes now the said Justus B. Linderholm, by his attorney, John F. Hanson, and moves the said court: “First. To strike from the files a purported journal entry of a trial of said cause in the March.term, 1909, of said court, filed April 16, 1909, for the reason that the same was not signed by the attorney for the said Justus B. Linderholm; for the further reason that the same has not been approved by the court according to Rule No. 7 of this court; for the further reason that the supposed approval of said journal entry at chambers was without any notice to or opportunity for the said Justus B. Linderholm or his attorney to be heard. “Second. 'To strike from the files a purported statement in lunacy in the insanity of Justus B. Linderholm, purported to be filed about March 20, 1909, be cause the same is no part of any proceeding had in this court or any paper to be filed as of that date and has no right to such filing. John F. Hanson, Attorney for Justus B. Linderholm.” The motion for appellant’s discharge was filed’ December 30, 1911, and reads: “Comes now the said Justus B. Linderholm and moves the said court as follows: “First. That, whereas, nearly two years have elapsed since the trial of this case, that the said Justus B. Linderholm be not adjudged to be committed to any hospital or put under any restraint whatever, unless a new inquiry be had, and where there is a finding of insanity; that the said Justus B. Linderholm have his costs herein so far made, and if no new finding of insanity be found, or no new inquiry is desired, that he be discharged without day and have all his costs. “Second. That, whereas, since the previous finding of insanity in said matter the said Justus B. Linderholm has been kidnapped and placed in the Topeka State Hospital for the insane under an irregular order of commitment from the probate court of this county, where he or his attorney was not present, and who had no jurisdiction because this court had not yet passed on that question, and after being so committed and unlawfully held, or subject to said order, he was, on the 1st day of June, 1911, by the superintendent of said hospital, discharged from all restraint as being able to care for himself, and by reason of said commitment and release the proceeding herein is terminated before final judgment of commitment by this court, and, therefore, the said Justus B. Linderholm should be discharged without day and have his costs. John F. Hanson, Attorney for Respondent.” Rule No.-7 of the district court of McPherson county, to which reference is made in the first' motion, provides as follows: “Service of process, publication notices, and drafts of journal entries will not be approved except in cases of such entries, as counsel do not agree upon.” All presumptions are in favor of the regularity of the proceedings, and it .will be assumed that the journal entry was approved in accordance with the foregoing rule, and doubtless it was so approved because opposing counsel for some reason hád failed to agree upon the form in which the judgment should be entered. There is, however, no statute or rule of law requiring such a paper to be approved by counsel, or even to be filed. It is the duty of the clerk to keep a journal in which all orders of the court are required to be recorded. “All judgments and orders must be entered on the journal of the court, and specify clearly the relief granted or order made in the action. ‘The clerk shall make a complete record of every cause as soon as it is finally determined, whenever such record shall be ordered by the court. He shall make up such record in each cause in the vacation next after the term at which the same was determined; and the presiding judge of such court shall at' its next term thereafter subscribe the same.” (Civ. Code, §§ 412, 413.) If a dispute arise between counsel as to what was decided or adjudged, the court is of course the final arbiter; but there is no law requiring that before the judgment shall be entered upon the journal the court shall sign any paper. The only thing the judge is required to sign is the journal itself, and that is largely a matter of form; and for the reason that the journal is not usually written up until after the term adjourns, the judge is not required to subscribe to the journal until the next term. It never was contemplated that the entry of a solemn judgment of a court of record could be made to depend upon the whim or caprice of an attorney upon one side or the other of a cause or upon the failure of the attorneys on opposing sides to agree to the form of the judgment. The duty of the clerk is to make a true record of the order or judgment of the court. If for any reason the record fail to speak the truth, the court at any time may make an order correcting the same. This has been often decided. (Martindale v. Battey, 73 Kan. 92, 84 Pac. 527; Christisen v. Bartlett, 73 Kan. 401, 84 Pac. 530; Chemical Co. v. Morrison, 76 Kan. 799, 803, 92 Pac. 1114; Calhoun v. Anderson, 78 Kan. 746, 747, 98 Pac. 274; In re Hornung, 81 Kan. 180, 184, 105 Pac. 23; Plummer v. Ash, 90 Kan. 40, 133 Pac. 157.) The practice usually followed by which the opposing counsel agree upon the form which the clerk shall use in recording upon the journal a judgment, decision, or order of the court, has the advantage of preventing disputes over what the terms of the order or judgment are; but even when signed by the counsel and approved by the court, the paper itself is not the record; and there is no provision of law authorizing it to be filed among the papers, or indexed upon the appearance docket, or authorizing costs for' filing or indexing. It becomes a mere form for the convenience of the clerk in making up the record. T-he clerk could make a correct entry of the judgment if he cared to do so, without any form or copy or memorandum before him except the papers on file in the case and the verdict of the jury, where a verdict has been returned. Very often many useless and redundant recitals, which might well be dispensed with, are found in the entry of a judgment. It is true that the judgment in this case was one which affected the personal liberty of a citizen, and was of the utmost importance to him and to the state. Notwithstanding its importance, it required but a very simple entry of record. A dozen lines to show the nature of the proceeding, the appearance of the parties in open court,' the fact that a jury was impaneled, a verdict of insanity returned, and the judgment or order of the court, is all that was required. If the journal recited correctly the judgment of the court, that was all that was necessary, no matter how or from what source the clerk may have obtained the form used in making the entry. If the journal failed to state correctly what the court decided, it is the duty of the court to make the record speak the truth. Thé only reasons urged by the appellant why the journal entry should be stricken from the files are that it was not signed by his counsel, nor approved according to Rule 7 of the district court, and because his counsel had no notice of the approval or opportunity to be heard. As observed, the presumption is that it was approved in accordance with Rule 7, and for the reason that appellant’s counsel, for some cause not set forth in the record, had declined or refused to agree thereto. Since it was not necessary that such a paper be either prepared or approved by any person, the appellant lost nothing by having no opportunity to be heard when it was approved. There would be no end of litigation, if, as contended, the attorney for the defeated party could prevent the entry of the judgment on the final trial of. a cause by merely withholding his approval of the form in which the judgment should be entered. The order of the district court refusing to strike from the files the statement or certificate of lunacy made by the probate court and filed with the appeal was not a final order, and therefore not appealable. Whether such a statement was properly filed in the district court need not be considered. The motion to strike was made long after the judgment was affirmed on the final appeal*. Besides, the filing of the paper or the refusal to strike could not in any manner have prejudiced the appellant. The court very properly denied the motion to discharge the appellant. The district court had no jurisdiction whatever over his custody, nor has this court. The grounds upon which the motion to discharge is based are so obviously untenable that no further commeht is deemed necessary.- The appellant may or may not be insane at this time. As to that we express no opinion. After the original judgment had been affirmed the district, court had no further jurisdiction in this action to inquire into that question; nor could it acquire jurisdiction of that matter by the filing of the motions subsequent to the appeal and affirmance. The rulings on the motions are affirmed.	[ -14, -8, -7, 31, 58, -31, 34, 26, 81, -15, 54, 115, -19, -102, 68, 121, 107, 45, 117, 121, -20, -77, 118, -31, -78, -45, 113, -57, 49, -20, -12, 87, 12, 112, 10, 53, -26, -120, -63, 20, -114, 1, -120, -32, -47, -64, 52, 107, 22, 78, 113, -18, -13, 42, 94, -61, -119, 44, -38, 60, -44, -80, -117, 29, 105, 2, -93, 2, -102, -91, 64, 44, -112, 49, 11, -20, 115, -122, -124, 116, 7, -87, 44, 119, -62, 35, 29, -17, -96, -104, 15, 6, -115, -25, -102, 89, 105, 32, -74, -39, 117, 112, 3, 124, -17, -107, 60, 44, -128, -37, -108, -109, -49, 60, -106, 15, -37, -123, 52, 49, -113, -92, 92, -41, 113, 59, -50, -75 ]
The opinion of the court was delivered by BURCH, J.: The plaintiff, a person of African descent, sued the defendants for damages resulting from a claimed discrimination against him on account of his race and color. The verdict and judgment were for the defendants, and the plaintiff appeals. The statute under which the action was brought reads as follows: “That if-any of the regents or trustees of any state university, college, or other school of public instruction, or the state superintendent, or the owner or owners, agents, trustees or managers in charge of any inn, hotel or boarding-house, or any place of entertainment or amusement for which a license is required by any of the municipal authorities of this state, or the owner or owners or person or persons in charge of any steamboat, railroad, stage coach, omnibus, street car, or any other means of public carriage for persons or freight within the state, shall make any distinction on account of race, color, or previous condition of servitude, the person so offending shall be deemed guilty of a midemeanor, and upon conviction thereof in any court of competent jurisdiction shall be fined in any sum not less than ten nor more than one thousand dollars, and shall also be liable to damages in any court of competent jurisdiction to the person or persons injured thereby.” (Gen. Stat. 1909, § 2916.) The petition alleged that the plaintiff purchased a ticket entitling him to become a passenger on the railway company’s train No. 4, known as the Golden State Limited, from the station of Pratt to the station of Topeka, and that when he attempted to enter the train at Pratt the Pullman conductor in charge of the entrance willfully, maliciously and unlawfully denied him admission because of his race and color, although white persons were received and allowed to ride. Both compensatory and punitive damages were claimed. The train in question was a limited train consisting of Pullman cars and an observation car. - In order to ride upon this train it is necessary that Pullman fare be paid in addition to railroad fare. The observation car was a railway company car and not a Pullman car. There are no observation car tickets and seats in that car may be occupied only by persons who purchase Pullman accommodations. Space in one of the Pullman cars is accorded to Pratt and may be reserved upon application made in advance. If reservation be not made in advance Pullman accommodations must be arranged for with the Pullman conductor of the train. These regulations apply to all passengers on the Golden State Limited, and their reasonableness is not an issue. The plaintiff purchased a railroad ticket and presented himself for admission to the train at one of the open entrances in charge of the- Pullman conductor. He had made no reservation of Pullman accommodations. He testified that he knew he had to pay extra fare, that he had the money ready to pay the extra fare, was willing .to do so, and so informed the Pullman conductor, but that he was told he must have an “observation ticket,” which could not be procured, and was denied admission, while white men were allowed to board the train. The evidence for the defendant was clear and abundant to the contrary, and fully justified the inference that the plaintiff rested his right to enter the train upon the possession of his railroad ticket alone. The jury has resolved the conflict in the evidence in favor of the defendants, and the controversy over the facts is closed. The súbstance of the Pullman conductor’s testimony was that persons applying for admission to the Golden State Limited very often do not understand that they must pay extra fare for Pullman accommodations; that after they are on the train they do not so understand; ■that the train can not be stopped to put such passengers off; that under such circumstances he had many times paid Pullman fares out of his own pocket, and consequently that it is important that he be assured he is to receive his Pullman collections. When the plaintiff arrived at the entrance to the train he first asked the plaintiff if he had a reservation, and then informed the plaintiff that there was excess fare to be paid and that he would have to buy Pullman accommodations to ride on that train. The plaintiff said he had a first-class ticket and was entitled to ride on that train, to which the conductor replied, “Yes, you are, provided you buy Pullman accommodations.” The plaintiff said he was not so informed at the ticket office, and that he would go back to the ticket office. He went away and did not return before the train departed. The plaintiff said nothing about being willing to pay Pullman fare and made no offer to do so. The expression “observation ticket” was not used. Such tickets can not be purchased, because there are none. The conductor believed the plaintiff understood he paid for railroad and Pullman transportation combined when he purchased his railroad ticket — that his railroad ticket would go for everything — and that the plaintiff went back to the ticket office to discuss the matter with the ticket agent. Complaint is made because the Pullman conductor was allowed to testify directly to the state of his own mind. The case is one in which such evidence is peculiarly appropriate. The gravamen of the charge was discrimination against the plaintiff because of his race and color. The elements of willfullness and malice were also included. Therefore the existence of a definite mental act and a definite mental attitude consti tuted the substance of the issue. The conductor had actual knowledge of the facts respecting this issue, and indeed the only exact knowledge concerning them, and his testimony was clearly admissible under the rule which has been applied many times by this court. (Gardom v. Woodward, 44 Kan. 758, 25 Pac. 199; Gentry v. Kelley, 49 Kan. 82, 88, 30 Pac. 186; Bice v. Rogers, 52 Kan. 207, 34 Pac. 796; The State v. Kirby, 62 Kan. 436, 63 Pac. 752; Johnson v. Dysert, 70 Kan. 730, 731, 79 Pac. 652; Bowers v. Railway Co., 82 Kan. 95, 107 Pac. 777; Baker v. Railway Co., 85 Kan. 263, 116 Pac. 816; Eckerd v. Weve, 85 Kan. 752, 118 Pac. 870.) Some evidence was rejected which if admitted might have been considered in connection with an allowance of punitive damages. Since no liability for any damages was established, the rulings relating to such evidence are not now important. The plaintiff made requests for several instructions which involved the proposition that the railroad ticket gave him the privileges of a passenger so far as the matter of boarding the train was concerned. These requests ignored the regulations governing passage on that train and were properly denied. The court instructed the jury that if the agents of the defendants acted without malice, wantonness, willfulness, fraud or oppression, and the plaintiff failed to secure transportation on the train in question through an honest misunderstanding, he could not recover. The petition was framed on a single definite theory, as it should have been, and charged a violation of the civil right of the plaintiff to be transported by the defendants on terms of equality with other persons without distinction or discrimination on account of his race and color. If the Pullman conductor honestly misapprehended the statements and the attitude of the plaintiff* and as a result honestly inferred that the plaintiff was insisting upon the right to ride upon terms which would violate regulations applicable to everybody, there was no discrimination against him in either act or intention. Indeed, in that event the failure to secure transportation resulted from the very opposite of discrimination, and the right which the action wras brought to vindicate was not infringed. In this court an effort is made to transmute the action into one for negligence of some kind,, but the petition and the instructions asked by the plain-, tiff presented no such theory of the case to the trial court. The railroad ticket purchased by the plaintiff was' good for one day from the date of sale. He went from. Pratt to Topeka on the passenger train following the Golden State Limited on the day the ticket was purchased. He could have used the ticket had he so desired, but he chose to purchase another and keep the one first procured as evidence. . The court properly instructed the jury that he could not recover the value of the unused ticket as actual damages. It is not necessary to discuss instructions which were requested and instructions which were given other than those which have been referred to. The case was fully and fairly presented to the jury, and the judgment of the district court is affirmed.	[ 48, -22, -43, -98, 26, -28, 10, -112, 97, -127, -90, 19, -87, -48, -108, 49, -9, 15, 113, 107, -12, 27, 70, -93, -46, 83, -45, -59, 53, 74, -28, -10, 72, 32, 74, 85, 102, 75, 69, 92, -114, 34, 41, 72, -71, 104, 48, 120, -126, 79, 33, -97, -13, 46, 24, 91, -19, 61, -5, -95, -30, 113, -122, 7, -20, 86, 35, 36, -98, -89, 92, 29, 24, 17, 32, -8, 115, -90, -126, -12, 73, -103, -55, 98, 99, 97, 37, -89, -68, -88, 46, 59, -81, -89, -74, 81, 42, 37, -66, -97, 117, 82, 15, 90, -22, 20, 17, 36, -125, -114, -74, -77, -19, 36, -106, 7, -21, -89, 17, 101, -52, 50, 95, 7, 56, -101, -97, -66 ]
Per Curiam,: The state brings an action against Don A. MounDay and L. D. W. MounDay, and two corporations, one organized under the laws of Oklahoma, the other under the laws of New Mexico. The corporate names were originally the same — The American Sugar Manufacturing & Refining Company. The name of the New Mexico corporation has been changed to The Consolidated Sugar Company. The plaintiff alleges in substance that neither corporation has authority to do business in Kansas, but that through the MounDays each has .operated here, receiving payment from a large number of persons on purported sales of real estate and rights connected therewith, for which no substantial equivalent was returned. It asks that the defendants be ousted from the exercise of corporate functions, and that a receiver be appointed to take charge of the business and its proceeds. Upon the hearing of the application for the appointment of a receiver no appearance was made for either of the corporations. The MounDays appeared specially and moved to dismiss the action upon the ground ■that without service upon the corporations, or upon one of them, the court can acquire no jurisdiction in this proceeding over the individual defendants, and.that no valid service has been made upon either corporation because, although summons has been served upon the general manager of each, such service is void, for the reason that neither corporation has ever engaged in business in this state. The motion to dismiss is overruled. The court admittedly has acquired jurisdiction of the corporations if they have been engaged in business in this state. Whether this is the case is a question of fact to which the evidence now before the court warrants an affirmative answer. The MounDays have been acting professedly for the corporations, doing business in their name. They assert now that they had no authority to do so. In that case they have wrongfully assumed to exercise corporate functions, and this court has jurisdiction over them in this action to oust them therefrom. We are asked, through a receivership, to take control of the proceeds of the business, in order that those who have been imposed upon by the defendants may, so far as practicable, have restored to them the money they have paid in the belief that they were dealing with a corporation legally engaged in business here. The money in the hands of the defendants would not be forfeited merely.because it was obtained by the exercise of corporate functions without authority, if their conduct had otherwise been unobjectionable. The plaintiff alleges that, apart from the question of corporate capacity, the money was obtained by fraud and. misrepreséntation, and without any substantial equivalent being returned. A proceeding in quo warranto is. not well adapted to the investigation of a question of fraud of this character, or to the adjustment of the: rights of the contributors to the fund as against the; defendants or as between themselves. A receiver will not be appointed by this court, but the pendency of this proceeding will not prevent an application for such appointment by a court of general jurisdiction. The restraining order against the transfer of any property or funds which are the proceeds of transactions purporting- in any way to be those of either of the corporations, or used in connection therewith, is continued in force for ten days from this date. Pending the final decision of the case the defendants are restrained .from engaging in any business in the guise of that of a corporation.	[ -16, -2, -8, 60, 26, 96, 60, -98, 93, -29, 103, 83, -23, -54, -124, 121, -13, 45, 80, 122, -75, -77, 71, 105, -42, -13, -39, -36, -70, 79, -20, -44, 76, 48, -118, -43, -58, 2, 65, 28, -50, 0, 9, 100, -15, -125, 52, 43, 18, 79, 81, 14, -13, 40, 27, -53, 73, 44, 105, 45, -47, -8, -70, 21, 127, 23, 33, 36, -104, -121, -56, 62, -104, -112, 57, -24, 115, -74, -122, 116, 15, 93, 40, 110, 99, 32, -127, -25, -104, -120, 46, -34, -99, -89, -112, 24, 3, 73, -74, 31, 124, 6, 3, -2, -2, 21, 31, 108, 3, -50, -44, -125, -113, 118, 28, 65, -17, -105, 48, 81, -50, -90, 93, 71, 50, -109, 15, -48 ]
The opinion of the court was delivered by Holmes, J.: This is an appeal by the State under K.S.A. 22-3602(b)(1) from an order of the district court dismissing a felony murder charge against defendant, Edward F. Brantley. Defendant is an inmate at the state penitentiary in Lansing. The State’s complaint alleged that on September 27, 1983, defendant stabbed and killed Lawrence Matthews, Jr., another inmate, with a knife. The first count charged defendant with felony murder, claiming the homicide occurred during defendant’s possession of a weapon in a penal institution contrary to K.S.A. 21-3826, a class E felony. The second count charged defendant with a separate violation of K.S.A. 21-3826 for possession of the knife. The facts at this point are not disputed. At the preliminary hearing, the evidence was that the defend ant waived his Miranda rights and gave a statement to prison officials. Brantley told them he had armed himself with a thirteen-inch metal homemade knife following a dispute with Matthews earlier in the day. He admitted stabbing Matthews. At the conclusion of the evidence defendant contended mere possession of a knife in violation of K.S.A. 21-3826 would not support application of the felony murder rule. Relying on our decision in State v. Underwood, 228 Kan. 294, 615 P.2d 153 (1980), the trial court agreed and dismissed the first count of the information, stating: “Despite the arguments of the State, there really is no meaningful distinction between the facts in Underwood and the facts in this case. For reasons set forth more fully in that opinion . . . the Court does rule that in fact a felony murder charge cannot be supported by a mere possession and, therefore, the Court will dismiss Count One without prejudice to refiling as a different charge. The Court will bind over the defendant for arraignment on Count Two, finding that in fact there is probable cause to believe that he had committed the offense charged . . . possession of contraband at the Kansas State Penitentiary.” Broadly phrased, the issue on appeal is whether an inmate’s possession of a weapon in violation of K.S.A. 21-3826 constitutes a collateral felony which will support application of the felony murder rule. K.S.A. 21-3401 defines first-degree murder as “the killing of a human being committed maliciously, willfully, deliberately and with premeditation or committed in the perpetration or attempt to perpetrate any felony.” (Emphasis added.) K.S.A. 21-3826 prohibits traffic in or unauthorized possession or distribution of contraband in penal institutions, and reads: “Traffic in contraband in a penal institution is introducing or attempting to introduce into or upon the grounds of any institution under the supervision and control of the director of penal institutions or any jail, or taking, sending, attempting to take or attempting to send therefrom or any unauthorized possession while in aforesaid institution or distributing within any aforesaid institution, any narcotic, synthetic narcotic, drug, stimulant, sleeping pill, barbiturate, nasal inhaler, alcoholic liquor, intoxicating beverage, firearm, ammunition, gun powder, weapon, hypodermic needle, hypodermic syringe, currency, coin, communication, or writing without the consent of the warden, superintendent or jailer. “Traffic in contraband in a penal institution is a class E felony.” Although a literal application of K.S.A. 21-3401 would allow any felony to support a charge of felony murder so long as a causal relation exists, we have never allowed the doctrine to be applied so broadly. The purpose of the felony murder doctrine is to deter those engaged in felonies from killing negligently or accidentally, and it should not be extended beyond the rational function it was designed to serve. Thus, to invoke the felony murder rule there must be proof a homicide was committed in the perpetration of or an attempt to perpetrate a felony and that the collateral felony was one inherently dangerous to human life. State v. Lashley, 233 Kan. 620, 631, 664 P.2d 1358 (1983). In State v. Underwood, 228 Kan. 294, we addressed the question whether the collateral felony of unlawful possession of a firearm by an ex-felon, in violation of K.S.A. 21-4204, was an inherently dangerous felony which would support application of the felony murder rule. The Court held that it would not. Writing for the Underwood majority, Justice Fromme noted that the logic of the felony murder rule is based on the theory of transferred intent. “The malicious and premeditated intent of committing the inherently dangerous collateral felony is transferred to the homicide to supply the elements of malice and premeditation without further proof. Consistent with this thinking, most courts require that the collateral felony be inherently dangerous for the felony murder rule to be applicable. [Citation omitted.] ‘In the typical case of felony-murder, there is malice in “fact,” express or implied; the malice is implied by the “law.” What is involved is an intended felony and an unintended homicide. The malice which plays a part in the commission of the felony is transferred by the law to the homicide. As a result of the fictional transfer, the homicide is deemed committed with malice; and a homicide with malice is common law murder.’ 2 Wharton’s Criminal Law § 145, p. 204 (14th ed. 1979).” 228 Kan. at 303. The court adopted the rule that the elements of the collateral felony should be viewed in the abstract, and the circumstances of the commission of the felony should not be considered in determining whether the collateral felony is inherently dangerous to human life. 228 Kan. 294, Syl. ¶ 5. Applying this rule to the facts of Underwood, the majority concluded the ex-felon’s possession of a firearm in violation of K.S.A. 21-4204 was not inherently dangerous to human life. “This crime is a status crime in that it is limited to drunkards, drug addicts and ex-felons. It is malum prohibitum. The possession of the firearm is prohibited because a firearm in the possession of a habitual drunkard, a narcotics addict or an ex-felon is against the public policy of the State as declared by the legislature. The possession of the firearm when viewed in the abstract is not inherently dangerous to human life. This is true because it seems unlikely that mere possession, which has been defined as dominion and control over an object, and not its use, could be undertaken in so dangerous a manner that the prohibited possession would result in murder in the first degree. The above meaning of the possession as contemplated in this firearm statute is taken from State v. Neal, 215 Kan. 737, 738-39, 529 P.2d 114 (1974). It appears quite impossible to find an intent in this collateral felony encompassing malice, deliberation and premeditation so as to transfer these elements to the homicide and relieve the prosecution from proof of the same. If these elements are present in the use of the firearm they are not present in the possession of the firearm. They should then be proven as elements of premeditated first degree murder by reason of the malicious and deliberate use of the gun.” 228 Kan. at 303-04. The court also considered the harsh results flowing from application of the felony murder rule, in particular the accused’s inability to plead the defenses of accident, lack of malice, heat of passion and self-defénse. The conclusion reached in Underwood was that, viewing the elements of the collateral felony in the abstract, unlawful possession of a firearm by an ex-felon is not a felony inherently dangerous to human life and will not sustain a conviction for murder in the first degree under the felony murder rule. The State argues the basic element distinguishing this case from Underwood is the situs of the offense and that the security considerations prevailing in a prison render possession of contraband therein inherently dangerous to human life. Reduced to its essence, the argument is that it is proper to infer the existence of the requisite mental elements required in first-degree murder because of the accused’s status as a prisoner or because of the accused’s presence within the confines of the penal institutions. In the present case the State is requesting a rule which would operate to make every homicide committed by a prisoner possessing contraband murder in the first degree. To state that a person’s status is the controlling factor ignores the fact that homicides “behind the walls” are as capable of occurring by accident, in self-defense or heat of passion, or without the requisite mental state, as are homicides occurring among the free population. We do not agree with the State’s position. Even assuming the accused’s status as an inmate is a relevant consideration, it would be unreasonable and overbroad to adopt a rule imputing the malice, premeditation and deliberation necessary for first-degree murder every time an inmate violates the rules against possession of contraband. If these mental elements exist in a particular case, it imposes no undue burden on the State to prove them, and the fiction of felony murder is unnecessary for conviction. If these mental elements do not exist, it would be a travesty to elevate an accidental killing, or a killing in self-defense, into first-degree murder through the felony murder doctrine, thereby foreclosing an accused’s ability to plead the traditional defenses and virtually insuring conviction of a crime the accused simply did not commit. We agree with the trial court that our decision in Underwood is controlling. A violation of K.S.A. 21-3826, when the elements thereof are viewed in the abstract, is not a felony inherently dangerous to human life and will not support a charge of felony murder. The judgment is affirmed.	[ -16, -21, -8, -34, 41, 98, 43, 24, 97, -13, -28, 115, 109, -53, 1, 105, 123, 55, 116, 121, -59, -73, 103, -63, -74, -77, -47, -43, -77, -36, -84, -28, 9, -48, 78, 85, 70, 10, -29, -36, -114, 4, -88, -46, -46, 8, 52, 46, 94, 6, 49, 14, -21, 43, 22, -61, -55, 40, 75, -81, 16, -111, -53, 23, 91, 18, -78, -122, -100, 37, 80, 54, -104, 61, 1, -8, 115, -122, -122, 116, 111, -103, 100, 102, 98, 33, 89, -50, -84, -103, 47, 119, -99, -89, -104, 88, 97, -116, -106, -35, 119, 52, 6, 116, -25, 20, 27, 124, 0, -41, -72, -111, 9, 120, -46, -69, -21, -123, 48, 113, -51, -94, 92, 103, 88, 27, -114, -44 ]
The opinion of the court was delivered by Lockett, J.: The State appeals from the dismissal of the information against Patrick T. McQuillen for its failure to bring the defendant to trial within 180 days. K.S.A. 22-3402. The informa tion charged McQuillen with rape (K.S.A. 21-3502) and aggravated sodomy (K.S.A. 21-3506). The defendant was charged with rape and aggravated sodomy in a complaint filed November 18, 1982. After the preliminary hearing the defendant was bound over for trial December 6, 1982. Arraignment took place immediately. On January 20, 1983, the defendant’s case was set for trial on February 7, 1983. Defendant claimed consent to intercourse. In preparation for trial the State had the victim, Ms. H., examined by Dr. Modlin, a psychiatrist, to determine if she was suffering from “rape trauma syndrome.” January 19, 1983, the defendant filed a motion to compel the victim to submit to a similar examination by defendant’s psychiatrist, Dr. Parks. The court sustained the motion January 26, 1983, continuing the trial at the defendant’s request to March 28,1983. March 28,1983, the date set for trial, the court was informed that the defendant’s psychiatrist had been unable to complete his evaluation of the victim. The defense was ready to proceed with the trial if the judge would prohibit all expert witnesses from testifying. The State, to keep the trial court from denying it the use of its expert witness’ testimony, requested a continuance of the trial to allow the defendant’s psychiatrist to complete his evaluation of the victim. The victim, on her own volition, had discontinued sessions with the defendant’s psychiatric expert because of a personality conflict. At the hearing on the motion to continue, the prosecutor stated the victim was willing to resume sessions with the defendant’s psychiatrist. At the March 28, 1983, hearing, the trial court granted a continuance to the State and set trial for June 27, 1983. After Dr. Parks completed his evaluation of the victim, a copy of his report was delivered to the State on June 1, 1983. January 26,1983, the defendant filed two motions; (1) a motion in limine seeking to prohibit testimony by the State’s expert psychiatrist concerning rape trauma syndrome; and (2) a motion to determine the applicability of K.S.A. 60-447a (Weeks), now K.S.A. 1983 Supp. 21-3525, commonly referred to as the rape shield statute. June 17, 1983, a hearing on both motions was held. June 23, 1983, the district court issued a memorandum decision and order. The court ruled: “[I]t is the conclusion of this Court that expert testimony concerning whether or not the complaining witness in this case suffers from rape trauma syndrome, should be excluded because its probative value is substantially outweighed by the danger of confusion, unfair prejudice, or misleading the jury as well as the practical considerations stated. There appears to be a substantial likelihood that the admission of such testimony would be violative of the provision of K.S.A. 60-447a. .“The Motion in Limine filed by the defense is sustained and expert testimony as to whether or not the complaining witness may be suffering from rape trauma syndrome will not be permitted to be offered by either party at trial.” June 24, 1983, the State filed a notice of interlocutory appeal. The defendant and his counsel appeared for trial on June 27, 1983. The State did not appear. The district court continued the case while the appeal was pending and released the defendant from the obligations of his bond. August 10, 1983, the Court of Appeals dismissed the State’s interlocutory appeal for lack of jurisdiction. The State requested the district court set the case for jury trial at its earliest convenience. Trial was set for September 20, 1983, by the court. September 14, 1983, the defendant filed a motion to dismiss the information on the ground he had been denied a speedy trial. The district court later sustained the motion, ruling the State had failed to bring the defendant to trial within 180 days pursuant to K.S.A. 22-3402. The State appeals from the dismissal. The State contends the trial court erred in dismissing the information for its failure to provide MeQuillen with a speedy trial. K.S.A. 22-3402(2) controls the defendant’s statutory right to a speedy trial. That statutory section provides: “If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within one hundred eighty (180) days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3).” The purpose of K.S.A. 22-3402 is to implement and define the constitutional guarantee of a speedy trial. The statute establishes certain maximum time limits within which a defendant must be brought to trial. State v. Ransom, 234 Kan. 322, 325, 673 P.2d 1101 (1983). Arraignment in this case occurred on December 6, 1982. Trial was finally set in this case for September 20, 1983. The relevant time period may be broken into segments: Days Elapsed 0 12/ 6/82 Defendant arraigned 44 1/19/83 Defendant filed motion to examine victim by his expert 45 1/20/83 Court set case for trial 2/7/83 51 1/26/83 Court sustained defendant’s 1/19/83 motion. Trial reset for 3/28/83. Defendant filed additional motions: (1) motion in limine; (2) motion to determine effect of 60-447a 112 3/28/83 State requested a continuance to allow defendant’s expert to complete sessions with victim. Trial reset for 6/27/83 177 6/ 1/83 State received copy of defendant’s expert’s report 199 6/23/83 Court sustained defendant’s 1/26/83 motions 200 6/24/83 State filed notice of interlocutory appeal 247 8/10/83 State’s interlocutory appeal dismissed. Court set trial for 9/20/83 288 9/20/83 Court sustained defendant’s motion to dismiss for lack of speedy trial The defendant admits the 49-day delay resulting from the January 26, 1983, continuance is chargeable to the defense. Defendant claims the second continuance granted by the court on March 28,1983, was requested by the State. Defendant claims on March 28,1983, the State failed to object to the court’s setting the trial on June 27, 1983; therefore, that delay caused by the March 28 continuance is chargeable to the State because the State in its effort to use Dr. Modlin’s expert psychiatric testimony was willing to delay trial to obtain the testimony. Both parties agree the third delay was caused by the State’s futile interlocutory appeal and chargeable to the State. The State does not contend the Court of Appeals improperly dismissed its appeal for lack of jurisdiction. Rather, the State argues its interlocutory appeal tolled K.S.A. 22-3402; therefore, the 48 days that elapsed during the appeal are not chargeable to either party. K.S.A. 22-3604 provides: “(1) A defendant shall not be held in jail nor subject to an appearance bond during the pendency of an appeal by the prosecution. “(2) The time during which an appeal by the prosecution is pending shall not be counted for the purpose of determining whether a defendant is entitled to discharge under section 22-3402 of this code.” Emphasis supplied. The State then attempts to analyze the Kansas statutory right to a speedy trial, K.S.A. 22-3402, using United States constitutional speedy trial principles. The statutory right and the constitutional right to a speedy trial are distinguishable. State v. Ransom, 234 Kan. at 325. The purpose of K.S.A. 22-3402 is to implement and define the constitutional guarantee of a speedy trial. The statute establishes certain maximum time limits within which a defendant must be brought to trial. State v. Ransom, 234 Kan. at 325. An accused has the right to trial within the time fixed by the legislature, and when the State fails to commence trial within the time limit, the accused is entitled to be discharged. State v. Grimes, 229 Kan. 143, 622 P.2d 143 (1981). The balancing test cited by the State is utilized only in examining a defendant’s constitutional right to a speedy trial. See State v. Rosine, 233 Kan. 663, 664 P.2d 852 (1983); State v. Strong, 8 Kan. App. 2d 589, 663 P.2d 668, rev. denied 233 Kan. 1093 (1983). The State points out that K.S.A. 22-3402(2) requires “any person charged with a crime and held to answer on an appearance bond” shall be brought to trial within 180 days after arraignment. Pursuant to K.S.A. 22-3604(1) the defendant was not subject to an appearance bond during the pendency of the interlocutory appeal by the State. Therefore, the State argues the statutory provision requiring that the defendant be tried within 180 days after the arraignment was tolled during the State’s ill-fated interlocutory appeal. This course of reasoning and construction of K.S.A. 22-3604(2) would prevent any interlocutory appeal taken by the State from figuring into statutory speedy trial calculations. In State v. Grimes, 229 Kan. 143, Syl. ¶ 7, the State improperly appealed the granting of a new trial by the district court. This court said: “The time that an unauthorized interlocutory appeal by the State is pending in the Supreme Court, including extensions of time secured by the defendant in order to respond in that matter, does not delay trial of the accused in the district court, and such time should not be charged against the accused in computing the 90 and 180-day time periods fixed by K.S.A. 1980 Supp. 22-3402.” In Grimes, the State improperly appealed the granting of a new trial by the district court. Here, the State’s interlocutory appeal was dismissed for want of jurisdiction and hence was unauthorized. The time that an unauthorized interlocutory appeal by the State is pending in the Supreme Court delays the trial of the accused in the district court, and such time should be charged against the State in computing the 90- and 180-day time periods fixed by K.S.A. 22-3402. We disagree, however, with the trial court’s reasoning that the March 28, 1983, continuance was chargeable to the State. That day the State informed the trial court the victim had completed three sessions with the defendant’s psychiatrist, Dr. Parks. During the fourth session with Dr. Parks, a conflict developed between the victim and the doctor. The victim refused to have any more discussions with the doctor and left. Defendant’s attorney admitted he had been unable to contact Dr. Parks immediately after he learned of the problem because he was involved in defending another person in a murder trial. Dr. Parks needed additional time with the victim in order to render his opinion. Defendant’s attorney claims it was the complaining witness who had caused the delay of the defendant’s trial by refusing to see Dr. Parks. On the March trial date he requested that the court exclude both the State’s and defendant’s psychiatrists’ testimony in an effort not to delay the trial. Defendant’s attorney agreed that if the court were to allow the psychiatrists to testify, a continuance requested by the State was necessary to allow Dr. Parks to complete his examination of the victim. The time limitations for trial may be extended at the State’s request beyond the restrictions imposed by K.S.A. 22-3402(1) and (2). An extension can be obtained by the State where material evidence is unavailable, reasonable efforts have been made by the State to procure the evidence and there are reasonable grounds to believe such evidence can be obtained within the limitations contained within the statutes. If the State fails to bring the accused to trial within the time limits fixed by statute, and the delay is not due to the application or fault of the defendant or to extensions of time allowed by K.S.A. 22-3402(3), Kansas appellate courts have not hesitated to enforce the legislature’s mandate and order a defendant discharged. However, delays which are the result of the application or the fault of a defendant are not counted in computing the statutory period. It is the State’s obligation, not the accused’s, to provide the defendant with a speedy trial in conformity with the Constitution and the statutes. State v. Warren, 224 Kan. 454, 456, 580 P.2d 1336 (1978). The record of the trial court as to the days to be charged against the State and the defendant is to be examined to determine whether or not a dismissal was warranted for the State’s failure to bring a defendant to trial within the limitation imposed by statute. The State had the right to introduce evidence establishing that Ms. H. was suffering from stress similar to rape trauma syndrome. The defendant then had to be given the opportunity to establish that she was not suffering from such stress. Ms. H.’s personality conflict with the defendant’s psychiatrist, Dr. Parks, resulted in his inability to complete the diagnosis of Ms. H. Without additional sessions with Ms. H., Dr. Parks was unable to determine if she was suffering from the rape trauma syndrome. In an effort to have Dr. Modlin available to testify as to his findings, the State was forced by the court to request a continuance to allow Dr. Parks, the defendant’s expert, to complete his sessions with Ms. H. The court counted the delay caused by this continuance against the State. Ms. H. was not an agent or officer of the State. Her status is that of a witness/victim, the focal point of the defendant’s alleged crime. There is no evidence that any agent of the State encouraged, assisted, or requested that Ms. H. terminate her sessions with the defendant’s psychiatrist. This was her own decision based on her personality conflict with Dr. Parks. Ms. H. was willing to see a third person if one was recommended. Ms. H. was under no court order to appear and be diagnosed by Dr. Parks. The State had requested that she appear after Dr. Parks had so requested. After the conflict between them developed, it was the State that convinced Ms. H. to return to Dr. Parks and complete the requested sessions. The State was willing to have the trial continued to allow the defendant’s psychiatrist to complete his evaluation of Ms. H. The State wanted to use its expert witness and, to ensure a fair trial for the defendant, the defendant’s expert had to complete his evaluation in order to determine if the victim was or was not suffering the rape trauma syndrome. The State did everything it possibly could to ensure that Ms. H. would cooperate with Dr. Parks. He was able, then, to complete the sessions with Ms. H., and his report was delivered to the State’s attorneys June 1, 1983. Under these facts, when a defendant’s trial is delayed because a defendant’s psychiatrist is unable to complete his evaluation of the victim due to a personality conflict with the victim, and the victim was not encouraged, assisted, or requested by the State or its agents not to cooperate, that delay cannot be charged to the State. Otherwise, a defendant might employ a psychiatrist who could inadvertently create a situation which would prevent the psychiatrist from completing his evaluation before the time for a speedy trial had run. The January 26 — March 28 continuance (61 days) was at defendant’s request and is chargeable to him. The time period running from when the continuance was granted on March 28, 1983, until when the report of the defendant’s psychiatrist was delivered to the State on June 1, 1983, a total of 65 days, was therefore also chargeable to the defendant. The 180-day time requirement to bring the defendant to trial had not expired when the court granted the defendant’s motion to discharge. The State next complains the trial court erred in sustaining the defendant’s motion in limine to exclude the testimony of Dr. Modlin, the State’s expert witness, regarding the rape trauma syndrome, since the defendant claimed the victim consented to intercourse. The trial judge in his memorandum opinion stated: “It appears that only a few reported eases have dealt with the precise question of the admissibility of expert testimony to establish whether or not the complaining witness in a rape case suffers from rape trauma syndrome. “Apparently, the first of these decisions was that of our Kansas Supreme Court in State v. Marks, 231 Kan. 645, 647 P.2d 1292 (1982). In this decision, the Supreme Coux't held in substance that x-ape trauma syndx'ome is a scientifically x'ecognized phenomenon and when consent is the defense in a pi'osecution for x'ape, qualified expei't psychiatric testimony regarding the existence of x-ape tx-auma syndrome is x-elevant and admissible. “Shox'tly after the decision of the Kansas Supreme Court in Marks, supra, the Supreme Court of Minnesota had occasion to deal with the same issue in the case of State v. Saldana, 324 N.W.2d 227. In a well-x-easoned opinion, the Supreme Court of Minnesota took the opposite viewpoint on this issue and revei'sed and remanded a lower court conviction for x-ape because such testimony had been admitted at trial. . . . Rape trauma syndrome, which describes the stages a rape victim typically goes through, is not a fact-finding tool but a therapeutic tool useful in counselling, and evidence of reactions of other people does not assist the jury in its fact-finding task. It was held that the expert testimony should have been excluded because its probative value was substantially outweighed by the danger of unfair prejudice, confusion or misleading the jury. The Court stated at page 230 of the opinion: “ ‘To allow such testimony would inevitably lead to a battle of experts that would invade the jury’s province of fact-finding and add confusion rather than clarity.’ “In another decision, the Supreme Court of Minnesota followed its ruling in Saldana, supra. In State v. McGee, 324 N.W.2d 232, it reversed a rape conviction where a doctor was permitted to testify that the complaining witness suffered from symptoms consistent with rape trauma syndrome. “In an opinion filed March 15,1983, in State v. Taylor, No. 45336, the Missouri Court of Appeals for the Eastern District treated the same issue and followed the decision of the Minnesota Supreme Court in Saldana, supra, after noting the Kansas decision in Marks, supra. A review of this opinion indicates that Missouri follows a more restrictive rule as to the admissibility of expert testimony than does Kansas. The rule in Missouri is that expert opinion testimony should never be admitted unless it is clear that the jurors themselves are not capable, for want of experience or knowledge of the subject, to draw correct conclusions from the facts proved. The Missouri Court of Appeals also concluded in this decision that the admission of psychiatric opinion testimony will inevitably lead to violations of the Missouri rape shield statute, the same point being raised by the defendant in the instant case. “After the events which have taken place in this case, the rationale expressed by the Minnesota Court in Saldana, supra, appears to be more persuasive. After considering the expert testimony of Dr. Gilbert Parks at the hearing on these Motions and examining some of the psychiatric treatises cited in the various opinions dealing with this subject, it is clear that rape trauma syndrome, while generally recognized in psychiatry as a valid diagnosis, is not employed by psychiatrists as a fact-finding tool but as a therapeutic tool useful in the diagnosis and treatment of victims of traumatic stress disorders.” The trial judge ordered the evidence of the rape trauma syndrome excluded from the trial. In the majority of the cases cited by the trial judge in his memorandum opinion, the defendants admitted that sexual intercourse had occurred but claimed it was consensual. An “expert” was allowed to describe the typical post-rape symptoms and behavior of rape victims and the expert then gave his opinion that the rape victim had not fabricated her allegations. The expert was then allowed to testify as to whether or not he believed the victim was telling the truth in stating she was raped by the defendant, thus creating the presumption that she was raped. This is the common thread in the cases where courts have found evidence of rape trauma syndrome to be inadmissible— the evidence offered by the expert was evidence affirming the rape by the defendant. In State v. Saldana, 324 N.W.2d 227 (Minn. 1982), the court found that the scientific evaluation of rape trauma syndrome had not “reached a level of reliability that surpasses the quality of common sense evaluation present in jury deliberation.” 324 N.W.2d at 230. Kansas, however, reached an opposite conclusion in State v. Marks, 231 Kan. 645, 647 P.2d 1292 (1982). California, which refused to allow testimony of rape trauma syndrome in People v. Bledsoe, 36 Cal. 3d 236, 203 Cal. Rptr. 450, 681 P.2d 291 (1984), has not, however, totally outlawed use of such evidence. The Bledsoe court observed that evidence of such has been admitted in a number of California cases where it has played “a particularly useful role by disabusing the jury of some widely held misconceptions about rape and rape victims, so that it may evaluate the evidence free of the constraints of popular myths.” 36 Cal. 3d at 247-48. The Saldana court held that the expert’s testimony could not be admitted to show that the victim was raped. This was also the conclusion in State v. Taylor, 663 S.W.2d 235 (Mo. 1984), where the Supreme Court of Missouri, en banc, found that a properly qualified expert in the psychological testing fields may testify that the patient, client or victim does possess and exhibit the characteristics consistent with those resulting from a traumatic stress reaction, such as rape. Under the circumstances of that case, Dr. Amanat, the expert witness, went too far in expressing his opinion that the victim suffered rape trauma syndrome as a consequence of the incident with the defendant at Mary’s Moonlight Lounge. That conclusion vouched too much for the victim’s credibility and added a quantity of factualness to the victim’s testimony on the critical issue of whether the defendant raped her. In People v. Bledsoe, 36 Cal. 3d 236, the rape trauma syndrome testimony was introduced as a means of proving that a rape had occurred. The court held that such testimony was inadmissible for the purpose of proving the witness was raped, but went on to add that “nothing in this opinion is intended to imply that evidence of the emotional and psychological trauma that a com plaining witness suffers after an alleged rape is inadmissible in a rape prosecution.” 36 Cal. 3d at 252. In State v. Marks, 231 Kan. 645, the testimony of Dr. Modlin, the State’s expert witness, was based on the symptoms he noted during his psychiatric evaluation of the witness. Dr. Modlin testified that the witness was the victim of a “frightening assault, an attack” and was suffering from the post-traumatic stress disorder known as “rape trauma syndrome.” He never stated that the victim was raped or that the stress which caused her disorder was the result of a rape. He also did not testify that the cause of the victim’s disorder was intercourse with the defendant. We disagree with the trial court’s determination that the court’s reasoning in Marks was incorrect. We reaffirm “[w]hen consent is the defense in a prosecution for rape, qualified expert psychiatric testimony regarding the existence of ‘rape trauma syndrome’ is relevant and admissible.” 231 Kan. 645, Syl. ¶ 8, emphasis supplied. The expert may testify that the patient/victim does possess and exhibit the emotional and psychological trauma consistent with rape trauma syndrome. Finally, the trial court found admission of testimony concerning the rape trauma syndrome would violate the rape shield provisions of K.S.A. 60-447a (Weeks), now K.S.A. 1983 Supp. 21-3525, which states in part: “(2) Except as provided in subsection (3), in any prosecution to which this section applies, evidence of the complaining witness’ previous sexual conduct with any person including the defendant shall not be admissible, and no reference shall be made thereto in the presence of the jury, except under the following conditions: The defendant shall make a written motion to the court to admit evidence or testimony concerning the previous sexual conduct of the complaining witness. The motion must be made at least seven days before the commencement of the trial unless that requirement is waived by the court. The motion shall state the nature of such evidence or testimony and its relevancy and shall be accompanied by an affidavit in which an offer of proof of the previous sexual conduct of the complaining witness is stated. The court shall conduct a hearing on the motion in camera. At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the previous sexual conduct of the complaining witness is relevant and is not otherwise inadmissible as evidence, the court may make an order stating what evidence may be introduced by the defendant and the nature of the questions to be permitted. The defendant may then offer evidence and question witnesses in accordance with the order of the court.” The statute is not an absolute prohibition against the defendant presenting evidence of the complaining witness’ prior sexual conduct. Nor does the statute prohibit the prosecuting attorney from introducing' evidence of previous sexual conduct of the complaining witness. K.S.A. 1983 Supp. 21-3525(3). Expert testimony submitted by the State of the rape trauma syndrome when exhibited by the complaining witness would not violate the statute. Safeguards are still contained within the statute to protect the victim. A showing of relevancy is still necessary before the complaining witness’ prior sexual conduct may be admitted into evidence on behalf of the defendant. The defendant claims this court’s approval of the rape trauma syndrome as substantive evidence in a rape trial, where consent is the issue, provides a legal method by which the defendant can evade K.S.A. 1983 Supp. 21-3525(3). The statute, however, applies only to prior sexual activity, not to whether the act in question was consensual. When consent to intercourse is the issue and the State’s expert has testified that the victim is-suffering from rape trauma syndrome, the defendant’s attorney may cross-examine the State’s expert to determine how the expert arrived at that conclusion. The defendant may bring in his own expert witness in rebuttal to testify that the victim is not suffering from rape trauma syndrome. Such rebuttal evidence, however, would not allow wholesale admittance of the victim’s past sexual conduct, unless that information was used by the State’s expert to make his determination of rape trauma syndrome. Otherwise, the trial court would still be required to determine the relevancy of such evidence before allowing its admission into evidence. Nor may a defendant present evidence that the victim was not suffering from rape trauma syndrome where the State has not first introduced evidence that the victim was suffering from rape trauma syndrome. There are no statistics to show that there is any value to a negative finding that the rape trauma syndrome is not exhibited by the alleged victim. Negative evidence to be admissible must have some probative value.. Where consent is the defense in a prosecution for rape, expert testimony of the absence of the rape trauma syndrome is not relevant or admissible. Reversed and remanded for trial. Holmes, J., concurs in the result.	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The opinion of the court was delivered by Prager, J.: This is an appeal in a condemnation action brought by the Kansas Department of Transportation in July 1982, to condemn land owned by Richard B. Mettee and his family (the landowners). The subject property is located on the northwest corner of the north intersection of highways K-7 and K-10 in Johnson County. The land was condemned for the purpose of widening K-7 and constructing a cloverleaf interchange. The land involved in this case was a rectangular-shaped tract consisting of approximately 235 acres before the condemnation and 196 acres after the condemnation. As a part of the condemnation, the State took part of the access rights to the property. The court-appointed appraisers found the tract to be valued at $864,001 before the taking and $679,469 after the taking. They awarded these landowners the difference as damages in the amount of $184,532. The landowners appealed the appraisers’ award. The appeal was tried to a jury by the district court in January 1983. The jury returned a verdict finding the value of the property before the taking to be $870,000 and the value after the taking to be $695,000. The jury awarded the difference in the amount of $175,000 as damages. In May 1983, the trial court granted the landowners’ motion for a new trial on the ground that the verdict was not supported by the evidence. A second trial was held in October 1983. A jury returned a verdict finding the value of the property before the taking to be $913,126 and $631,635 after the taking, awarding the difference of $281,761 as damages. The district court denied the condemnor’s motion for a new trial, and an appeal was taken to the appellate courts. The first issue raised on the appeal is that the trial court erred in granting the landowners’ motion for a new trial after the first trial on the ground the jury verdict was not supported by the opinion testimony of the witnesses who testified at the trial. The opinion testimony of the three witnesses regarding the value of the land before and after the taking, the damages, and the jury’s verdicts on those elements were as follows: APPRAISER BEFORE VALUE AFTER VALUE DAMAGES Curtis Bliss 800,000.00 638.000.00 162,000.00 Al Donoho 857,500.00 687.000.00 170,500.00 William Hedges 940.000.00 490.000.00 450.000.00 JURY VERDICT 870.000.00 695.000.00 175.000.00 The landowners complained that the verdict of.the jury was not within the scope of the evidence presented, because the jury found the value of the property after the taking to be $695,000 which was higher than the “after” value testified to by any of the witnesses. It should be noted that the jury’s findings as to the “before” value and the damages awarded were within the range of the opinion testimony in the case. The trial court agreed with the landowners that the verdict was outside the evidence and granted a new trial. There is some difficulty in determining the issue presented in this case because of a substantial conflict in the language used in a number of opinions of this court and of the Court of Appeals on the question whether a jury’s specific findings on the value of the property both before and after the taking must be within the range of the opinions of the witnesses who testified at the trial. The measure of compensation to be applied where private property is taken for public use is covered by K.S.A. 26-513, which was originally enacted in 1963 and subsequently amended in 1969 (L. 1969, ch. 196). K.S.A. 26-513 provides as follows: “26-513. Same; compensation, (a) Necessity. Private property shall not he taken or damaged for public use without just compensation. (b) Taking entire tract. If the entire tract of land or interest therein is taken, the measure of compensation is the value of the property or interest at the time of the taking. “(c) Partial taking. If only a part of a tract of land or interest is taken, the compensation and measure of damages are the difference between the value of the entire property or interest immediately before the taking, and the value of that portion of the tract or interest remaining immediately after the taking. “(d) Factors to be considered. In ascertaining the amount of compensation and damages as above defined, the following factors, without restriction because of enumeration, shall be given consideration if shown to exist but they are not to be considered as separate items of damages, but are to be considered only as they affect the total compensation and damage under the provisions of subsections (b) and (c) of this section: “1. The most advantageous use to which the property is reasonably adaptable. “2. Access to the property remaining. “3. Appearance of the property remaining, if appearance is an element of value in connection with any use for which the property is reasonably adaptable. “4. Productivity, convenience, use to be made of the property taken, or use of the property remaining. “5. View, ventilation and light, to the extent that they are beneficial attributes to the use of which the remaining property is devoted or to which it is reasonably adaptable. “6. Severance or division of a tract, whether the severance is initial or is in aggravation of a previous severance; changes of grade and loss of impairment of access by means of underpass or overpass incidental to changing the character or design of an existing improvement being considered as in aggravation of a previous severance, if in connection with the taking of additional land and needed to make the change in the improvement. “7. Loss of trees and shrubbery to the extent that they affect the value of the land taken, and to the extent that their loss impairs the value of the land remaining. “8. Cost of new fences or loss of fences and the cost of replacing them with fences of like quality, to the extent that such loss affects the value of the property remaining. “9. Destruction of a legal nonconforming use. “10. Damage to property abutting on a right-of-way due to change of grade where accompanied by a taking of land. “11. Proximity of new improvement to improvements remaining on condemnee’s land. “12. Loss of or damage to growing crops. “13. That the property could be or had been adapted to a use which was profitably carried on. “14. Cost of new drains or loss of drains and the cost of replacing them with drains of like quality, to the extent that such loss affects the value of the property remaining. “15. Cost of new private roads or passageways or loss of private roads or passageways and the cost of replacing them with private roads or passageways of like quality, to the extent that such loss affects the value of the property remaining.” (Emphasis supplied.) In this case we have a partial taking of a tract of land, and it should be noted that under K.S.A. 26-513(c), the compensation and measure of damages is the difference between the value of the entire property immediately before the taking and the value of that portion of the tract remaining immediately after the taking. K.S.A. 26-513(d) enumerates a number of factors to be considered in ascertaining the amount of damages. That section specifically states that these factors are not to be considered as separate items of damages but are to be considered only as they affect the total compensation and damages under subsections (b) and (c). It is, thus, clear that it was the legislative intent that the amount of damages to be awarded where there is a partial taking is to be based upon the difference between the value of the property immediately before and immediately after the taking. Prior to the effective date of K.S.A. 26-513, the customary procedure was for a jury to bring in a verdict stating the total amount of damages to be awarded the landowner without making a specific finding as to the value of the land before and after the taking. In Diefenbach v. State Highway Commission, 195 Kan. 445, 407 P.2d 228 (1965), the landowners owned property outside the city of Wichita which was condemned in part for the building of a highway. The landowners were dissatisfied with the jury verdict and appealed, contending that the verdict was contrary to and not supported by the evidence. This court affirmed, stating that ordinarily a verdict for actual damages will not be disturbed on appeal merely because the reviewing court cannot ascertain the precise method by which the jury arrived at the exact amount of its verdict when such amount is reasonably within the range of the evidence. In Urban Renewal Agency v. Tate, 196 Kan. 654, 414 P.2d 28 (1966), the land was taken on February 8, 1962, prior to the effective date of K.S.A. 26-513. There were only two witnesses at the trial, the landowner and one expert witness who testified on behalf of the Urban Renewal Agency. The landowner described the land and the improvements on it. The trial court permitted the landowner to testify that the market value of the property was between $8,000 and $9,000. The expert witness for the condemnor testified that the property taken had a fair market value of $3,200. However, the opinion testimony of the expert was qualified by the fact that the only time he had occasion to view and appraise the property was a year before the date of the taking and the landowner had made numerous improvements on the property subsequent to that time. The landowner moved to strike all of the testimony of the condemnor’s expert relating to market value on the basis it was too speculative and too remote. The trial court overruled that objection. The trial court apparently changed its mind and instructed the jury as follows: “ ‘You are instructed that the only evidence you have before you as to the market value of the landowner’s property on the agreed date of taking, February 8, 1962, is that evidence of the landowner. “ ‘The landowner’s evidence as to the market value of her property on the date of taking is that it was worth between $8,000.00 and $9,000.00. “ ‘You are instructed that you will retire to your jury room and return a verdict in favor of the landowner. You will, under the evidence of this case, return a verdict placing the market value of the landowner’s property at a figure of not less than $8,000.00 and not more than $9,000.00.’ ” p. 656. As would be expected, the jury brought in a verdict for $8,950 which was within the range of the opinion testimony of the landowner. The condemnor appealed and this court reversed. On appeal, it was held that the opinion of a witness as to the value of the property at the time it was condemned will not be deemed conclusive, but the jury may consider such opinion in connection with all the other testimony in the case, and then determine for itself from all the testimony the value of the property taken. The opinion states that the jury is entitled to take into consideration the facts testified to by the witnesses as to the cost, the development, and the condition of the property and then to come to its own opinion as to value. The language in Tate would seem to vest in the jury an unbridled discretion to disregard the opinion testimony as to value and to consider a wide variety of factors which may be brought forth -by the witnesses in the course of the trial. At this point K.S.A. 26-513 became effective, and this court adopted the rule requiring the verdict of the jury to be within the scope of the opinion testimony presented in the case to establish the value of the property both before and after the taking. In Kansas State Highway Commission v. Roepke, 200 Kan. 660, 438 P.2d 122 (1968), the trial court granted the landowners’ motion for a new trial in a condemnation case on the ground the verdict was contrary to the evidence. At trial, the opinion testimony regarding the value of the land before the taking ranged from $29,500 to $40,000. The jury found the value before the taking to be $32,000 which was within the range of the opinion evidence. The opinion evidence regarding the “after” value ranged from $24,525 to $31,400. The jury found the value after the taking to be $27,330 which was likewise within the range of the opinion evidence. The jury, however, returned a verdict for the difference of $4,670 which was lower than the difference testified to by any one witness. Because of the jury’s findings the trial court granted a new trial on the basis that the jury verdict was not within the evidence. On appeal, the Supreme Court reversed the trial court’s granting of a new trial, stating as follows: “We do not understand the law to be that in a case of this kind a verdict may not be lower than the difference testified to by any one witness. Just as here, there usually is considerable variance in the testimony as to ‘before and after’ value. A jury is entitled to consider all of the evidence — not just that of one witness. Here the evidence of the ‘before’ value ranged from $29,500 to $40,000. The jury found it to he $32,000. The evidence of the ‘after’ value ranged from $24,525 to $31,400. The jury found it to be $27,330. Both figures found by the jury were within the evidence — -and the verdict represented the difference. We realize it could be argued that theoretically, the jury, under the evidence, could have found the ‘after’ value to be higher than the ‘before’ value — see amounts testified to by witnesses Lohse and Heeney — and yet the verdict would have been ‘within the range’ of the evidence. Courts are not so impotent, however, as to be unable to right such a situation should it arise.” p. 664. The majority of the court reversed with directions to reinstate the verdict in the first trial and enter judgment thereon. This court addressed the issue again in Humphries v. State Highway Commission, 201 Kan. 544, 442 P.2d 475 (1968). In Humphries, there was a wide divergence in the opinions of the expert witnesses as to value before and after. The amount awarded by the jury was within the testimony of the four witnesses as to the value before and after, but the result did not have support of any particular witness. The court held that the jury verdict was within the evidence, stating that a jury verdict in an eminent domain proceeding awarding damages for the taking of the landowner’s property in an amount greater than the lowest damages testified to and less than the highest damages testified to is totally consistent with the evidence. From the opinion it appears that the jury brought in a verdict for the amount of compensation but made no specific findings as to the value before and after. The next case involving this issue was City of Wichita v. May's Company Inc., 212 Kan. 153, 510 P.2d 184 (1973). In reversing a jury award, the court stated: “In order for the verdict of a court or jury to stand, the amount must be supported by the testimony. The ‘before’ value must be equal to and not more than the highest expression of opinion evidence, and the ‘after’ value must not be less than the lowest expression of opinion of the value of the remaining property after the taking. [Citation omitted.] If the court or jury, in determining a condemnation award, has no competent admissible testimony on each of these values, an award or verdict cannot stand.” p.156. Although the landowner testified, he did not give his opinion as to “before” or “after” value of the property. The court stated that the presentation of the plaintiffs case completely ignored the requirement of the statute. The court then commented: “Turning to defendant’s testimony, we find a ‘before’ and ‘after’ value was established. Since the verdict of the jury was not within the range of testimony of defendant’s expert, the verdict cannot stand.” p. 156. We interpret the language in May’s to mean that K.S.A. 26-513 requires that a jury’s findings as to both the “before” and “after” value of the property must be within the range of the opinion testimony. City of Wichita v. Chapman, 214 Kan. 575, 521 P.2d 589 (1974), involved a taking of an entire tract of land. The highest value placed on the property by any expert witness was $45,000. However, the landowner testified that in his opinion the property had a value of $75,000. The jury awarded the landowner $64,567. The city appealed, contending the verdict was not supported by the opinion testimony of any expert witness. The city maintained that, since the landowner, Chapman, was not qualified as an expert, his opinion should not be considered. The court rejected this argument, holding that in an eminent domain proceeding a landowner is a competent witness to testify as to the value of his property, and his qualification to testify as to the value of his property is not dependent on a showing of a knowledgeable background. The court cited a number of prior Kansas cases holding that a landowner is a competent witness to testify as to the value of his property. This case is important because it establishes that the opinion of the landowner is evidence of value even though he disagrees with the opinions of all the experts who testified at the trial. The latest case on the issue is Kansas Power & Light Co. v. Floersch, 4 Kan. App. 2d 440, 608 P.2d 1023, aff'd 228 Kan. 468, 617 P.2d 1264 (1980). In Floersch, the testimony of the appraisers as to the “before” value of the land ranged from $95,000 to $161,500. The jury found the “before” value to be $95,000, which finding was not contested. However, the expert testimony regarding the value of the property after the taking ranged from $90,000 to $103,800. The jury found the “after” value to be $87,000, which was outside the range established by the opinion testimony. The trial court denied a motion for a new trial, and the landowners appealed. The question before the court was stated to be as follows: Can a jury verdict be sufficiently supported by the evidence when it falls outside the value range established by the opinion evidence? The court attempted to distinguish Urban Renewal Agency v. Tate, 196 Kan. 654; City of Wichita v. May’s Company Inc., 212 Kan. 153; and City of Wichita v. Chapman, 214 Kan. 575. The Court of Appeals in Floersch construed Chapman as a reaffirmation of the holding in Tate that a jury should be permitted to consider all the evidence and reach its own conclusion on value and that a jury verdict is not limited to opinion evidence where other competent evidence is also presented to establish value of the property condemned. The court held that in view of the testimony of the appraisers concerning comparable sales, the verdict was supported by the evidence. Floersch, in effect, repudiates the requirement that the verdict of the jury as to the “before” and “after” value must be within the range of the opinion testimony, including the opinion of the landowner. We construe the opinion in Floersch to mean that a jury has a right to completely disregard the opinion testimony as to the “before” and “after” value and consider any evidence as to comparable sales and then use its own intellectual gymnastics in arriving at its “before” and “after” values in the case. From this summary of the Kansas cases, it is obvious that they are inconsistent and confusing. Tate holds that the jury is not bound by the opinion testimony of the witnesses, but may take into consideration facts testified to by the witnesses as to costs, quality, and condition of the property and arrive at a different opinion as to the value of the property before and after the taking. Roepke and May’s hold that the jury is bound by the opinion testimony in determining the “before” and “after” value of the property taken, but the damages awarded by the jury need not be within the range of testimony given by any one witness. Chapman holds that the landowner’s opinion testimony is sufficient to support a jury’s findings as to value before and after. Finally, Floersch holds that the jury is not bound by the opinion testimony as to the value before and after so long as there is other competent evidence in the case to establish value. In Floersch, the other competent evidence which the jury could rely on was evidence as to comparable sales. We have considered these various cases and hold in accordance with Roepke and May’s that in order for the verdict of a jury to be upheld, as being within the range of the evidence, its findings as to the “before” and “after” value of the property taken must fall within the range of the opinion testimony. The opinion testimony includes the opinion of the landowner as to value. We disapprove of the language in Urban Renewal Agency v. Tate, 196 Kan. 654, and overrule Kansas Power & Light Co. v. Floersch, 4 Kan. App. 2d 440, and the opinion affirming and adopting Floersch, 228 Kan. 468. The fact that evidence is presented of comparable sales and of the various factors set forth in-K.S.A. 26-513(d) does not authorize a jury to make a finding as to “before” and “after” values which is not within the range of the opinion evidence. That section states, without equivocation, that these various factors are not to be considered as separate items of damages, but are to be considered only as they affect the total compensation and damage under subsections (b) and (c). In this case, the record is clear that the verdict of the jury as to the value of the property after the taking in the amount of $695,000 was not within the range of the opinion testimony which was between $687,000 and $490,000. We, therefore, hold that the trial court properly granted a new trial to the landowners. We find the appellant’s first point on the appeal to be without merit. The second point raised by the condemnor on the appeal is that the trial court erred in sustaining the motion of the landowners to exclude evidence of three comparable sales offered by the condemnor. The date of taking was September 24, 1981. The three sales excluded by the trial court were made between July 1973 and June 1974, over seven years before the date of the taking. The question is whether the trial court abused its discretion in excluding the three sales. In a condemnation action an expert witness may testify as to the purchase price of a sale of neighboring land provided the evidence is relevant. State Highway Commission v. Lee, 207 Kan. 284, 485 P.2d 310 (1971). Comparable sales are admissible where the sale is bona fide, voluntary, not too remote in time, and if the property and surroundings are sufficiently similar to those on the date of the taking. State Highway Commission v. Lee, 207 Kan. at 291. Whether evidence regarding a prior sale of other property in the area is too remote in time is a question to be determined by the trial court in its sound discretion. Here the condemnor’s expert witnesses had more recent comparable sales in the area upon which to rely in expressing their opinions as to value. In this regard see City of Shawnee v. Webb, 236 Kan. 504, 694 P.2d 896 (1985). We hold the trial court did not abuse its discretion, in excluding evidence of the three sales which occurred over seven years prior to the date of the taking. The judgment of the district court is affirmed.	[ -16, -18, -79, -98, 74, -30, 106, -103, 65, -25, -76, 83, -119, -54, 5, 43, -10, 29, 84, 107, -58, -77, 87, -93, -106, -13, -5, -51, -101, 88, -28, -41, 78, 112, -53, 21, 6, -62, 68, 92, -50, 6, -87, 93, -56, 8, 62, 107, 50, 79, 21, -113, -9, 40, 24, -61, -24, 44, -5, -87, 17, -7, -94, 23, 91, 6, 17, 32, -104, 1, 72, 43, -104, 49, 0, -8, 119, -90, -106, 116, 7, -101, 76, 44, 103, 17, 92, -49, 104, -104, 14, 80, -123, -25, -110, 24, 66, 64, -106, -99, 116, 86, 7, -2, -25, 4, -33, 108, -121, -117, -78, -109, 79, 60, -118, 75, -21, -123, 18, 97, -51, -62, 94, 71, 50, -69, -97, -72 ]
The opinion of the court was delivered by Holmes, J.: James L. Chamberlain appeals from an order of the district court, in a proceeding pursuant to K.S.A. 60-1507, denying a new trial sought on the basis of ineffective assistance of counsel. Chamberlain was originally convicted of one count of murder (K.S.A. 21-3401) and one count of aggravated robbery (K.S.A. 21-3427). We refer to the memorandum decision of the trial court for a statement of the background of this case. “On April 1,1980, in Case # 79CR1802, the movant was convicted by a jury in the Shawnee County District Court, Division Three, of one count of first degree murder, pursuant to K.S.A. 21-3401, and one count of aggravated robbery, pursuant to K.S.A. 21-3427. On May 1, 1980, movant was sentenced to life for the count of first degree murder and to a term of not less than fifteen years nor more than life for the count of aggravated robbery, said sentences to run consecutive, one after the other. The Court, having found the offense was committed with a gun, sentenced movant under the provisions of K.S.A. 21-4618. Movant is presently incarcerated at the Kansas State Penitentiary at Lansing, serving said sentence. “On June 2, 1980, appointed trial counsel, Robert Nelson, filed a notice of appeal in the District Court of Shawnee County, Kansas. On that same date, an order for transcript was filed, the Court having found movant indigent. “Trial counsel did not follow through with the direct appeal to the Supreme Court and, on February 3, 1983, movant by and through his attorney, Camille Nohe, filed a motion to docket the appeal out of time with the Supreme Court of the State of Kansas. On March 15, 1983, appellant’s motion to docket appeal out of time was granted. Argument was had before the Supreme Court limited to the issue of competency of counsel and, on December 2, 1983, movant’s appeal was dismissed [State v. Chamberlain, 234 Kan. 422, 672 P.2d 604 (1983)] and he was directed to raise the issue of ineffective assistance of counsel before the trial court under the provisions of K.S.A. 60-1507. “This case was then filed pursuant to the direction of the Supreme Court and on February 3, 1984, a hearing was had in the Third Division of the District Court, evidentiary in nature, wherein the movant herein appeared in person and by Camille Nohe, his attorney, and the State of Kansas appeared by Gene M. dander, District Attorney. The movant herein did not testify in connection with said hearing, the sole evidence being from Mr. Robert Nelson who was the court appointed attorney for James Chamberlain in the proceedings heretofore mentioned. “The basic allegations of movant herein are that his counsel was so ineffective and incompetent that movant’s Sixth Amendment rights were violated. Movant specifically alleges that his counsel at trial was incompetent and ineffective by (1) failing to challenge the legality of defendant’s warrantless arrest in his own home, absent exigent circumstances, (2) failing to file motion to suppress incriminating evidence seized ‘incident’ to that arrest, to-wit the gun, (3) failing to request a Jackson v. Denno hearing prior to trial, (4) failing to move to suppress defendant’s confession, and (5) failing to object to the introduction into evidence of various prejudicial exhibits, and defendant[’s] counsel’s repeated elicitation of evidence which was prejudicial and incriminating.” On the evening of November 6, 1979, Larry Bauman was working at his part-time job as a clerk in a liquor store in Topeka. Shortly before closing time he was robbed and shot in the head with a .357 magnum revolver. He died a short time later at Stormont-Vail Hospital from the gunshot which lacerated his brain. The ensuing police investigation led officers to suspect Chamberlain and on the night of November 12, 1979, several officers of the Topeka Police Department went to his home and arrested him. The officers did not have a warrant for his arrest and there were no exigent circumstances which would justify a warrantless arrest. At the time of the arrest a .357 magnum revolver was recovered which later was determined to be the murder weapon. Additional facts will be presented in connection with the various allegations of ineffective assistance of counsel. We have often adopted the standards governing claims of ineffective assistance of counsel, stated in Schoonover v. State, 2 Kan. App. 2d 481, Syl. ¶¶ 2-4, 582 P.2d 292, rev. denied 225 Kan. 845 (1978): “The right to effective assistance of counsel presupposes that counsel will be competent and capable of conducting a genuine defense on behalf of the accused. While the law does not guarantee the assistance of the most brilliant and experienced counsel, it does require honest, loyal, genuine and faithful representation on the part of counsel, be he retained or appointed.” “Conduct of defense counsel which is so dishonest, incompetent or inadequate as to amount in practical effect to no counsel at all clearly violates a defendant’s Sixth Amendment right to counsel. However, conduct which amounts to a substantial deviation from that expected of a reasonably competent lawyer in the community, such that no lawyer of average ability would engage in it, and which causes the client’s conviction or otherwise works to the client’s substantial disadvantage, is also a deprivation of the constitutional guarantee of ‘effective’ counsel.” “In applying the foregoing standard to counsel’s performance, the effective assistance of counsel cannot be equated with the successful assistance of counsel. The adequacy of an attorney’s services on behalf of an accused must be gauged by the totality of his representation, not by fragmentary segments analyzed in isolated cells.” See State v. Kendig, 233 Kan. 890, 895-96, 666 P.2d 684 (1983); State v. Miesbauer, 232 Kan. 291, 654 P.2d 934 (1982); State v. Crossman, 229 Kan. 384, 624 P.2d 461 (1981); State v. Voiles, 226 Kan. 469, 470-71, 601 P.2d 1121 (1979). Although the Schoonover standards have become well-established in Kansas it was only recently that the United States Supreme Court had an opportunity to directly address a claim of “actual ineffectiveness” of counsel as applied to the trial of a case. Strickland v. Washington, 466 U.S__, 80 L.Ed.2d 674, 104 S.Ct. 2052 (1984). Our standards must now be viewed in the light of the decision in Washington rendered subsequent to the trial court’s decision. Washington pled guilty to three capital murder charges in Florida. In preparing for the sentencing hearing, appointed defense counsel spoke with Washington about his background but did not seek out character witnesses or request a psychiatric examination. Judging that it was advisable to rely solely on the plea colloquy for evidence as to defendant’s character and emotional state, counsel presented no further evidence on these matters at the sentencing hearing, thereby preventing the prosecution from cross-examining defendant and from presenting psychiatric evidence of its own. The attorney did not request a presentence report because it would have included defendant’s criminal history, undermining the claim of no significant prior criminal record. After the sentencing hearing the trial judge sentenced defendant to death on each of the three counts, finding numerous aggravating circumstances and no mitigating circumstances. Washington, 80 L.Ed.2d at 683-85. At the outset, Justice O’Connor, writing for the majority, stated that the Sixth Amendment requirement of effective assistance of counsel in a capital sentencing proceeding was the same as in the actual trial of the case. The court stated: “The Court has not elaborated on the meaning of the constitutional require ment of effective assistance in . . . cases . . . presenting claims of ‘actual ineffectiveness.’ In giving meaning to the requirement, however, we must take its purpose — to ensure a fair trial — as the guide. The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Washington, 80 L.Ed.2d at 692-93. The Court announced the following standard: “A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” Washington, 80 L.Ed.2d at 693. Under the first part of this two-pronged approach, a convicted defendant must show counsel’s representation fell below an objective standard of reasonableness. The critical inquiry is “whether counsel’s assistance was reasonable considering all the circumstances.” 80 L.Ed.2d at 694. However, in presenting evidence on this issue, a defendant must overcome a presumption counsel’s assistance was reasonable. “Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation omitted.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ [Citation omitted.] “Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct, A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Washington, 80 L.Ed.2d at 694-95. Turning to the second requirement, that defendant establish a reasonable probability the decision challenged would have been different had he received effective assistance, Justice O’Connor defined “reasonable probability” as “a probability sufficient to undermine confidence in the outcome.” Washington, 80 L.Ed.2d at 698. “When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt. . . . “In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.” Washington, 80 L.Ed.2d at 698-99. Concluding this analysis, the majority noted the principles outlined were not intended to establish mechanical rules. The ultimate focus in these cases is the fundamental fairness of the challenged proceeding; in each case “the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process . . . .” Washington, 80 L.Ed.2d at 699. The court made it clear the burden was upon the defendant to establish both requirements of the test and that failure to establish one would preclude any finding of ineffective assistance of counsel. Applying these principles to the facts of Washington, the Court concluded counsel’s strategic choice to rely on evidence already before the trial judge was “well within the range of professionally reasonable judgments,” and there was no reasonable probability the trial judge would have imposed a lighter sentence had counsel used the forgone evidence. Because the defendant failed to meet both elements of the test, the writ of habeas corpus was denied. 80 L.Ed.2d at 701-02. Comparing Strickland v. Washington with the Schoonover v. State standards of ineffective assistance of counsel reveals little conflict between the two. Where Schoonover required proof of counsel’s conduct substantially deviating from that expected of a reasonably competent lawyer in the community, Washington requires proof the conduct was not reasonable considering all the circumstances, with defendant required to overcome a strong presumption of reasonableness. Schoonover also required proof counsel’s conduct caused the client’s conviction or otherwise worked to the client’s “substantial disadvantage.” Washington now requires a defendant establish a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt. While the actual application of the standards from Schoonover as opposed to those of Washington would in all probability effect the same result in any given case, we deem it appropriate to now adopt the Washington holdings as the prevailing yardstick to be used in measuring the effectiveness of counsel under the Sixth Amendment. They may be stated as: First. The Sixth Amendment right to counsel is the right to the effective assistance of counsel, and the benchmark forjudging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Second: A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or setting aside of a death sentence requires that the defendant show, first, that counsel’s performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. (a) The proper standard for judging attorney performance is that of reasonably effective assistance, considering all the circumstances. When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel’s performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. (b) With regard to the required showing of prejudice, the proper standard requires the defendant to show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. In adopting the Washington two-pronged standard or test we do not abandon the standards which have been carefully developed in Schoonover and its progeny. While the Supreme Court in Washington refrained from adopting any “mechanical rules” to be utilized in considering a claim of ineffective assistance of counsel we are of the opinion that our standards enunciated in Schoonover and built upon in subsequent cases remain viable guidelines in the application of the Washington standard. With the foregoing standards and discussion from Washington before us, we now turn to the particular claims by Chamberlain that he did not receive effective assistance of counsel in his original trial. The decision of the trial court leading to this appeal was based upon the transcript and pleadings from the original trial, the testimony of defense counsel at the K.S.A. 60-1507 hearing and the briefs and arguments of counsel. We now have that same record before us. Appellant first attacks the failure of Robert Nelson, his defense counsel, to seek suppression of incriminating statements made to police shortly after his arrest. It is appellant’s contention that the arrest was illegal because the police forced their way into the home without a warrant and absent any exigent circumstances which would justify such an arrest. It is asserted the statement was therefore “fruit of the poisonous tree” and subject to suppression under the doctrine first enunciated in Wong Sun v. United States, 371 U.S. 471, 9 L.Ed.2d 441, 83 S.Ct. 407 (1963). A Jackson v. Denno hearing was conducted by the court during trial when it became obvious the State would ask that the statement be admitted in evidence. The court found that Chamberlain had been read his Miranda rights prior to the time the statement was taken and that the statement was freely, voluntarily and knowingly given. Nelson testified he had not sought suppression of the statement in a Jackson v. Denno hearing because his investigation disclosed the police officers were admitted to the home voluntarily by Chamberlain’s mother, one of the owners of the property. Nelson had also determined from his client that the statement was voluntarily given with full knowledge of his rights. The evidence as to the admission of the police officers to the Chamberlain home is conflicting. One of the officers testified that after the police surrounded the house where plaintiff lived, they knocked on the front door and Chamberlain’s mother voluntarily admitted them into the house. However, another detective testified that once Mrs. Chamberlain answered the door, “I ordered her to step out of the way, and we walked into the house.” Mrs. Chamberlain’s testimony is inconclusive although it is clear that she at no time actually denied the officers access to the property. When defense counsel has no sound basis to believe that a pretrial motion would have merit and has no reasonable evidence or argument upon which to base such a motion the failure to make it certainly cannot be equated with ineffective assistance of counsel. Appellant also contends counsel should have kept the gun from being admitted in evidence on the same theory that his arrest was illegal and the gun was also “fruit of the poisonous tree.” When Chamberlain was arrested in or near his bedroom the officers asked if he had a weapon and he disclosed the location of the gun to them. It was then seized by the officers and what has been said in connection with a possible suppression of the statement applies equally to the gun. In addition, the trial judge at the close of the Jackson v. Denno hearing ruled that the seizure of the weapon did not violate Chamberlain’s constitutional rights. Appellant’s other contentions are directed toward the investigation, preparation and trial conducted on his behalf by Nelson. It would serve no useful purpose to prolong this opinion with a detailed discussion of each complaint voiced by appellant. Suffice it to say that, with the benefit of hindsight and nothing before us but a cold record, it is clear that some of Nelson’s preparations and trial strategy left a great deal to be desired. However, when applying hindsight to any trial record it is doubtful that many lawyers could boast of having conducted the trial exactly as they might have wished. As pointed out in Schoonover and Washington, the determination of the effectiveness of counsel cannot be based upon hindsight but must be viewed from counsel’s perspective at the time of trial. The learned trial judge who presided at the original criminal trial and at the K.S.A. 60-1507 proceeding stated in his memorandum decision: “In subjecting Mr. Nelson’s representation of the movant herein [to the standards above] and looking at the totality of the circumstances, the Court is of the opinion that Mr. Nelson’s representation did not fall below the standards of the Schoonover and Schrurn cases. “The Court will also note that Mr. Nelson testified at the hearing of this matter and his testimony was unrefuted that he spent in excess of 50 hours interviewing witnesses and conferring with the client; 26 hours [on] the preliminary hearing, research and preparation; 2.6 hours on pretrial motions which primarily surrounded the compentency to stand trial issue; 28 additional hours in trial preparation and 6 1/2 days in the trial of this case. It also should be noted that Mr. Nelson has practiced law in this community for almost twenty years prior to his recent suspension, which incidentally, has nothing whatsoever to do with this proceeding. Mr. Nelson, over the years, has tried many criminal cases before all the Judges of the Third Judicial District and has been appointed many times by the Courts of this District to represent indigent defendants in criminal cases. Mr. Nelson’s unrefuted testimony in this matter is that he conferred with his client in great detail about the matters raised by counsel for movant and that his decisions as to what to do and what not to do were based upon his own judgment and that of his client after conferring. “This Court must also note that the evidence in this case against Mr. Chamberlain is overwhelming, bolstered by his own statement which the Court in a Jackson v. Denno hearing found to be voluntarily made after the defendant had been advised of his constitutional rights under the Miranda decision. In this case we have a brutal murder committed by defendant of a young man who was shot to death lying on the floor of a liquor store having done everything requested of him by his assailant, only to be shot as a parting gesture for the sole reason of not leaving any witness to the crime. The Court believes strongly that this defendant received a fair trial, that Mr. Nelson’s representation was not below standard[s] set forth in the above mentioned cases.” (Emphasis added.) We concur in the trial court’s assessment of the representation afforded to the appellant. It is a rule of this court that in an action asserting ineffective assistance of counsel, the trial court must have an opportunity to assess the performance of counsel before an appellate court will consider the matter. Much deference and reliance must be placed upon the wisdom and determination of the trial judge who saw all of the proceedings first hand as they happened. We have carefully reviewed the record from both the trial and the K.S.A. 60-1507 proceeding and we cannot say that appellant has met his burden under the standards of Washington and the guidelines of Schoonover. Ignoring the evidence which appellant contends might have been inadmissible and the trial strategy utilized, we cannot find there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The judgment is affirmed.	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The opinion of the court was delivered by Prager, J.: This is an action brought by the sellers against the buyer to recover damages for breach of an oral contract for the sale and purchase of 285 steers. The plaintiffs are J. Martin Quaney and his sons, William E. Quaney, and James Daniel Quaney, farmers and cattlemen residing in Osage County. The defendant, Lowell Tobyne, is a farmer-rancher and feed lot operator who resides in Washington County, Kansas. In this action, plaintiffs sought to recover the difference between the price which defendant agreed to pay for the cattle and the price received for the cattle when sold by plaintiffs after defendant Tobyne refused to take delivery of the cattle on the agreed delivery date. The factual circumstances in the case are not greatly in dispute and essentially are as follows: The plaintiff, Martin Quaney, and the defendant, Lowell Tobyne, had both been engaged in the buying and raising of cattle for many years prior to the transaction between them, although they were not personally acquainted. Approximately two or three days prior to August 15, 1982, Tobyne telephoned Quaney and inquired if he had any cattle for sale. Quaney told him that he would have some cattle for sale and described the type of cattle, the approximate weight, the number of cattle for sale, the location of the cattle and the price that he was willing to accept for the cattle. Quaney and Tobyne then arranged to meet the following Sunday at the pasture where the cattle were kept in Wabaunsee County. On Sunday, August 15, 1982, Martin Quaney and Tobyne met at the pasture as agreed. Also present were defendant’s son, Dwight Tohyne, and Delmar Haufler, a friend of the Quaneys. The parties drove into a large pasture where 260 cattle were kept where they viewed the cattle. There was a smaller pasture where 25 cattle were kept, but the road to this pasture was in poor condition due to a recent rain, and Tobyne declined Quaney’s offer to drive to that pasture to view the other cattle. From the testimony, it appears that Tobyne told Quaney that he was satisfied with the cattle and if the other 25 were of the same type as the 260 he had observed then he did not need to see them. According to plaintiffs’ evidence, while the parties were in the pasture, Quaney and Tobyne agreed that Tobyne would purchase 285 cattle at a price of 650 per pound. The weight of the cattle to be used as a basis to determine the price was to be determined when the cattle were taken out of the pasture and weighed at either the St. Marys sales barn, or the Manhattan sales barn, whichever one Tobyne would use. No weight shrinkage would be allowed. Tobyne agreed that he would contact the manager of the pasture, Oliver Hess, in order to arrange for rounding up and loading the cattle for which Tobyne agreed to be responsible. Tobyne was to load the cattle on or before October 1, 1982, since Quaney’s lease on the pasture expired October 10, 1982. There was testimony that this was a typical sales transaction involving cattle and, when the parties left that day, there was nothing further to be decided regarding the sale of the cattle to Tobyne. Tobyne agreed to send an $8,000 down payment to Quaney at a later date, since he did not have the money with him that day. Tobyne also stated that he would prepare and deliver to Quaney a written contract at the same time he sent the down payment. The written agreement and down payment were never delivered by Tobyne. At the trial, there was testimony of another cattleman that the customary practice in buying and selling cattle in the area'was by oral agreement. Plaintiffs’ evidence was undisputed that, at the time the oral contract was made, several other persons were interested in buying plaintiffs’ cattle. Martin Quaney testified that, on August 15, 1982, he told Tobyne that there were other persons interested in purchasing the cattle, if Tobyne did not want them. According to Quaney, defendant assured him that he would take the cattle. On that same date, when Martin Quaney arrived home from the pasture following his meeting with Tobyne, there was a cattle buyer awaiting him who was interested in the cattle. Quaney told him that the 285 steers had been sold so they discussed the sale of other cattle. Quaney testified that cattle prices inci'eased for a period during August and September but plaintiffs did not try to sell the cattle to anyone else. On August 19, 1982, Martin Quaney was involved in an automobile accident and suffered severe injuries to his back and neck. As a result of those injuries he was hospitalized until the early part of September, 1982. The operation of the Quaney farm and ranch was left in the hands of his two sons, Williaxn E. Quaney and James Daniel Quaney. Several times dui'ing the later part of August and during the month of September, William E. Quaney and James Daniel Quaney contacted Tobyne by telephone and inquired about the down payment. Each time, Tobyne made some excuse why he had not delivered the down payment to them. On September 23, 1982, Martin Quaney talked to Tobyne who told him the same things he had told the two sons. In none of these conversations did Tobyne state that he was not buying the cattle or that other terms of agreement were necessary before he could buy the cattle. Oliver Hess, the manager of the pasture, testified that several days prior to September 23, 1982, Tobyne discussed with him the arrangements for Tobyne to pick up the cattle that he had bought from Quaney. According to Hess, Tobyne told him without equivocation that he had bought the cattle. On September 23, 1982, and again on September 30, 1982, Tobyne discussed with Hess the arrangements for rounding up and loading the Quaney cattle. Hess and Tobyne agreed that the date for loading the cattle would be October 2, 1982. Hess made written notes on these conversations on the dates they occurred. On October 1, 1982, Tobyne telephoned Martin Quaney and told him that he was not going to purchase the cattle. Tobyne never did tell Hess that he was not buying the cattle, and Hess was waiting at the pasture to load the cattle for Tobyne when Quaney notified Hess that Tobyne was not going to buy plaintiffs’ cattle. The Quaneys subsequently sold the cattle to another party but received only 59.50 per pound. The Quaneys then filed this action to recover their damages for breach of the oral contract. In response thereto, Tobyne denied in his answer the existence of an oral sales contract and raised as an affirmative defense the statute of frauds (K.S.A. 84-2-201). Essentially, it was defendant’s position that the parties had never had a meeting of the minds on the sale and purchase of the cattle, and that no binding contract was to come into existence until a formal, written agreement had been prepared and signed by both parties. Defendant maintained that he and the Quaneys were complete strangers, knew very little about each other, and first met face-to-face on August 15, 1982, the date plaintiffs claimed the contract for the sale of the cattle was made. The defendant filed a motion for summary judgment based upon the defense that the statute of frauds (K.S.A. 84-2-201) barred enforcement of the oral agreement, and, furthermore, that the doctrine of promissory estoppel was not applicable in the case. Defendant’s motion for summary judgment was denied by the trial court. The case was then tried by a jury which found in its special verdicts that the plaintiffs and defendant had entered into an oral contract for the purchase and sale of the cattle and that the terms of the contract were for the sale of 285 head of cattle (steers) at 650 per pound, with no allowance for shrinkage, with an $8,000 down payment and a written contract to be provided by defendant. The cattle were to be picked up on or before October 1, 1982, and the balance was due upon possession of the cattle. The jury also found that the doctrine of promissory estoppel, as explained in the instructions, should be used to enforce the oral agreement of the parties, and that the total amount of damages sustained by the plaintiffs was $16,826.45. Defendant’s motion for a new trial was thereafter denied, and he appealed. The sole point presented in the defendant’s brief is stated as follows: Whether the trial court erred in not applying the statute of frauds to bar the claim of the plaintiffs against the defendant where the evidence of the plaintiffs when viewed in a light most favorable to the plaintiffs does not allow the plaintiffs to avail themselves to the exception of promissory estoppel to the bar created by the statute of frauds. As we see it, there are two basic issues of law to be determined on the appeal: (1) Does the statute of frauds (K.S.A. 84-2-201) bar the plaintiffs from recovery on the oral contract in this case or is the exception set forth in subsection (3)(b) applicable to remove the bar of the statute? (2) If the exception is not applicable, does the doctrine of promissory estoppel apply so as to enable the plaintiffs to avoid the defense of the statute of frauds? We first consider the issue whether plaintiffs’ action on the oral sales contract is barred by the Statute of Frauds (K.S.A. 84-2-201) which provides as follows: “84-2-201. Formal requirements; statute of frauds. (1) Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the parly against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing. “(2) Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against such party unless written notice of objection to its contents is given within ten days after it is received. “(3) A contract which does not satisfy the requirements of subsection (1) but which is valid in other respects is enforceable “(a) if the goods are to be specially manufactured for the buyer and are not suitable for sale to others in the ordinary course of the seller’s business and the seller, before notice of repudiation is received and under circumstances which reasonably indicate that the goods are for the buyer, has made either a substantial beginning of their manufacture or commitments for their procurement; or “(b) if the party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract for sale was made, but the contract is not enforceable under this provision beyond the quantity of goods admitted; or “(c) with respect to goods for which payment has been made and accepted or which have been received and accepted (section 84-2-606).” (Emphasis supplied.) Under subsection (1) of the statute an oral contract for the sale of goods for the price of $500 or more is not enforceable unless one of the exceptions under subsection (3) is satisfied. It is agreed that the exceptions contained in subsection (3)(a) and (c) are not applicable, and that plaintiffs must rely solely on section (3)(b) in order to avoid the application of the statute. The issue of law presented is whether, on the record before us, the defendant, as the party against whom enforcement of the oral contract is sought, admitted in his pleadings, testimony, or otherwise in court that an oral contract for sale was made. This exception was held applicable in Wendling v. Puls, 227 Kan. 780, 610 P.2d 580 (1980), which like this case also involved an action for the breach of an oral contract for the purchase and sale of cattle. In Wendling, K.S.A. 84-2-201 was discussed and it was noted that all of the parties had frankly and openly admitted the existence of the contract during their oral testimony, with complete agreement on price, quantity of purchase, and date of delivery. In addition, the seller had served a written notice on the buyers containing the provisions of the contract to which the buyers offered neither written nor oral objections. In the case now before us, the plaintiffs/sellers did not serve such a notice on the defendant/buyer. So it is necessary that the record establish that the defendant/buyer made the admissions required under K.S.A. 84-2-201(3)(b). It also should be noted that K.S.A. 84-2-201 was set up as a defense to an oral contract in Miller v. Sirloin Stockade, 224 Kan. 32, 578 P.2d 247 (1978), which held that the exception provided for in subsection (3)(b) is applicable only if the admission is made by a party to the litigation or by an authorized agent of a party before the termination of his authority. A former employee of a corporation was held to be without authority to bind the corporation by “admissions” made during the taking of the former employee’s deposition. In the case now before us, we are required to consider the “admissions” made by the defendant, Lowell Tobyne, in the course of the litigation. This requires us to consider any admissions made in his pleadings, testimony, or otherwise in court to the effect that a contract for sale was made. In this case, the only admissions made by defendant were either in his deposition or in his testimony taken at the time of trial. Before taking up defendant’s admissions, we should first consider the principles of law involved in the construction and application of K.S.A. 84-2-201. There is an annotation on this subject in 88 A.L.R.3d 416, where cases from various jurisdictions are set forth discussing the purposes of the statute and the question as to what constitutes an admission that the contract for sale was made within the meaning of the statute. In its summary, the annotation indicates that the courts have found three reasons for the adoption of the statutory provision contained in K.S.A. 84-2-201(3)(b) excepting from the operation of the statute of frauds contracts whose existence has been admitted by the party against whom enforcement is sought. It has been stated by the courts that the purposes of the statute are (1) to provide that a party cannot admit the existence of an oral contract for the sale of goods and simultaneously claim the benefit of the statute of frauds, (2) to prevent the statute of frauds from becoming an aid to fraud, and (3) to expand the exceptions to the nonenforceability of oral contracts under the statute of frauds. In order to come within the terms of the exceptions stated in 84-2-201(3)(b), a statement must in fact constitute an admission,' and the courts in several cases have expressly considered what constitutes an admission that a contract for sale was made within the meaning of the statutory exception. A problem has arisen in this regard where a party admits the essential terms of the oral contract but denies that a final agreement or meeting of the minds was ever actually consummated. In several cases it has been held that the testimony of the party against whom enforcement of an oral contract for the sale of goods is sought, which, while denying the existence of the oral contract, admits facts which as a matter of law establish the existence of the contract, constitutes an admission within the meaning of the statute. A leading case in this area is Lewis v. Hughes, 276 Md. 247, 346 A.2d 231 (1975), which held that the testimony of a buyer of a mobile home that he did not consider that there was a meeting of the minds between himself and the seller concerning the sale of the mobile home, although he had agreed to the purchase price, constituted an objective manifestation of unconditional assent to the offer which when admitted at the trial was sufficient to satisfy the statutory exception. The court in Lewis adopted the following as a statement of the law: “Statute of frauds is satisfied . . . when the party denying the existence of the contract and relying on the statute takes the stand and, without admitting explicitly that a contract was made, testifies to facts which as a matter of law establish that a contract was formed.” pp. 256-57. In Dangerfield v. Markel, 222 N.W.2d 373 (N. D. 1974), the opinion discusses the required standard of proof in a case involving an admission of the existence of an oral contract in court. The case involved a contract between a potato buyer and farmer for the purchase of potatoes. The buyer alleged that the farmer breached the contract by failing to deliver the potatoes as contracted for. In considering admissions made by the seller, the court stated that the parties against whom an oral contract is sought to be enforced need not admit there is a contract or admit the contract in the exact terms claimed. The court concluded that, if a fair consideration of the party’s testimony, and its implications under the circumstances established by the record, establishes the claimed agreement, it will be enforced. Another case is Cargill Inc., Commodity Marketing Div. v. Hale, 537 S.W.2d 667 (Mo. App. 1976), where the defendant in a breach of contract action involving the sale and purchase of soybeans on cross-examination at the trial answered, “Yes, sir” to plaintiffs cross-examination question, “Didn’t you agree to sell these beans to [plaintiff s manager] over the phone for a certain price?”, even though the seller denied that there had been a meeting of the minds. The question of what constitutes an admission under U.C.C. § 2-201(3)(b) is discussed in 2 Anderson, Uniform Commercial Code § 2-201:216, pp. 116-17 (3rd ed. 1982), where the author states: “There is an admission for the purpose of UCC § 2-201(3) when there is a manifestation that fairly communicates the concept that the party has admitted the existence of the contract. It is not necessary that there be an express declaration that the party ‘admits’ the making of an oral ‘contract.’ It is sufficient that his words or conduct reasonably lead to that conclusion. “When a párty admits facts the legal consequence of which is that there is a contract, it is to be concluded that there has been an admission of the existence of the contract. The fact that the party does not appreciate or understand that the subsidiary facts admitted by him have the effect of creating a contract or that he is unwilling to state that they did does not negate the fact that a ‘contract’ has been admitted. On this basis, it has been held that there is an ‘admission’ so as to take an oral contract out of the statute of frauds when the party denying the existence of a contract and pleading the statute of frauds testifies to facts from which it can be concluded that a contract had been formed, even though he does not expressly admit that a contract was formed.” 2 Williston on Sales § 14-9, p. 306 (4th ed. 1974), in discussing the admissions exception, states: “The mere fact that a party has, by pleading, testimony or otherwise in court admitted to the existence of a contract does not mean that it is an admission of every individual term of the contract between the parties. Of course, if the party against whom enforcement is sought admits to the terms of the contracts seriatum, it would be extremely difficult to visualize a situation where the trier of the facts would not find that an oral agreement between the parties had not in fact taken place.” In Decatur Cooperative Association v. Urban, 219 Kan. 171, 547 P.2d 323 (1976), the court referred to the requirements of K.S.A. 84-2-201 and stated that the statute of frauds was enacted to prevent fraud and injustice, not to foster or encourage it, and a court of equity will not ordinarily permit its use as a shield to protect fraud or to enable one to take advantage of his own wrong. The court then proceeded to hold that a party to an oral contract may be equitably estopped to assert the statute of frauds as a defense. The important point is that the court construed the statute of frauds liberally to achieve a result which was equitable and just under the circumstances of the case rather than take a strict approach to the application of the statute. We also have the relevant consideration of what constitutes an “admission” that a contract for sale was made. It is a well recognized rule that the terms of an oral contract and the consent of the parties may be proved by their acts and the attending circumstances, as well as by the words they have employed. The acts and conduct of a party are frequently as expressive as spoken or wiltten statements, and they may be proved in some instances under the principles applicable to admissions. 29 Am. Jur. 2d, Evidence § 623, p. 677. For example, in Allen v. Bowling, 173 Kan. 485, 249 P.2d 679 (1952), it was held that the existence of an oral agreement and its terms may be ascertained from a combination of written communications and the acts of the parties. In this regard, we also note 31A C.J.S., Evidence § 291 and the cases cited, which declare that an admission may be made by conduct, such as conduct which may fairly be interpreted as an admission against interest and conduct inconsistent with the party’s contentions in the litigation. We have considered all of these various authorities and the pzinciples of law established thez'eby and have concluded that the exception to the statute of frauds contained in K.S.A. 84-2-201(3)(b) is satisfied when the party who has denied the existence of an oral contract in reliance on the statute takes the stand and, without admitting explicitly that a contract was made, testifies as to his statements or his actions which establish the terms of the oral contract claimed by the opposing party. It is not necessary that there be an express declaration in which the party admits the making of the oral contract. It is sufficient if his words or admitted conduct reasonably lead to that conclusion. Turning to the testimony of the buyer, Lowell Tobyne, in the record now before us, the question to be detezmined is whether there are sufficient admissions as to the existence and terms of the oral contract to satisfy the statutory exception in K.S.A. 84-2-201(3)(b). As noted above, the defendant in one portion of his testimony denied that there had been a final meeting of the minds and further testified that there was to be no binding contract until the contract was reduced to writing. On cross-examination, however, the defendant testified that he telephoned plaintiff Martin Quaney and asked him if he had any cattle for sale, and Quaney replied that he did. He was told that all of the cattle were steers and that Quaney was asking a price of 650 per pound. At Quaney’s suggestion, he met Quaney at the pasture on August 15,1982, and drove around and looked at the cattle in the large pasture. He stated that he was satisfied with the quality and type of those cattle. He was told that Quaney had cattle in another pasture and Quaney offered to take him down to the other pasture. He admitted that he did not need to see the other cattle if they were similar to the cattle he had just looked at. He was told by Quaney that they were the same type of cattle that he had just seen. Defendant stated that he agreed on a 650 per pound price for the cattle on that day. He agreed with Quaney that he would load the cattle out around October 1, 1982. He agreed that the cattle would be weighed at either St. Marys or Manhattan, Kansas. It was discussed that Mr. Hess would round up the cattle and deliver the same to the defendant for loading. A down payment of $8,000 was agreeable with both parties. He mentioned to Quaney that he was going to put together a written agreement and bring it down to Quaney. From this testimony, it seems clear to us that the defendant admitted in his testimony all of the terms of the agreement for sale and purchase of the cattle as claimed by the plaintiffs. To summarize, in his testimony the defendant testified as to the following terms of the contract: (1) He was satisfied with the quality and type of cattle — 285 steers were to be purchased. (2) He agreed on a price of 650 per pound. (3) He agreed that the cattle would be weighed at St. Marys or Manhattan to establish their weight. (4) A loading date for the cattle around October 1, 1982, was agreed upon. (5) He agreed on a down payment of $8,000. In addition to this, the defendant testified as to conduct which gave recognition to the finality and binding effect of the agreement. After Martin Quaney was injured in the automobile accident on August 19, 1982, the defendant had several telephone conversations with William E. Quaney and James Daniel Quaney. He admitted that in none of these conversations did he state that he was not buying the cattle or indicate that an agreement had not been consummated. As late as September 23, and September 30, 1982, the defendant discussed with Oliver Hess, the manager of the pasture leased to plaintiffs where the cattle were kept, arrangements for the defendant to pick up the cattle. It was agreed that October 2, 1982, was to be the date for the loading of the cattle. On October 1, 1982, the defendant called Martin Quaney and told him that he would not be able to purchase the cattle. From our analysis of this testimony, we have concluded that, although the defendant did not openly and frankly admit to an oral agreement, his testimony sufficiently establishes that an oral agreement existed. The defendant acknowledged all the princi pal terms of the agreement. The parties had agreed on a price per pound, type and quality of the cattle, place of loading, place of weighing, and the down payment. Although the defendant never paid the down payment or drew up a written contract as he volunteered to do, we hold that his testimony contained admissions of his' statements and actions sufficient to satisfy the requirements of K.S.A. 84-2-201(3)(b). Since the defendant raised several defenses to the contract, the issues were submitted to the jury and the jury found that the plaintiff and defendant had entered into an oral contract for the purchase and sale of the cattle. There was substantial competent evidence to support that finding. In view of the admissions which the defendant made in his testimony at the trial, the defense of the statute of frauds was removed from the case in accordance with K.S.A. 84-2-201(3)(b). In view of our holding on this issue, the question as to the applicability of the doctrine of promissory estoppel as a defense to the bar created by the statute of frauds becomes moot. We note, however, the holding of this court in Decatur Cooperative Association v. Urban, 219 Kan. 171. That case involved an action for breach of an oral contract for the sale and purchase of wheat. In that case promissory estoppel was successfully asserted to preclude the statute of frauds as a defense to an oral contract for the sale of goods. On the basis of the record before us, we find that the issues were properly formulated by court and counsel and submitted to the jury which resolved all issues in favor of the plaintiffs in accordance with established legal principles. The judgment of the district court is affirmed.	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The opinion of the court was delivered by Holmes, J.: Dwayne Mertha Davis appeals from his conviction by a jury of one count of rape (K.S.A. 21-3502), one count of aggravated sodomy (K.S.A. 21-3506), and one count of aggravated battery (K.S.A. 21-3414). He was acquitted of one count of aggravated robbery (K.S.A. 21-3427). On December 2,1982, Davis and Robert Fields were drinking together at Fields’ apartment in Wyandotte County when an argument developed. Fields’ landlady, Mrs. D., attempted to stop the argument and was temporarily successful. As the three continued drinking together a second argument broke out between the men. Davis fought with Fields and stabbed him with a knife. He then threatened Mrs. D. with the knife and forced her to engage in two acts of sexual intercourse and two acts of sodomy. Due to his wounded condition, Fields was unable to come to the aid of Mrs. D. When Mrs. D. returned to her own living quarters, Davis followed her. However, the police were contacted and upon arrival arrested Davis and rendered aid to Fields. At trial Davis denied engaging in sexual intercourse with Mrs. D. although he acknowledged one act of oral sodomy which he claimed was consensual. He also claimed that Fields had attacked him with the knife for no apparent reason and that at all times during the fight he was acting in self-defense. The State called two police officers who testified in detail about defendant’s belligerent and abusive behavior during his arrest. Davis hurled a number of obscenities and racial slurs at the officers, physically resisted arrest, and had to be overcome by the officers. Before trial, defense counsel made an oral motion in limine to exclude this evidence asserting it was irrelevant and prejudicial. The trial court denied the motion and in his first point on appeal, Davis claims the ruling was error. Acts done or declarations made before, during or after the happening of the principal fact may be admissible as part of the res gestae where they are so closely connected with it as to form in reality a part of the occurrence. Evidence that does not constitute a portion of the crimes charged is admissible if there are some natural, necessary or logical connections between the evidence and the inference or result which it is designed to establish. State v. Gray, 235 Kan. 632, Syl. ¶ 2, 681 P.2d 669 (1984). The evidence was clearly admissible. Davis was argumentative, violent and abusive to his victims as well as to the officers. He also contended prior to trial that he was intoxicated at the time. Evidence of defendant’s behavior at the time of his arrest was clearly relevant to some of the issues in the case. No error is shown. Defendant next claims the trial court erred in permitting police officers to testify about the victims’ out-of-court statements before the victims themselves took the stand. It is asserted that the evidence was hearsay and that defendant was denied his constitutional right to confront the witnesses against him. The two officers called to the stand at the beginning of the State’s case gave general testimony regarding statements made by Mrs. D. and Fields at the time of defendant’s arrest. However, both victims were subsequently called to the stand as State witnesses and testified at length about the events in question. They were also subjected to intense cross-examination by defense counsel. Notwithstanding, defendant asserts it was reversible error to allow the officers’ testimony prior to that of the victims. Defendant relies upon State v. Fisher, 222 Kan. 76, Syl. ¶ 5, 563 P.2d 1012 (1977), where we held: “In a criminal proceeding, the declarant must testify at trial before hearsay evidence of his out-of-court statements may be admitted under K.S.A. 60-460(a).” The reliance upon Fisher is misplaced. In Fisher the defendant was convicted of indecent liberties with a child and aggravated sodomy involving his eleven-year-old stepdaughter, Carla. At trial Carla repudiated her prior accusations against her stepfather and said her previous statements to police officers were lies. It appeared defendant’s wife was going to do the same thing. In a hearing in chambers the trial judge found Carla and her mother were turncoat witnesses and allowed officers to testify as to their prior statements in which they accused the defendant of the acts charged. Mrs. Fisher never did take the witness stand. In its opinion this court stated: “We have no dispute with the district court’s finding that Carla was a turncoat witness. The court observed some thirty minutes of Carla’s direct examination; Carla was evasive, hostile and denied the truthfulness of her prior statements which were the basis for the charge against the accused. The state’s tender of evidence in chambers was to the effect that Carla’s prior statements were in complete contradiction to her testimony at trial and at the preliminary hearing. This was the traditional turncoat witness situation, and the court did not err in ruling Carla’s prior hearsay statements were admissible as substantive evidence under 60-460(a). See, State v. Lott, 207 Kan. 602, 485 P.2d 1314; S.Gard, Kansas Code of Civil Procedure 466 (1963). “However, it was an abuse of discretion for the district court to allow hearsay statements of Mrs. Fisher to be admitted under 60-460(a) based on a finding she was a turncoat witness. Mrs. Fisher was available to testify at trial, but was never called. The state’s tender of proof was that the testimony Mrs. Fisher would give at trial would be completely contradictory to her prior statements. This was an insufficient basis for permitting the use of the 60-460(a) exception. It was an abuse of discretion for the district court to find Mrs. Fisher was a turncoat witness without her first testifying contrary to her prior statements.” Fisher, 222 Kan. at 79. In reaching the conclusion that the defendant had been denied his right to confront Mrs. Fisher, the court made a thorough examination of the Sixth Amendment’s guarantee of the right of confrontation and stated: “Our conclusion is different with respect to the hearsay statements of Mrs. Fisher. For the reasons set forth in the foregoing portions of the opinion, we hold that under the circumstances of this case, admission of Mrs. Fisher’s hearsay statements violated the appellant’s right to confrontation. In our view, for the declarant to be subject to full and effective cross-examination by the defendant, he must be called to testify by the state. “For the reasons of policy and fairness, and to ensure the right of confrontation is not abridged, we hold that in a criminal proceeding the declarant must testify at trial before hearsay evidence may be admitted under K.S.A. 60-460(a).” 222 Kan. at 82. (Emphasis added.) That ruling from Fisher, as set forth in Syl. ¶ 5, must be considered and applied in the light of the specific facts of that case. In Fisher the court made it clear that its ruling was based upon the facts of the case and that Mrs. Fisher was never called to testify. In the present case both victims were present and available to testify. Both actually testified and were subjected to extensive cross-examination. In Fisher, the court stated: “Whether a witness is actually cross-examined, the fact the defendant has an opportunity to carry out such an inquiry satisfies the confrontation clause.” 222 Kan. at 82. While it may be better practice, if an orderly and understandable presentation of the case permits, to call the declarants prior to the admission of their out-of-court statements by other witnesses, the failure to do so when the declarants are available and actually testify does not violate the confrontation clause of the Sixth Amendment. No error is shown. The next issue is the refusal of the court to give a separate instruction on the defense of consent pursuant to PIK Crim. 2d 52.08. Defendant contends that his assertion Mrs. D. consented to oral sexual relations constitutes an affirmative defense. We do not agree. The trial court gave Instruction No. 9 on the elements of aggravated sodomy including “[t]hat the defendant had oral sexual relations with . . . [Mrs. D.], who was not a consenting adult of the opposite sex.” (Emphasis added.) In its Instruction No. 10 the court said that the burden was on the State to prove each element of the offense charged beyond a reasonable doubt. Both instructions followed PIK Crim. 2d. There is no doubt the general rule regarding instructions is that the trial court must instruct the jury on the law applicable to the theories of all parties where there is evidence to support the theory. State v. Williams, 235 Kan. 485, Syl. ¶ 6, 681 P.2d 660 (1984). However, evidence merely tending to refute or deny one of the elements of the crime does not necessarily constitute an affirmative defense entitled to a separate instruction. For examples of true affirmative defenses see Notes to PIK Crim. 2d 52.08. Here defendant’s evidence was an attempt to deny the element of non-consent which was fully covered in the other instructions given. No error is shown. The fourth issue concerns the trial court’s failure to instruct the jury on (a) lewd and lascivious behavior as a lesser included offense of rape and sodomy, and (b) simple battery as a lesser included offense of aggravated battery. Lewd and lascivious behavior in violation of K.S.A. 21-3508 consists of elements separate and distinct from the offense of aggravated sodomy, and is neither a lesser degree of aggravated sodomy nor a crime necessarily proved if aggravated sodomy is proved. State v. Robinson, Lloyd & Clark, 229 Kan. 301, Syl. ¶ 5, 624 P.2d 964 (1981); State v. Gregg, 226 Kan. 481, Syl. ¶ 2, 602 P.2d 85 (1979); State v. Crawford, 223 Kan. 127, 128, 573 P.2d 982 (1977), cert. denied 435 U.S. 930 (1978). The same is true as to the crime of rape. In contrast, simple battery is a lesser included offense of aggravated battery. However, the duty to instruct on lesser included crimes arises only when there is evidence upon which a defendant might reasonably be convicted of the lesser charge. State v. Royal, 234 Kan. 218, Syl. ¶ 4, 670 P.2d 1337 (1983). Davis’ testimony in this case was not that he committed simple battery, or any criminal act, in his contact with Mr. Fields. Davis denied cutting Fields, and stated he was acting only in self-defense after being attacked by Fields. Faced with the conflicting testimony, Davis was guilty of aggravated battery or no battery at all, and the jury would have had no basis for finding Davis guilty of simple battery. The trial court did not err in refusing the requested instructions on lesser included offenses. Next defendant asserts error in the failure of the trial court to declare a mistrial on the grounds of juror misconduct. The conduct complained of is based solely upon hearsay, speculation and conjecture. Even if true we doubt that it could be considered misconduct and in any event there has been absolutely no showing of any prejudice to the defendant. State v. Fenton, 228 Kan. 658, Syl. ¶ 1, 620 P.2d 813 (1980). The last two issues raised on appeal concern the sufficiency of the evidence and claimed error in the trial court’s denial of defendant’s motion for judgment of acquittal. We have carefully examined the record and find both points to be without merit. The judgment is affirmed.	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The opinion of the court was delivered by Lockett, J.: This is an appeal by the State of Kansas in a criminal prosecution from an order of the district court dismissing two counts of a four-count indictment. This case was before the Supreme Court once before on a State’s appeal but was dismissed because this court lacked jurisdiction under K.S.A. 22-3602(b). The facts of the case, as set forth in State v. Freeman, 234 Kan. 278, 670 P.2d 1365 (1983) (Freeman I), are as follows: On June 19, 1982, a pickup truck driven by the defendant, James D. Freeman, II, was involved in a two-vehicle collision at the junction of Highways 81 and 24 in Cloud County. A passenger in the other vehicle, Edward Strecker, subsequently died. The State alleges Mr. Strecker died as a result of injuries received in the accident and that the accident was caused by the defendant. Defendant was originally charged in a complaint and information with one count of involuntary manslaughter (K.S.A. 1983 Supp. 21-3404). Immediately following the preliminary hearing the State issued three new misdemeanor complaints against defendant and filed an amended information. The amended information charged the defendant with involuntary manslaughter in count one, vehicular homicide in count two, failure to yield the right-of-way in count three and speeding in count four. On December 6, 1982, defendant was arraigned on all four counts. Defendant pleaded not guilty to counts one, two and four and guilty to count three, the charge of failing to yield the right-of-way. On December 22, 1982, the defendant filed a motion to dismiss counts one and two on the grounds that further prosecution of those two counts would be duplicitous in violation of K.S.A. 1983 Supp. 21-3107(2)(d), and barred by the double jeopardy provisions of K.S.A. 21-3108(2)(a). After extensive argument on January 3, 1983, the court sustained defendant’s motion on the basis of double jeopardy and dismissed counts one and two. Without dismissing the remaining speeding charge, the State filed this appeal from the dismissal of counts one and two. In Freeman I, we found that there was no jurisdiction to hear the appeal. We held that there is no statutory authority for the State to appeal from the dismissal in a criminal case of some of the counts of a multiple-count complaint, information or indictment while the case remains pending before the district court on a portion of the remaining counts which have not been dismissed nor finally resolved. Our decision was received by the Clerk of the District Court of Cloud County on December 7, 1983. On December 9, 1983, the State filed a motion to dismiss the remaining count of speeding and to set the date for sentencing on the third count of failure to yield the right-of-way to which Freeman had previously pleaded. Freeman was ordered to appear on January 3, 1984, for sentencing. Freeman appeared by counsel and was fined $50.00 and costs. On January 30, 1984, the State filed its Notice of Appeal pursuant to K.S.A. 22-3602(b)(3). On February 28, 1984, the defendant filed a motion for involuntary dismissal of the State’s appeal based on lack of jurisdiction. The right to appeal in a criminal case is strictly statutory and absent statutory authority there is no right to appeal. The statutes authorizing appeals by the prosecution in criminal actions are found at K.S.A. 22-3602 and 22-3603. K.S.A. 22-3602(b) provides that appeals may be taken by the prosecution as follows: “(1) From an order dismissing a complaint, information or indictment; “(2) From an order arresting judgment; “(3) Upon a question reserved.” The Kansas Code of Criminal Procedure does not state a time limit for appeals by the prosecution under K.S.A. 22-3602. Freeman, therefore, argues that the rules of civil procedure apply, and the State failed to file an appeal within 30 days from the entry of judgment. The defendant argues that the ruling of the trial court dismissing counts one and two was a final judgment; the appeal of such had to be within 30 days of the dismissal, and the State’s failure to perfect the appeal within that time now bars this appeal. K.S.A. 22-3608 provides the time limits for appeal by a defendant. There is no similar provision as to time limits for the prosecution to appeal under K.S.A. 22-3602(b). K.S.A. 22-3606 provides that: “Except as otherwise provided by statute or rule of the supreme court, the statutes and rules governing procedure on appeals to an appellate court in civil cases shall apply to and govern appeals to an appellate court in criminal cases.” Since there is no time limit delineated in K.S.A. 22-3602(b) for the prosecution to appeal, the time specified under the rules of civil procedure apply. Therefore, an appeal by the State must be taken within 30 days from the entry of final judgment as required by the rules of civil procedure. K.S.A. 60-2103. When was the judgment in Freeman I final? In City of Topeka v. Martin, 3 Kan. App. 2d 105, 590 P.2d 106 (1979), the Court of Appeals held that a sentence must be imposed or the imposition of sentence suspended in order to have a final appealable judgment. The court said: “An order finding a defendant guilty is not an appealable order and may not be appealed until the defendant is sentenced or the imposition of sentence is suspended pursuant to 22-3608. State v. Woodbury, 133 Kan. 1, 298 Pac. 794 (1931); Roberts v. State, 197 Kan. 687, 689, 421 P.2d 48 (1966); 21 Am. Jur. 2d, Criminal Law § 525, p. 509; 24 C.J.S., Criminal Law §§ 1556, 1648, 1649, 1653.” 3 Kan. App. 2d at 105. In State v. Lottman, 6 Kan. App. 2d 741, 633 P.2d 1178 (1981), the defendant appealed from a conviction by a jury of involuntary manslaughter. Lottman moved to suspend imposition of sentence pending appeal. The motion was granted, and he appealed. The Court of Appeals dismissed the appeal for lack of jurisdiction, citing Martin. The court said the appeal was interlocutory since no sentence had been imposed, and it had no jurisdiction to hear the case. In Freeman I, this court characterized the State’s appeal from the dismissal of two counts of the multiple count complaint as an interlocutory appeal, since the case had not been terminated in district court. We found that since final orders had not been entered, the district court still had juris diction over the case, and as long as the district court had jurisdiction, an appellate court had no jurisdiction. The journal entry granting Freeman’s motion for dismissal of the counts one and two was filed January 10,1983. If the January 10 dismissal had been the final judgment in the case, the State’s appeal was required to be filed within 30 days. The State filed its appeal in Freeman I on January 11, 1983. We, however, deemed there was no final judgment and refused to hear the appeal. Since there was no final judgment, then, the time for appeal had not commenced. Therefore, counts one and two, which had been dismissed by the district court, were not severable for the purposes of the first appeal. Freeman cannot now be allowed to sever those counts to avoid the State’s second appeal. Final judgment occurred when Freeman was sentenced January 3, 1984. On January 30, 1984, within the 30 days to appeal, the State timely filed its second Notice of Appeal. Freeman claims the State’s appeal is improper under K.S.A. 22-3602(b)(3), which allows appeal upon a question reserved by the prosecution. In State v. Crozier, 225 Kan. 120, 587 P.2d 331 (1978), the court stated that a question reserved must be one which calls for an answer which will aid in the correct and uniform administration of the criminal law. State v. Glaze, 200 Kan. 324, 436 P.2d 377 (1968). A question reserved by the State will not be entertained on appeal merely to demonstrate errors of a trial court in rulings adverse to the State. State v. V. F. W. Post No. 3722, 215 Kan. 693, 695, 527 P.2d 1020 (1974); State v. Chittenden, 212 Kan. 178, 510 P.2d 152 (1973). No formal procedural steps are required by K.S.A. 22-3602(b) to appeal on a question reserved. All that is necessary for the State to do to reserve a question for presentation on appeal to the Supreme Court is to make proper objections or exceptions at the time the order complained of is made or the action objected to is taken. The rule was reiterated in State v. Busse, 231 Kan. 108, 642 P.2d 972 (1982), where the appellee asserted that the issue was not one which should be properly considered as a question reserved. We did not agree. The issue before the court was whether a defendant in a criminal action may voluntarily waive the statutory protection of meeting a witness face to face provided by K.S.A. 60-460(c). We found the matter to be of sufficient statewide importance in the prosecution of criminal cases to warrant review as a question properly reserved under K.S.A. 22-3602(b)(3). State v. Busse, 231 Kan. 108. There is no reason to believe that the question in the present case is not of statewide interest. The issue of whether a defendant can plead to a lesser charge contained in a complaint or information and then claim double jeopardy to avoid trial on a greater charge is relevant to a large number of criminal prosecutions. Freeman claims this question has already been considered by this court and cites three cases for such proposition: (1) Jarrell v. State, 212 Kan. 171, 510 P.2d 127 (1973), which dealt with duplicitous charges. The court found three of the counts against the defendant duplicitous and vacated two of them. (2) State v. Garnes, 229 Kan. 368, 624 P.2d 448 (1981), which dealt with multiplicity. The court again found one of the charges against the defendant multiplicitous and set it aside. (3) State v. Becker, 1 Kan. App. 2d 671, 573 P.2d 1096 (1977), which dealt with double jeopardy. Becker pleaded guilty to traffic charges in district court. The county attorney had also filed other charges in district court stemming from the same incident. The court said the defendant was subjected to double jeopardy and reversed the decision of the trial court. None of these cases cited, however, consider this specific issue raised by the State in this appeal. Freeman also claims he is entitled to discharge under K.S.A. 22-3402(2), since he was not brought to trial within one hundred eighty (180) days after arraignment on the charge and since no delay resulted from his application or fault. This issue was partially addressed in State v. Grimes, 229 Kan. 143, 662 P.2d 143 (1981), in which Grimes claimed the State failed to comply with the Kansas speedy trial statute. (K.S.A. 22-3402.) Grimes was found guilty of aggravated battery. He, then, filed a motion for a new trial, which was granted. The State filed an appeal from the order granting a new trial. Four months after the State filed its notice of appeal, the court dismissed the appeal because of lack of jurisdiction. Grimes then claimed the State’s failure to bring him to trial within 180 days after a new trial was granted violated the speedy trial statute. The court agreed and the charges against Grimes were dismissed. Freeman, however, is in a different situation. He pleaded guilty to the charge of failure to yield the right-of-way at his arraignment. There was no need for a trial on that charge and the other counts were dismissed. K.S.A. 22-3402 requires only that a defendant be brought to trial within 180 days after arraignment. Freeman had his opportunity for a trial. Instead, he pleaded guilty. While the statute requires a speedy trial, there is no language in the statute that requires sentencing within 180 days after a plea or a finding of guilty. K.S.A. 22-3424(3) merely requires that the sentencing court impose sentence without “unreasonable delay.” This state has held in a number of cases that a defendant waives his right to a speedy trial by a plea of guilty in the district court. Witt v. State, 197 Kan. 363, 416 P.2d 717 (1966); Cooper v. State, 196 Kan. 421, 411 P.2d 652 (1966); Moore v. Hand, 187 Kan. 260, 356 P.2d 809 (1960). Kansas has not directly considered whether the right to a speedy trial applies to sentencing, but other states have said that it does not. In Com. v. Hill, 267 Pa. Super. 264, 406 A.2d 796 (1979), the court found that a delay of eleven months from conclusion of the defendant’s trial to sentencing did not deprive the defendant of the right to a speedy trial. In Easley v. State, 564 S.W.2d 742 (Tex. Crim. App. 1978), the court said the right to a speedy trial applies to neither delays in sentencing nor the appellate process. In State v. Mick, 229 Kan. 157, 621 P.2d 1006 (1981), the court said: “The case of Barker v. Wingo, 407 U.S. 514, 532, 33 L.Ed.2d 101, 92 S.Ct. 2182 (1972), sets forth the interests of an accused which the constitutional right to speedy trial is designed to protect. This right is designed to prevent oppressive pretrial incarceration, to minimize anxiety and concern of the accused, and to limit the possibility the defense of the accused will be impaired.” 229 Kan. at 159. None of these factors are present after a defendant has pleaded guilty and is awaiting sentencing. Freeman cannot claim a denial of speedy trial. A delay of sentencing from a defendant’s plea or from a finding of guilty after a trial does not deprive a defendant of the right to a speedy trial. Freeman argues the State’s charges against him were duplicitous and, having been placed in double jeopardy because the charges are duplicitous, he is entitled to dismissal of all untried charges. The terms “duplicitous” and “multiplicitous” have often been treated as synonymous. “Duplicity” in a criminal pleading is the joining of two or moi'e distinct and separate offenses in a single count in a complaint or information. “Multiplicity” in a criminal pleading is the charging of a single offense in several counts of a complaint or information. Freeman actually argues the charges are multiplicitous. The double jeopardy clause of the Constitution of the United States protects against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 53 L.Ed.2d 187, 97 S.Ct. 2221 (1977). The language of section 10 of the Bill of Rights of the Constitution of Kansas is very similar to the language contained in the Fifth Amendment of the Constitution of the United States. Both provide in effect that no person shall be twice placed in jeopardy for the same offense. The language of the Fifth Amendment guarantees no greater protection to an accused than does section 10 of the Bill of Rights of the Constitution of Kansas. Therefore, the three underlying protections contained in the double jeopardy clause of the Constitution of the United States are contained in section 10 of the Bill of Rights of the Kansas Constitution. In order to implement and define the constitutional guarantees of the double jeopardy clause, the Kansas legislature enacted two statutes: (1) K.S.A. 1983 Supp. 21-3107, multiple prosecutions for the same act, and (2) K.S.A. 21-3108, effect of former prosecution. K.S.A. 1983 Supp. 21-3107 defines the right of the prosecution to charge more than one offense based on the same act and to convict of an included offense not specifically charged. It formulates the limitations upon unfair multiplicity of convictions and prosecutions. K.S.A. 21-3108 attempts to cover the complex problems of former jeopardy. K.S.A. 1983 Supp. 21-3107 provides statutory authority where criminal conduct of a defendant, although consisting of a single transaction, may result in a multiple violation of the criminal code, for which the defendant may be severally prosecuted. State v. Pencek, 224 Kan. 725, 585 P.2d 1052 (1978). The prosecution may not split a single offense into separate parts where there is a single wrongful act which does not furnish the basis for more than one criminal prosecution. The test concerning whether a single transaction may constitute two separate and distinct offenses is whether the same evidence is required to sustain each charge. If not, the fact that both charges relate to and grow out of the same transaction does not create a single offense where two distinct offenses are defined by statute. State v. Chears, 231 Kan. 161, 643 P.2d 154 (1982). The same test is used in determining whether offenses charged in a complaint or information constitute lesser included offenses and are multi plicitous under 21-3107 or in determining whether a prosecution is barred by a former prosecution for a crime arising out of the same conduct under 21-3108. State v. Mourning, 233 Kan. 678, 664 P.2d 857 (1983). The fact that an accused is charged with multiplicitous crimes is not in and of itself a violation of the double jeopardy clause. The clause merely prevents a defendant from being punished more than once for the same crime. In Arnold v. Wyrick, 646 F.2d 1225 (8th Cir. 1981), the defendant was charged with both first-degree robbery and armed criminal action. On appeal, he contended that since first-degree robbery was a lesser included offense of armed criminal action, charging him with both placed him in double jeopardy. The court disagreed. Although the double jeopardy clause forbids prosecution for the greater offense after conviction of the lesser offense, Illinois v. Vitale, 447 U.S. 410, 65 L.Ed.2d 228, 100 S.Ct. 2260 (1980), it is not infringed by merely charging both offenses in a single indictment where no multiple punishment results. See United States v. Wilson, 420 U.S. 332, 43 L.Ed.2d 232, 95 S.Ct. 1013 (1975); North Carolina v. Pearce, 395 U.S. 711, 23 L.Ed.2d 656, 89 S.Ct. 2072 (1969). Arnold was convicted only of the lesser included offense and punished only once. He alleged no prejudice from the mere joinder of the counts in the indictment. His double jeopardy claim was without merit. The United States Supreme Court reached the same conclusion in Brown v. Ohio, 432 U.S. 161. The court said the double jeopardy clause protects an accused against a second prosecution for the same offense after acquittal or after conviction. The clause protects against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711. Where consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense. See Gore v. United States, 357 U.S. 386,2 L.Ed.2d 1405, 78 S.Ct. 1280 (1958); Bell v. United States, 349 U.S. 81, 99 L.Ed. 905, 75 S.Ct. 620 (1955); Ex Parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1874). The defendant’s claim that he was placed in jeopardy because the State’s information was multiplicitous is without merit. The defendant argues, however, that having pleaded guilty to an included crime, he cannot be convicted of a greater crime. K.S.A. 1983 Supp. 21-3107(2) provides that: “Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following: “(a) A lesser degree of the same crime; “(b) an attempt to commit the crime charged; “(c) an attempt to commit a lesser degree of the crime charged; or “(d) a crime necessarily proved if the crime charged were proved.” This issue was considered by the United States Supreme Court in Ohio v. Johnson, 467 U.S. _, 81 L.Ed.2d 425, 104 S.Ct. 2536 (1984). The defendant Johnson was indicted by an Ohio grand jury for four offenses, ranging from murder to grand theft. Johnson offered to plead guilty to charges of involuntary manslaughter and grand theft, but pleaded not guilty to charges of murder and aggravated robbery. Over the State’s objection, the trial court accepted the “guilty” pleas to the lesser offenses and then granted respondent’s motion to dismiss the two most serious charges on the ground that because of his guilty pleas, further prosecution on the more serious offenses was barred by the double jeopardy prohibitions of the Fifth and Fourteenth Amendments. The Ohio courts “reasoned that since state law permitted conviction on only one of the charges, acceptance of respondent’s guilty plea to the charge of theft prevented conviction for the charge of aggravated robbery. The crime of involuntary manslaughter was held to be distinguishable from the offense of murder only by the mental states required to commit each offense, but that in any one killing, an offender could only be convicted of involuntary manslaughter or murder, but not both crimes.” 81 L.Ed.2d at 432. The defendant also argued that further prosecution of the counts which were dismissed would violate the double jeopardy prohibition against multiple prosecutions. The court noted that the State was not prohibited from charging the defendant with greater and lesser included offenses and prosecuting those offenses in a single trial. The court said: “No interest of respondent protected by the Double Jeopardy Clause is implicated by continuing prosecution on the remaining charges brought in the indictment. Here respondent offered only to resolve part of the charges against him, while the State objected to disposing of any of the counts against respondent without a trial. Respondent has not been exposed to conviction on the charges to which he pleaded not guilty, nor has the State had the opportunity to marshal its evidence and resources more than once or to hone its presentation of its case through a trial. The acceptance of a guilty plea to lesser included offenses while charges on the greater offenses remain pending, moreover, has none of the implications of an ‘implied acquittal’ which results from a verdict convicting a defendant on lesser included offenses rendered by a jury charged to consider both greater and lesser included offenses. Cf. Price v Georgia, 398 US 323, 329, 26 L Ed 2d 300, 90 S Ct 1757 (1970); Green v United States, 355 US 184, 191, 2 L Ed 2d 199, 78 S Ct 221, 77 Ohio L Abs 202, 61 ALR2d 1119 (1957). There simply has been none of the governmental overreaching that double jeopardy is supposed to prevent. On the other hand, ending prosecution now would deny the state its right to one full and fair opportunity to convict those who have violated its laws. Arizona v Washington, 434 US 497, 509, 54 L Ed 2d 717, 98 S Ct 824 (1978).” Ohio v. Johnson, 81 L.Ed.2d at 435. The Supreme Court, in reversing the Ohio Supreme Court and remanding for further proceedings, noted that: “Notwithstanding the trial court’s acceptance of respondent’s guilty pleas, respondent should not be entitled to use the Double Jeopardy Clause as a sword to prevent the State from completing its prosecution on the remaining charges.” Ohio v. Johnson, 81 L.Ed.2d at 435. The United States Supreme Court held that the double jeopardy clause does not prohibit the State from continuing its prosecution of the defendant on the charges of murder and aggravated robbery. The court said: “In contrast to the double jeopardy protection against multiple trials, the final component of double jeopardy — protection against cumulative punishments — is designed to ensure that the sentencing discretion of courts is confined to the limits established by the legislature. Because the substantive power to prescribe crimes and determine punishments is vested with the legislature, United States v Wiltberger, 5 Wheat 76, 93, 5 L Ed 37 (1820), the question under the Double Jeopardy Clause whether punishments are ‘multiple’ is essentially one of legislative intent, see Missouri v. Hunter, 459 US 359, 368, 74 L Ed 2d 535, 103 S Ct 673 (1983). But where a defendant is retried following conviction, the Clause’s third protection ensures that after a subsequent conviction a defendant receives credit for time already served. North Carolina v. Pearce, supra, at 718, 23 L Ed 2d 656, 89 S Ct 2072. “We accept, as we must, the Ohio Supreme Court’s determination that the Ohio legislature did not intend cumulative punishment for the two pairs of crimes involved here. But before respondent can ever be punished for the offenses of murder and aggravated robbery he will first have to be found guilty of those offenses. The trial court’s dismissal of these more serious charges did more than simply prevent the imposition of cumulative punishments; it halted completely the proceedings that ultimately would have led to a verdict of guilt or innocence on these more serious charges. Presumably the trial court, in the event of a guilty verdict on the more serious offenses, will have to confront the question of cumulative punishments as a matter of state law, but because of that court’s ruling preventing even the trial of the more serious offenses that stage of the prosecution was never reached. While the Double Jeopardy Clause may protect a defendant against cumulative punishments for convictions on the same offense, the Clause does not prohibit the State from prosecuting respondent for such multiple offenses in a single prosecution.” Ohio v. Johnson, 81 L.Ed.2d at 433-34. Freeman has attempted to do the same thing as Johnson did in Ohio, to use the double jeopardy clause to prevent the State from completing its prosecution on the greater charges. The State is not precluded by the Constitutions of the United States and the State of Kansas from continuing its prosecution on the involuntary manslaughter and vehicular homicide charges against Freeman. In addition, Freeman claims even if the Constitutions of the United States and the State of Kansas do not prevent the State from continuing its prosecution of the charges remaining after his plea of guilty, K.S.A. 1983 Supp. 21-3107 and K.S.A. 21-3108 prevented further prosecution. In State v. Becker, 1 Kan. App. 2d 671, the defendant appealed from a conviction for aggravated assault on a law enforcement officer. As a result of a high speed chase, the defendant had been charged with 17 misdemeanor counts in the county court. When the defendant requested a jury trial, these charges were dismissed and 15 of the counts, including one for driving left of center, were refiled in the district court. A week later, the defendant was charged in a separate case with aggravated assault on a law enforcement officer, based on the same incident for which the defendant had been charged with driving left of center. The defendant pleaded guilty to a number of counts in the first case, including the driving left of center charge. At trial, the defendant was found guilty of aggravated assault on a law enforcement officer and was subsequently sentenced for that offense as well. On appeal of the aggravated assault conviction, the defendant argued that being placed on trial on a charge based on the same conduct as the driving left of center charge was double jeopardy. The Court of Appeals agreed, finding that the same conduct was the basis of two separate prosecutions. In the assault charge, the driving left of center was the threat or attempt to do bodily harm — the overt act under the particular circumstances. Proof of the assault charge would have supported and included the traffic charge. Nothing was needed to be proven in the traffic count which was not necessary in the felony charge. The evidence in the latter would have supported conviction of the former. Thus, defendant could not be convicted of both charges and the latter prosecution was voided. The defendant in State v. Fisher, 233 Kan. 29, 661 P.2d 791 (1983), was stopped for speeding by a trooper of the Kansas Highway Patrol. The defendant was issued citations for exceeding the speed limit and failing to produce and surrender his daily log for inspection. Later, the county attorney filed a second case charging the defendant with disorderly conduct, obstructing legal process, and two counts of battery of a law enforcement officer. The defendant pleaded to the speeding and log book charges and fines were imposed. He then moved to dismiss the criminal charges on the grounds that the traffic charges and the criminal charges all grew out of the same acts and transactions; that a trial on the criminal charges would require a re-examination of some of the issues of fact determined in the traffic case; and that the criminal charges could have been included along with the traffic charges in a single complaint. This court said that three elements must be present to bar a subsequent prosecution under K.S.A. 21-3108. First, the prior prosecution must have resulted in a conviction or an acquittal; second, evidence of the present crime must have been introduced in the prior prosecution; and third, the charge in the second prosecution must have been one which could have been charged as an additional count in the prior case. 233 Kan. at 32. The Fisher court said that while the first and third elements were present in the case, the second element of the statute, the introduction of evidence of the present crime in the prior prosecution, was wholly absent from the record. The pleas to the traffic charges did not establish or substantially prove the criminal charges pending against the defendant. The case was distinguishable from Becker in that in Becker exactly the same conduct was the basis of two separate prosecutions. The criminal charges in Fisher were separate and distinct from the speeding and log book charges, and were, therefore, not barred by the double jeopardy provisions of the Kansas Constitution. The Fisher court determined the earlier version of K.S.A. 21-3108, K.S.A. 62-1449 (Corrick), was intended to supplement the existing law upon the subject of jeopardy. Jeopardy applied only where there is a trial and evidence of other offenses is admitted. Though the statutory language had been changed in K.S.A. 21-3108 and “prosecution” substituted for “trial,” the operative fact is still the evidence admitted in the former proceeding. State v. Fisher, 233 Kan. 29. Freeman is distinguishable from both Becker and Fisher. Unlike Becker and Fisher, who were both charged in two separate complaints based upon the same transaction, Freeman was charged with several counts involving the same transaction in a single complaint. Both Becker and Fisher, after pleading guilty to the charges in one complaint, could attempt to claim former jeopardy barred prosecution in the second untried complaint arising out of the same transaction. K.S.A. 21-3108 bars the prosecution of an individual who has been formerly prosecuted for the same crime, based upon the same facts. Under that statute, for a second prosecution to be barred, it is essential that the second prosecution be for the same act and crime both in law and fact and that the defendant could have been convicted upon the first charge. Questions of double jeopardy arise only when a second prosecution is sought on a subsequent complaint or information following a conviction or acquittal on an earlier complaint or information. K.S.A. 21-3108 does not bar prosecution by the State on any of the crimes alleged in the amended information against Freeman. The purpose of a complaint or information is to inform the accused of the particular offense or offenses with which the defendant is charged and must defend against at time of trial. K.S.A. 1983 Supp. 21-3107(1) states which crimes may be alleged in a complaint or information by the State and how the offense must be alleged in the charging instrument. Upon prosecution the accused may be convicted of either a crime charged in a complaint or information or an included crime, but not both. K.S.A. 1983 Supp. 21-3107(2). Freeman claims his plea to an “included crime” charged in the amended information precluded further prosecution by the State under the statute. When revising the criminal code, the legislature combined three former criminal procedure statutes, G.S. 1949, 62-1022, 62-1023, and 62-1024, into one statute, K.S.A. 1983 Supp. 21-3107. What was the intent of the legislature in combining the three statutes when it enacted the revised criminal code in 1969? In determining the legislative intent, courts are not limited to a mere consideration of the language employed but may properly look into the historical background of the enactment, the circumstances attending its passage, the purposes to be accomplished and the effect the statute may have under various constructions suggested. In re Estate of Reed, 233 Kan. 531, 664 P.2d 824, cert. denied 464 U.S. 978 (1983). Therefore, we must look at the subject matter of the three prior statutes incorporated into K.S.A. 1983 Supp. 21-3107 to determine the legislative intent. G.S. 1949, 62-1022 allowed a jury to find a defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto, or of an attempt to commit the offense. G.S. 1949, 62-1023 provided that upon a trial of an indictment for a felony, the defendant could be found guilty of any other felony or misdemeanor included in the charged crime. Finally, G.S. 1949, 62-1024 allowed joinder of counts for murder and manslaughter and, at trial, the defendant could be convicted of either offense. It is clear that K.S.A. 1983 Supp. 21-3107 was intended to incorporate the former law, and by its language applies only where there is a trial and evidence of the included offenses is admitted. The statutory language of 21-3107 was changed by the legislature and the word “prosecution” substituted for “trial.” The fundamental rule of statutory construction, to which all others are subordinate, is that the purpose and intent of the legislature governs when that intent can be ascertained from the statute. Our legislature never intended that an accused’s plea of guilty to one count of a multi-count complaint or information would immediately allow the defendant to raise a double jeopardy bar to continued prosecution on any remaining counts that are greater or included offenses of the charge to which a defendant pleaded. The acceptance by the trial court of a plea of guilty to a lesser or an included offense while charges on the greater offense remain pending has none of the implications of an implied acquittal which results from a verdict convicting a defendant on a lesser included offense rendered by the judge or jury charged to consider greater, lesser and included offenses. It was the intent of the legislature when it enacted 21-3107 that a defendant be subject to trial on a complaint or information on charges to which he has not pleaded guilty. The legislature never intended to deny the State the opportunity to present its case on the untried charges to the trier of fact. The defendant’s final claim is without merit. Freeman should be allowed to withdraw his plea of guilty to the charge to which he pleaded, failure to yield the right-of-way, if he so desires. The district court is reversed. The case is remanded for trial on all untried counts of the State’s amended information. Prager, J., concurs in the result.	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The opinion of the court was delivered by McFarland, J.: National Collegiate Realty Corporation filed a tax grievance application with the Kansas Board of Tax Appeals seeking exemption from ad valorem taxation for 1980,1981, 1982 and future years, on certain improved real estate situated in Johnson County. The property is occupied by and used as the national headquarters of the National Collegiate Athletic Association (NCAA) and the association was allowed to join the proceedings as a party in interest. Exemption is sought under K.S.A. 1983 Supp. 79-201 Second and article 11, § 1, of the Kansas Constitution on the basis the subject property is used exclusively for educational purposes. The Board of Tax Appeals (BTA), in a divided decision, denied the exemption concluding the property was not being used exclusively for educational purposes. On appeal, the district court held: (1) The BTA order was arbitrary, capricious and not supported by substantial competent evidence; and (2) the subject property was used exclusively for educational purposes and, hence, entitled to the requested exemption. The Board of County Commissioners of Johnson County, Kansas, has perfected its appeal to this court and seeks reversal of the district court’s decision and affirmance of the order of the BTA. The BTA made 17 findings of fact in its order and these were adopted by the district court. They are as follows: “1. The Board has jurisdiction over the subject matter and the parties to this proceeding for the tax years 1980, 1981 and 1982, pursuant to K.S.A. 79-213. “2. The subject matter of this tax exemption proceeding is real property and the improvements located thereon situated at Nall Avenue at 63rd Street, City of Mission, Johnson County, Kansas containing 3.36 acres more or less, said legal description contained in Key No. KF2512093016 of the Johnson County Appraiser’s office. The building itself is a three-story structure with a parking lot on the South side with an exit onto 63rd Street. The entire building is occupied by the NCAA’s executive director and his staff which is charged with carrying out the purposes and fundamental policies of the NCAA. Each floor of the building contains offices. Publishing facilities are also located on the second floor. There is a lunchroom on the lower level for employee use. The building is used exclusively as an administrative office building to carry out NCAA’s purposes as set out in the constitution of the NCAA. “3. The National Collegiate Athletic Association by and through the National Collegiate Realty Corporation seeks ad valorem tax exemption on this property for the years 1980, 1981,1982 and future years; and seeks refund of all taxes paid for the year 1980 and each year thereafter. The applicant asserts the real property is exempt from taxation under Article 2, Chapter 79, Kansas Statutes Annotated and Article 11, Section 1 of the Kansas Constitution on the basis that the property is used exclusively for educational purposes. “4. The sole issue in this case is whether the subject real property is used exclusively for educational purposes within the meaning of Kansas law. “5. The National Collegiate Realty Corporation was incorporated on June 25, 1970, to hold title to property, collect income therefor, and turn over the entire amount thereof, less expenses, to the National Collegiate Athletic Association. The NCRC is a Kansas ‘for profit’ corporation wholly owned by the NCAA. “6. The National Collegiate Athletic Association is exempt from federal income tax pursuant to Section 501(c)(3) of the Internal Revenue Code. “7. The National Collegiate Realty Corporation is exempt from federal income tax pursuant to Section 501(c)(2) of the Internal Revenue Code. “8. The National Collegiate Athletic Association and the National Collegiate Realty Corporation have been granted exemption from Kansas income tax to the extent that they are exempt from federal income tax. “9. Until August 1, 1979, a part of the building on the property for which exemption is sought was rented as office space to a non-NCAA entity. During this time, the National Collegiate Realty Corporation did not seek to exempt the property. Since that date the building on the subject property has been solely occupied by NCAA. “10. The NCAA is a voluntary association of 780 educational institutions, organized and operated to provide rules and regulations pertaining to intercollegiate support programs. A summary of the NCAA functions revealed, in general terms, that it promotes and develops inter-collegiate sports, establishes rules for approximately 12 different sports (to include enforcement and sanctions against those members who violate the rules), and to hold championship games in approximately 71 divisions. “11. The formation of the NCAA was traced to one particular problem — the need for rules to curb violence in inter-collegiate football at the commencement of this century. Thus, in its beginning the NCAA’s stated objective was to maintain college activities ‘on an ethical plane in keeping the dignity and high purposes of education.’ The growth of the NCAA beyond its primary work of salvaging football and structuring a formal organization has, indeed, been spectacular. From its humble beginnings and rule-making pertaining to one sport, the organization, and its responsibilities, continued to grow and, in 1973, it was organizationally and procedurally revised. Currently, some of its more important organizational purposes are in the area 1) enforcement, 2) championships, 3) education, 4) broadcasting, 5) rule making and 6) faculty control and eligibility standards. Of these areas, broadcasting has grown into a multi-million dollar income-generator for the organization. The NCAA’s testimony was that education is the most important facet of the organization. The NCAA is an organization composed primarily of educators. While the NCAA membership enumerate academic requirements, the question as to whether it is exclusively an educational organization, (within the meaning of the Kansas ad valorem exemption laws) is not answered. “12. Most NCAA member schools have voting powers, but there are about 150 non-voting members, i.e. associate member colleges that do not qualify for active or allied memberships, various athletic conferences, associations and others interested in inter-college athletics. “13. The NCAA employs 93 persons at the national headquarters building, of which approximately 20% are engaged in the enforcement section, 5% in legislative activities, 18% in the championships department, 22% in media communications, 15% in the publishing department and 20% in general administration. Its annual payroll to these employees is approximately $2,000.000. “14. NCAA’s annual budget in 1980 was in excess of $20,000,000 and in 1981 was over $23,000,000. “15. Approximately 25% of NCAA’s revenue is spent on enforcements, 18% on championships, 22% on communication, 15% on publications, and 20% on general administration. “16. On April 10, 1972 the Department of Revenue of the State of Kansas exempted the NCAA’s building contract from sales and compensating tax with regard to building the national headquarters on the subject building. The Department of Revenue of the State of Kansas found that the property purchased was exempted from sales tax under K.S.A. 79-3606(d) and (e). “17. The NCAA gives the National Collegiate Realty Corporation however much money it needs to pay the expenses of maintaining the building. The National Collegiate Realty Corporation has no employees and is managed solely by the executive staff of the NCAA. There is no profit developed by the National [Collegiate] Realty Corporation.” Before proceeding further it should be noted that although the subject property and improvements are owned by the National Collegiate Realty Association, said corporation is wholly owned by NCAA and the premises are used exclusively as the national headquarters of the NCAA. The parties do not contend the manner of ownership should have any bearing on the outcome of this litigation and have consistently presented the issues on the basis of whether or not the use made of the property by the NCAA is exclusively for educational purposes. Article 11, § 1, of the Kansas Constitution provides in pertinent part: “All property used exclusively for state, county, municipal, literary, educational, scientific, religious, benevolent and charitable purposes, and all household goods and personal effects not used for the production of income, shall be exempted from property taxation.” K.S.A. 1983 Supp. 79-201 provides in part: “Property exempt from taxation; religious, educational, literary, scientific, benevolent or charitable purposes. The following described property, to the extent herein specified, shall be and is hereby exempt from all property or ad valorem taxes levied under the laws of the state of Kansas: “Second. All real property, and all tangible personal property, actually and regularly used exclusively for literary, educational, scientific, religious, benevolent or charitable purposes. This exemption shall not apply to such property, not actually used or occupied for the purposes set forth herein, nor to such property held or used as an investment even though the income or rentals received therefrom is used wholly for such literary, educational, scientific, religious, benevolent or charitable purposes.” Questions of whether or not specific properties were entitled to exemptions from ad valorem taxes under the foregoing constitutional and statutory provisions have been before this court many times. These decisions are remarkably consistent in stating the applicable law. The parties in the case before us essentially agree on the applicable law, the dispute being limited to the proper application of that law to the facts herein. Under such circumstances, citing and discussing each case wherein the general law in the field has been reiterated would add nothing to this opinion except bulk. Rather, we shall utilize Lutheran Home, Inc., v. Board of County Commissioners, 211 Kan. 270, 505 P.2d 1118 (1973), as a suitable representative of these genus of cases. In Lutheran Home the issue was whether or not property used as a nursing home was exempt from ad valorem taxation on the basis it was operated exclusively for charitable and benevolent purposes. Such purposes are granted exemption by K.S.A. 1983 Supp. 79-201 Second and article 11, § 1, of the Kansas Constitution as are properties used exclusively for educational purposes. As in the case before us, the facts in Lutheran Home were not disputed. In discussing the legal effect thereof, this court in Lutheran Home stated: “Since the facts are undisputed, the case presents a pure question of law as to whether or not Lutheran Home is entitled to an exemption on the nursing home property under Article 11, Section 1, of the Kansas Constitution and K.S.A. 79-201.” 211 Kan. at 275. The court in Lutheran Home then proceeded to summarize the basic principles of law which are applied in cases of claimed exemption from ad valorem taxation because of charitable use of the property as follows: “(1) Constitutional and statutory provisions exempting property from taxation are to be strictly construed. “(2) The burden of establishing exemption from taxation is on the one claiming it. “(3) The exemption from taxation depends solely upon the exclusive use made of the property and not upon the ownership or the character, charitable or otherwise, of the owner. “(4) The test of whether an enterprise is charitable for ad valorem tax purposes is whether its property is used exclusively to carry out a purpose recognized in law as charitable. “(5) The question is not whether the property is used partly or even largely for the purposes stated in the exemption provisions, but whether it is used exclusively for those purposes. [Citations omitted.] “(6) The phrase ‘used exclusively’ as contained in Section 1, Article 11, of the Kansas Constitution, was intended by the framers in the sense that the use made of property sought to be exempt from taxation, must be only, solely, and purely for the purposes stated in the Constitution, and without admission to participation in any other use.” 211 Kan. at 275-76. The court then stated: “The principles of law set forth above have generally been accepted and followed in all of our decisions. The major problem presented in this case and in other cases of claimed exemption is whether or not a particular use of property falls within the definition of a use for charitable or benevolent purposes.” 211 Kan. at 276. The balance of the opinion in Lutheran Home is devoted to determining what constitutes a charitable use and concluding the operation of the nursing home was not such a use. By substituting the word “educational” for “charitable” wherever the latter appears in the basic principles of law quoted from Lutheran Home, we have the law to be applied herein. Additionally, the fact that the subject property is utilized for administration rather than programs directly and immediately involved with the education of students is not, in itself, a bar to the requested exemption. See Trustees of The United Methodist Church v. Cogswell, 205 Kan. 847, 473 P.2d 1 (1970), wherein we held: “Property used for administrative offices essential to a well organized and efficient system for providing religious, charitable, benevolent or educational benefits to the citizens of Kansas, if used exclusively for religious, charitable, benevolent or educational purposes, falls within the constitutional provision exempting property ‘used exclusively for . . . literary, educational, scientific, religious, benevolent and charitable purposes.’ ” Syl. ¶ 9. We turn now to the matter of whether the NCAA’s use of the premises is exclusively for educational purposes. Little would be gained by attempting to develop a general definition of “educational purposes” applicable to such diverse needs as exemptions from zoning requirements, income taxation, obscenity laws, or ad valorem taxation. It is doubtful such a definition could be devised. The emphasis in our prior cases, and rightly so, has been placed on whether any activities in the use of the property were not exclusively for educational or other exempt purposes rather than any discussion of what uses were for exempt purposes. Illustrative thereof is Kansas State Teachers Ass’n v. Cushman, 186 Kan. 489, 351 P.2d 19 (1960), which case, incidentally, contains an excellent summary of prior cases involving claimed exemptions. In Cushman this court held that the KSTA’s headquarters building was not entitled to exemption as the building was: “used, in part at least, for the individual benefit of the teacher-member; consequently, it is not used directly, immediately, solely, and exclusively for educational purposes . . . 186 Kan. at 501. The NCAA is involved exclusively with regulating and promoting intercollegiate athletic events among its member colleges and universities. There is no serious contention that, generally speaking, physical education and sports programs in universities are not within proper “educational purposes” and we must conclude they are educational. This determination is consistent with the results reached by the courts that have attempted to define “education.” The court in Mtr. of Syracuse Univ., 59 Misc. 2d 684, 300 N.Y.S.2d 129 (1969), defined “educational” as embracing mental, moral and physical education. The court noted that the purpose of the statute exempting property used for educational purposes from property taxation “is to promote education, not academic degrees.” p. 689. (Emphasis supplied.) The court in Albach v. Odle, 531 F.2d 983 (10th Cir. 1976), described education as follows: “The educational process is a broad and comprehensive concept with a variable and indefinite meaning. It is not limited to classroom attendance but includes innumerable separate components, such as participation in athletic activity and membership in school clubs and social groups, which combine to provide an atmosphere of intellectual and moral advancement.” 531 F.2d at 985. See also Senate Report No. 2375, 81st Congress, 2nd Session, reprinted in 1950 U.S. Code Cong. Serv. 3053, 3082, which acknowledges “[a]thletic activities of schools are substantially related to their educational functions.” “Education” is defined as follows in 71 Am. Jur. 2d, State and Local Taxation § 382, p. 689: “ ‘Education,’ taken in its full sense, is a broad, comprehensive term, and may be particularly directed to mental, moral, or physical faculties, but in its broadest and best sense it embraces them all, and includes not merely the instructions received at school, college, or university, but the whole course of training— moral, intellectual, and physical. An educational institution has been defined as one which teaches and improves its pupils, that is, a school, seminary, college, or educational establishment.” In concluding the activities of the NCAA did not qualify for the exemption, the BTA stated: “The Board concludes that the NCAA is not an organization whose functions are exclusively educational. Certainly part of the function of the organization is to educate but just as certainly part of the function is to entertain and part of the function is to coordinate revenue raising activities for its members. The NCAA is a big business raising millions of dollars for the universities through its broadcasting activities. The United States District Court for the Western District of Oklahoma recently held that the NCAA’s control over college football makes the NCAA ‘a classic cartel.’ ” The federal case referred to in the BTA opinion, since the issuance of the order herein, has been the subject of an opinion of the United States Supreme Court. National Collegiate Athletic Association v. Board of Regents of the University of Oklahoma, 468 U.S__, 82 L.Ed.2d 70, 104 S.Ct. 2948 (1984). The issue in the federal court was whether the NCAA was unreasonably restraining trade in the televising of football games. The United States Supreme Court held against the NCAA, but in so doing acknowledged the value of the association’s role in regulating intercollegiate sports as follows: ‘.‘What the NCAA and its member institutions market in this case is competition itself — contests between competing institutions. Of course, this would be completely ineffective if there were no rules on which the competitors agreed to create and define the competition to be marketed. A myriad of rules affecting such matters as the size of the field, the number of players on a team, and the extent to which physical violence is to be encouraged or proscribed, all must be agreed upon, and all restrain the manner in which institutions compete. Moreover, the NCAA seeks to market a particular brand of football — college football. The identification of this ‘product’ with an academic tradition differentiates college football from and makes it more popular than professional sports to which it might otherwise be comparable, such as, for example, minor league baseball. In order to preserve the character and quality of the ‘product,’ athletes must not be paid, must be required to attend class, and the like. And the integrity of the ‘product’ cannot be preserved except by mutual agreement; if an institution adopted such restrictions unilaterally, its effectiveness as a competitor on the playing field might soon be destroyed. Thus, the NCAA plays a vital role in enabling college football to preserve its character, and as a result enables a product to be marketed which might otherwise be unavailable. In performing this role, its actions widen consumer choice — not only the choices available to sports fans but also those available to athletes — and hence can be viewed as procompetitive.” 82 L.Ed.2d at 84. The United States Supreme Court concluded: “The NCAA plays a critical role in the maintenance of a revered tradition of amateurism in college sports. There can be no question but that it needs ample latitude to play that role, or that the preservation of the student-athlete in higher education adds richness and diversity to intercollegiate athletics and is entirely consistent with the goals of the Sherman Act. But consistent with the Sherman Act, the role of the NCAA must be to preserve a tradition that might otherwise die; rules that restrict output are hardly consistent with this role. Today we hold only that the record supports the District Court’s conclusion that by curtailing output and blunting the ability of member institutions to respond to consumer preference, the NCAA has restricted rather than enhanced the place of intercollegiate athletics in the Nation’s life. Accordingly, the judgment of the Court of Appeals is affirmed.” 82 L.Ed.2d at 96. As pointed out by the dissent filed to the BTA order and by the district court herein in its memorandum decision, the BTA’s denial of the exemption rests largely on the size of the NCAA operation and the amount of money involved in its activities. Were the question before us the NCAA’s ability to pay ad valorem taxes, the answer would be a resounding, “Yes!” But such is not the issue. Sports are a legitimate part of collegiate education. Whether collegiate football and basketball, as they presently exist, are too large and too commercial are philosophical questions outside the issues of this action. No authority has been cited nor has our research disclosed any instance where a university’s football stadium or gymnasium has been held taxable on the basis such facilities are commercial or entertainment facilities. The present large size of the NCAA arises from the great popularity with the general public of collegiate football and basketball events. This popularity spawns a myriad of problems such as improper recruiting practices which only the NCAA can properly control. The reasoning applied by the BTA appears to be that at some point a collegiate sport may cease to be an educational activity and become merely entertainment. Presumably an intercolle giate sporting event such as archery which would be attended primarily by friends and relatives of the athlete is educational, but should the public interest in archery ignite with sufficient intensity, then the sport would become merely entertainment. The logic of this argument is difficult to follow. The NCAA is a truly unique organization. It has no real counterpart. The association’s nearest relative in Kansas is the Kansas State High School Activities Association, Inc. (KSHSAA). In Gilpin v. Kansas State High School Activities Ass’n, Inc., 377 F. Supp. 1233 (D. Kan. 1974), that association was described as follows: “The Kansas State High School Activities Association is a voluntary non-profit corporation created to regulate, supervise, promote, and develop interscholastic activities among the students of the secondary schools of the State of Kansas. It is not an agency of the state or of any local governmental unit. Nevertheless, it is sanctioned and regulated by state law pursuant to K.S.A. § 72-130 et seq.; a majority of its members are state public schools; its funds come from membership dues derived, in large part, from gate receipts generated by games between members, the majority of which are held in state-owned and state-supplied facilities; it exercises general control over all activities and contests between member schools; it has exclusive control over all state athletic meets; it is authorized to conduct investigations and to assess penalties against member schools for violations of its rules; the principals of each member school are responsible to it in all matters pertaining to inter-school activities; and it determines individual eligibility in all sports.” 377 F. Supp. at 1237. In terms of wealth, the KSHSAA is, indeed, a poor relation of the NCAA, but it is the rough equivalent for Kansas high school athletic programs to the NCAA’s role in national intercollegiate sports. The personal property owned by the KSHSAA has been held exempt by the BTA from ad valorem taxes. The order of the BTA granting the exemption on July 31, 1981 (Docket No. 2722-81-TX) states in part: “The Board . . . exempts the following described property . . . from ad valorem taxation for the reason that said motor vehicles are used by applicant exclusively for educational purposes in that they are regularly and exclusively for promoting and sponsoring activities in member junior and senior high schools in Kansas. K.S.A. 79-201 Second and Article 11, Section 1 of the Kansas Constitution authorizes exemption of property used for said purposes.” The real estate owned by the KSHSAA is also stated to have been held exempt from ad valorem taxes. The NCAA enjoyed a like exemption for its personal property by a BTA order issued in 1976 in Docket No. 1878-5, but the same was rescinded by the order on appeal herein. As previously noted, the facts herein are not in dispute, hence the issue before us is purely a question of law. Lutheran Home, Inc., v. Board of County Commissioners, 211 Kan. 270, 275. See also Sterling Drilling Co. v. Kansas Dept. of Revenue, 9 Kan. App. 2d 108, 673 P.2d 456 (1983), involving whether certain well drilling was exempt from sales taxes. In discussing the proper standard of review, the Court of Appeals stated: “We should note, preliminarily, the appropriate scope of judicial review. Two rules are applicable: 1. ‘A district court may not, on appeal, substitute its judgment for that of an administrative tribunal, but is restricted to considering whether, as a matter of law, (1) the tribunal acted fraudulently, arbitrarily or capriciously, (2) the administrative order is substantially supported by evidence, and (3) the tribunal’s action was within the scope of its authority.’ Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, Syl. ¶ 1, 436 P.2d 828 (1968). 2. ‘The interpretation of a statute is a question of law and it is the function of a court to interpret a statute to give it the effect intended by the legislature. “ ‘While the administrative interpretation of a statute should be given consideration and weight it does not follow that a court will adhere to the administrative ruling where the statute is clear and the administrative ruling is erroneous. The final construction of a statute rests within the courts.’ Amoco Production Co. v. Armold, Director of Taxation, 213 Kan. 636, Syl. ¶¶ 4 & 5, 518 P.2d 453 (1974). “In our view, this case turns upon the interpretation and application of section 79-3603(p), a matter of statutory construction covered by the second rule mentioned and clearly within the province of the trial court and this court to determine.” 9 Kan. App. 2d at 108-09. The district court herein applied rule 1 and held the BTA order was not substantially supported by the evidence and was arbitrary and capricious. Properly, rule 2 was the applicable standard of review. However, in the district court’s memorandum opinion is its determination that the exemption is authorized by K.S.A. 1983 Supp. 79-201 Second and article 11, § 1, of the Kansas Constitution. The activities of the NCAA are varied including rule making, publication and dissemination of information, investigation of recruiting violations and discipline thereof, and promoting championship events. These activities are but parts of the whole program and are so integrated as to preclude separate consideration of the various components. We conclude that the subject property, the national headquarters of the NCAA, is property used exclusively for educational purposes within the meaning of K.S.A. 1983 Supp. 79-201 Second, and article 11, § 1, of the Kansas Constitution. 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Per Curiam: This is a criminal action in which Alvin Matzke (defendant-appellant) appeals a conviction of one count of impairing a security interest (K.S.A. 21-3734). The defendant filed and briefed his appeal pro se. He expressly waived presentation of oral argument before this court. The events which led to this criminal action against Matzke began when he borrowed money for his farming operations from the First National Bank of Onaga, Kansas (FNB) and from the Farmers Home Administration (FHA). On January 11, 1980, Matzke entered into a security agreement with the FHA. On May 20, 1981, he entered into a security agreement with the FNB. Both agreements provided that the creditors were to have security interests in all of Matzke’s livestock, both, presently owned and after acquired. Each agreement also listed certain specific livestock and machinery which were subject to the security interest. Further, both agreements contained clauses which required the debtor (Matzke) to obtain written permission from the creditor before selling any secured property. Despite this clause, the FNB made it a practice to allow sales by the debtor without permission as long as the proceeds were applied to the debt. See Peoples National Bank & Trust v. Excel Corp., 236 Kan. 687, 695 P.2d 444 (1985). The FHA, on the other hand, never waived the requirement for written permission. Between October of 1981 and January of 1982, the defendant sold much of his livestock at various sale barns. All such sales were in the absence of written permission and knowledge of the creditors. The defendant pocketed most of the proceeds from these sales and sent the remainder to the National Commodity Exchange (NCE). The NCE, an organization which promotes the theory that the federal reserve system is illegal, was not a secured party. In November of 1981, the FNB requested Matzke’s permission to visit his farm in order to inspect its secured property. Up to this time, Matzke had always complied with such requests and had made good faith efforts to apply money to his debt. However, beginning in November, Matzke refused such inspections and threatened those who sought admittance to his land for such purposes. He also ceased making payments to the FNB. Shortly after these troubles arose, the FNB began foreclosure procedures on Matzke’s loan. Following the foreclosure, the FNB’s attempts to repossess its collateral revealed that much of Matzke’s livestock was missing. After making this discovery, the FNB and the FHA, through the prosecuting attorney, instigated the criminal proceeding which led to this appeal. On August 16, 1983, the defendant was charged with two counts of impairing a security interest in violation of K.S.A. 21-3734. The first count alleged that the defendant had sold or disposed of secured property, while the second count alleged that the defendant had concealed such property. Evidence at the preliminary hearing revealed that Matzke had sold, and not concealed, the missing livestock. Consequently, the second count was dismissed without prejudice. Matzke presents for our consideration four issues on appeal. I. Matzke first contends that the District Court of Pottawatomie County lacked jurisdiction in this criminal proceeding. The defendant’s argument, as we perceive it, is two-fold. First, he claims he had become an “Absolute Natural Person” by virtue of filing affidavits which purport to revoke all power “formerly granted” to any and all governmental agencies which are referred to by Matzke collectively as the “cestui que trust.” As an “Absolute Natural Person,” Matzke believes he has removed himself from the bounds and strictures of our society and from the jurisdiction of the courts and other governmental entities. Second, Matzke claims the State of Kansas is not a legal entity, and, therefore, cannot be a plaintiff in any criminal proceeding. Matzke cites no authority to support his assertions. Although we have attempted to understand the defendant’s arguments, we find them completely lacking in logic and substance. The court clearly had personal and subject matter jurisdiction. In personam jurisdiction is acquired when the properly served defendant is a resident of this state. Matzke was, at all times, a resident of Kansas and he was properly served. Venue in Pottawatomie County was proper because the defendant’s criminal act was committed within that county. K.S.A. 22-2602. Subject matter jurisdiction is the power of the court to hear and decide a particular type of action. Kansas district courts are courts of general jurisdiction, and, under K.S.A. 20-301 and K.S.A. 22-2601, the district court was the proper court in which to initiate this criminal action. All statutory requirements concerning the issuance of the complaint, arrest pursuant to a warrant, initial appearance, preliminary hearing, arraignment and trial were followed. The defendant was not denied due process of law. The defendant’s argument does not seem to be based on the application of these statutes or their constitutionality. Rather, he would have us hold that he is not subject to the law due to his self-proclaimed status as an “Absolute Natural Person.” Recognition of this concept would abrogate the law established pursuant to the Kansas and United States Constitutions. We hold that a person may not extricate himself from his liabilities or obligations under the law by declaring that he is an “Absolute Natural Person” or by claiming to revoke some power “formerly donated” to governmental agencies. Matzke’s contention that Kansas is not a legal entity because it has ceased to have a republican form of government is wholly without merit. II. The defendant next contends he was denied “counsel of his choice” in the proceedings before the district court. Matzke was informed of his right to counsel during his first appearance on August 25, 1983. From that time until he was finally sentenced, Matzke demanded that the court allow his non-lawyer friend to represent him. In answer to this repeated demand, the court would inform Matzke that he could be represented by an attorney or that he could represent himself, but that a lay person could not represent him before the court. Matzke was informed that he was free to speak with and consult his friend for advice, but a non-lawyer could not be allowed to practice law before the court. The court also advised Matzke of the advantages of having counsel and of the disadvantages of self-representation. A typical colloquy between the court and Matzke regarding the appointment of counsel was as follows: “THE COURT: This is Case 83-CR-329, State of Kansas vs. Alvin Matzke. The matter is before the Court this morning for arraignment. Mr. Matzke appears in person. The State appears by Mr. John Watt, the County Attorney. “Mr. Matzke, are you representing yourself in this matter, sir? “THE DEFENDANT: At this point I’m representing myself, but I do need counsel. “THE COURT: Are you asking the Court to appoint an attorney for you? “THE DEFENDANT: Counsel has been appointed. Court has appointed counsel. He’s not here, today. “THE COURT: Well, no. The Court will have to consider whether or not to reappoint at this stage of the proceedings, Mr. Matzke. My — “THE DEFENDANT: (Interrupting) For what reason, sir? “THE COURT: Because we’re starting into a new phase of the case and this Court is obligated to do so, and in doing that this Court is obligated to determine whether or not you are legally entitled to have an attorney appointed for you. “Are you asking the Court to appoint an attorney for you? “THE DEFENDANT: I am asking the Court for counsel of my choice. “THE COURT: Well, you are not entitled to counsel of your choice, neees sarily. That depends on who it is. Who is it that you’re asking to be appointed for you? “THE DEFENDANT: My best friend. “THE COURT: Is lie a licensed attorney? “THE DEFENDANT: No, he’s not. “THE COURT: Well, that cannot be done. That’s not legally permissible. “THE DEFENDANT: It’s denying me the Fifth Amendment of counsel of my choice. “THE COURT: It is not legally permissible, Mr. Matzke. If you want the Court to appoint counsel for you, the Court will appoint a licensed attorney for you. “THE DEFENDANT: I object to your proceedings, sir. “THE COURT: Well, the record will note your objection, but if you want counsel appointed you will be required to complete an Affidavit setting forth your property, your income and your debts, so that I can determine from that whether or not you are legally entitled to have an attorney appointed for you.” The defendant never filed an indigency affidavit. He did file a document which stated he intended to proceed pro se. Upon the defendant’s request, the court appointed a standby attorney to be present for consultation at trial. Matzke did, in fact, consult with his standby attorney on numerous occasions. After reviewing the record, it is clear the defendant was fully informed of his right to be represented by an attorney or to represent himself. The trial court took all necessary steps to insure that the defendant’s decision to represent himself was knowingly and intelligently made. Faretta v. California, 422 U.S. 806, 45 L.Ed.2d 562, 95 S.Ct. 2525 (1975). The authority to appoint standby counsel rested within the sound discretion of the trial court. Locks v. Sumner, 703 F.2d 403, 407 (9th Cir. 1983); United States v. Gigax, 605 F.2d 507, 517 (10th Cir. 1979). The trial court did not err in refusing to allow a lay person to represent the defendant. It is well established that a criminal defendant has no constitutional right to have an unlicensed attorney or lay person represent him. In particular, the Sixth Amendment does not create a right to be represented by a non-attorney. United States v. Taylor, 569 F.2d 448, 451 (7th Cir. 1978); United States v. Grismore, 546 F.2d 844 (10th Cir. 1976); Fair v. Givan, 509 F. Supp. 1086 (N.D. Ind.1981); State ex rel. Stephan v. O’Keefe, 235 Kan. 1022, 686 P.2d 171 (1984). To hold otherwise would amount to court sanction of the unauthorized practice of law. III. On January 18, 1984, five days prior to trial, Matzke filed a “Removal” in the United States District Court in which he purported to remove the action from the state court pursuant to 28 U.S.C. § 1443 (1982). The federal court denied the motion and remanded the case back to the state court on January 23, 1984. The state court informed Matzke that the case had been remanded and, on that same day (January 23), the case proceeded to trial as scheduled. The jury returned a verdict on January 24. On January 25, 1984, a certified copy of the remand order was filed in the Pottawatomie County District Court. On appeal, Matzke argues the state court lacked jurisdiction at the time of trial because it did not yet have a copy of the remand order in its possession. It is noteworthy that Matzke never objected to the notice of remand prior to this appeal. It is also noteworthy that Matzke cites no authority for this contention of error. Under the provisions of 28 U.S.C. § 1446 (1982), the state court retains jurisdiction of criminal matters upon the filing of a removal petition in the federal court. The state court may continue with proceedings, except a judgment of conviction cannot be entered unless the petition has been denied. 28 U.S.C. § 1446(c)(3) (1982). The state court’s jurisdiction is completely suspended only if the removal is granted. 28 U.S.C. § 1446(c)(5) (1982). Since the federal court never granted the removal, the state court retained jurisdiction at all times. The judgment of conviction was not entered until the defendant was sentenced on March 12, 1984. State v. Moses, 227 Kan. 400, 607 P.2d 477 (1980). Since the removal had been denied prior to that time (on January 23) the state court clearly had jurisdiction under 28 U.S.C. § 1446(c)(5) (1982) to enter the judgment of conviction. The lack of physical possession of a certified copy of the remand order on the day the verdict was handed down did not deprive the state court of jurisdiction. See Johnson v. Estelle, 625 F.2d 75, 78 (5th Cir. 1980). IV. The defendant’s final argument is that there was insufficient evidence presented at the preliminary hearing to provide a finding of probable cause necessary to hold the defendant for trial. The defendant apparently does not challenge the sufficiency of the evidence at trial. At no time prior to trial did Matzke challenge the probable cause finding at the preliminary hearing. A challenge to the sufficiency of the preliminary hearing must be made prior to trial by a motion to dismiss. K.S.A. 22-3208. This court has held that where a defendant fails to raise this issue by a timely motion to dismiss, he waives the right to challenge the preliminary hearing, and is precluded from raising the issue on appeal. State v. Weigel, 228 Kan. 194, 612 P.2d 636 (1980); State v. Smith, 225 Kan, 796, 594 P.2d 218 (1979); State v. Smith, 215 Kan. 34, 37, 523 P.2d 691 (1974). Accordingly, this issue is without merit. The judgment of the trial, court is affirmed.	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The opinion of the court was delivered by Prager, J.: This is a direct appeal in a criminal action from a conviction of murder in the first degree (K.S.A. 21-3401). The defendant, Lila J. Baker, was tried and convicted of the murder of her uncle, Milford Fall. The circumstances leading up the homicide were not greatly in dispute. The State’s evidence showed that the defendant was at the home of her uncle and aunt, Mr. and Mrs. Milford Fall, on the morning of November 19, 1982. After they had breakfast and participated in Bible study, Milford Fall went to the bathroom to shave, leaving the defendant and Mrs. Fall in the kitchen. According to the State’s evidence, the defendant left the kitchen and followed her uncle to the bathroom where she shot him five times. Immediately after the shooting, the defendant told Mrs. Fall that she had observed the victim shooting himself and that she had taken the gun out of his hand and put it in her purse. Milford Fall’s body was taken to a funeral home. The sheriff and deputy coroner originally labeled the death to be a suicide. However, in the process of embalming the body, a fifth bullet hole was discovered in the victim’s back. An investigation followed, and the defendant was charged with murder in the first degree. Following the shooting the defendant gave several versions as to what happened. One version was that the defendant was in the hall when the shooting occurred. Another version was that she was in the bedroom across from the bathroom when she saw Fall shoot himself. On November 22, 1982, three days after the shooting, the defendant gave a written statement to the Jewell County sheriff in which she stated that she had stepped into the living room, heard the shots, and rushed to the bathroom. Fall was still standing but immediately fell down. Under these versions, none of the shots were fired by the defendant. A psychiatrist, called to the stand by the defendant, testified that the defendant had told him that while she was in another room, she heard two shots. She then went to the bathroom where Fall gave the gun to her, and she finished him off with an additional three shots’. There was never any real dispute in the case of the fact that the defendant had shot her uncle. The weapon used was the defendant’s gun, used by her in target practice at her home. The basic defense in the case was that the defendant was not guilty by reason of insanity. The jury considered all of the evidence in the case, rejected the defense, and returned a verdict of guilty of murder. The defendant appealed. The first point raised by defendant on the appeal is that the trial court erred in not granting defendant’s motions for acquittal at the close of the State’s evidence and again at the close of all the evidence presented in the case. The defendant maintains, in substance, that the undisputed evidence established that the defendant was legally insane at the time of the killing as a matter of law and, therefore, the trial court should have taken the case from the jury. The State took the position that the issue of defendant’s sanity was a jury question. We hold that the trial court properly submitted the issue of defendant’s sanity to the jury. This issue is covered by our holdings in State v. Nemechek, 223 Kan. 766, 576 P.2d 682 (1978), and State v. Boan, 235 Kan. 800, 686 P.2d 160 (1984). In Nemechek, this court stated: “There is a presumption of sanity in a criminal proceeding that may be relied upon by the prosecution to establish a prima facie case. The presumption is rebutted when evidence is introduced which could raise a reasonable doubt concerning a person’s sanity and the question of sanity then becomes a question for the jury, assisted by proper instructions.” Syl. 11 1. In Nemechek, the court stated that it is a rare occasion when an insanity question should be taken from a jury by a motion for acquittal. Nemechek was followed by State v. Boan which held that, unless evidence of insanity is so great that the trial judge could rule that the government could not convince a reasonable man it has sustained its burden of proof, the issue should go to the jury. There was evidence presented in this case that, following the shooting, defendant called a friend and requested that she send some men down to the Fall residence. The two men testified that they went there and defendant asked them to go back to her house and get rid of a box and shells she had there which matched the gun used in the shooting. The two psychiatrists who testified at the trial on behalf of the defense concluded, in substance, that although the defendant was operating with delusional thinking, she knew that her uncle was going to die when she pulled the trigger. Although each of the medical experts was of the opinion that the defendant had a severe mental illness, suffered from delusions, was in a psychotic state, and believed that she was right in shooting her uncle, neither of the doctors testified that she lacked the capacity to know that what she was going was contrary to law. In other words, both psychiatric experts testified that, at the time of the shooting, the defendant understood the nature and quality of her act — she knew that she was shooting her uncle with a gun and that he was likely to die therefrom. Although the defendant believed that she was morally right in killing her uncle because she felt anger and hostility toward her uncle because of her delusional thinking, neither of the medical experts testified that she did not know that what she was doing was legally wrong. Thus the test for legal insanity under the M’Naghten rule as clarified in State v. Boan was not satisfied. Furthermore, there was testimony from defendant’s husband that he never thought the defendant did not know right from wrong and always thought she knew who she was and what she was doing. This evidence, coupled with defendant’s attempts to conceal her responsibility for the crime, raised an issue of fact which the trial court properly submitted to the jury. We hold that the trial court did not err in denying defendant’s motions for acquittal. Defendant’s next point is that the trial court erred in refusing to permit an expert in psychiatry, Dr. Walter Menninger, to testify whether he had an opinion as to defendant’s insanity under the M’Naghten rule. We have examined the record in this case and concluded that the trial court did not prevent defense counsel from asking Dr. Menninger’s opinion in regard to defendant’s sanity. At one point in the trial, the court sustained an objection to a question, stating that the form of the question was improper because it was multi-faceted. It is clear to us that the question asked was somewhat leading. Later, counsel specifically asked Dr. Menninger for his opinion as to defendant’s mental ability to distinguish between right and wrong on the date of the shooting. Dr. Menninger was permitted to answer the question. We find that the trial court did not refuse to permit Dr. Menninger to state his opinion as to defendant’s sanity. Tlie third issue is whether the trial court erred in failing to sustain defense counsel’s objection to lay testimony regarding defendant’s knowledge of right and wrong. Specifically, the defendant’s husband was permitted to testify on cross-examination that the defendant always appeared to know who she was, where she was, and what she was doing, and that he never suspected that she did not know right from wrong. The Kansas decisions have consistently permitted lay testimony as to a defendant’s sanity to be considered by the jury. State v. Bates, 226 Kan. 277, 280, 597 P.2d 646 (1979); State v. Rumble, 81 Kan. 16, 105 Pac. 1 (1909). We find no abuse of discretion by the trial court in permitting the husband to testify as to his observations of the defendant’s actions and demeanor during the time period when the shooting occurred and to state his opinion as to her capacity to distinguish between right and wrong. The defendant’s next point is that the defendant is entitled to a new trial by reason of prosecutorial misconduct. We have considered each of the matters about which defendant complains. We have concluded that there was no prejudicial error justifying a reversal of the case. Although the prosecutor may have been carried away by his enthusiasm for his cause, we cannot say that his conduct was so gross and flagrant as to require a new trial. We also note that, as to all but one of the matters complained of, counsel for defendant did not object to the statements made by the prosecutor in his oral argument. The defendant’s final point on the appeal is that the trial court erred in allowing court proceedings outside the presence of the defendant. There were four specific incidents during the trial when court and counsel took up matters at a time the defendant was not present. A defendant’s right to be present at his criminal trial is protected under the Sixth Amendment to the United States Constitution and K.S.A. 22-3405. This court has interpreted those provisions, stating: “We recognized the general rule that the defendant’s statutory and constitutional rights are violated only if the defendant is absent when the jury is hearing the case or when he is prevented from attending such other proceedings where his presence is essential to a fair and just determination of a substantial issue. The defendant’s rights to be present, however, do not encompass proceedings before the court involving matters of law.” State v. Garcia, 233 Kan. 589, 594-95, 664 P.2d 1343 (1983). See also State v. Sanders, 227 Kan. 892, 893-94, 610 P.2d 633 (1980); State v. Nelson, 223 Kan. 251, 253, 573 P.2d 602 (1977); State v. Muntz, 222 Kan. 453, 463, 565 P.2d 612 (1977). In Sanders, the court heard a motion in limine at an in-chambers conference when the defendant was not present. The court held that the motion was not crucial since only matters of law were being considered and the defendant was not prejudiced because of his absence. In Mantz, an in-chambers conference was held between counsel and court involving instructions. No instructions were presented to the jury at that time. The court held that only matters of law were considered and that defendant’s presence was not essential to a just determination of a substantial issue. In the case now before us the same’ type of situation existed in two of the incidents about which defendant complains. The court heard a motion for acquittal and at another time heard arguments about the admissibility of certain testimony in the absence of the defendant. The issue on the motion for acquittal and the determination of the sufficiency of the foundation for the admission of testimony were both matters of law. The jury at no time was aware of these rulings. We find no prejudice in the fact that the defendant was not present at those conferences. The defendant also complains about the court’s discussion with the jury while she was absent. Simply stated, after the jury had retired to the jury room to deliberate and as evening approached, the judge asked the jury whether it wanted to recess its deliberations until the next morning or continue to deliberate. The jury opted to continue deliberations and did so. In due course, the jury came in with a verdict of guilty which was delivered to the court at a time defendant was present. Although a defendant has the right and should be present when a court communicates with a jury, the absence of the defendant may be harmless error where there is no reasonable possibility of prejudice from the error. That rule is recognized in State v. Garcia, 233 Kan. at 596. Under the circumstances shown in the record, we hold that the defendant’s absence at the time the judge discussed with the jury whether or not it desired to continue its deliberations was harmless error beyond a reasonable doubt and that a new trial should not be granted for that reason. The other incident from which defendant was absent was an in-chambers conference where defense counsel indicated defendant was having trouble understanding the proceedings. Courisel simply asked for the court’s patience while he was talking with his client. It appears that counsel desired more time to better explain things to defendant. Defense counsel did not suggest that there should be a new competency hearing. This in-chambers conference should not be considered a competency proceeding. Where there is a competency proceeding, K.S.A. 22-3302(8) requires that the defendant be personally present at all proceedings under that section. Here the in-chambers conference was not a competency proceeding, and we find this claim of error to be without merit. We have considered all of the points of claimed error raised by the defendant on the appeal. The case was a difficult one because the evidence was undisputed that the defendant was suffering from schizophrenic paranoia, a severe mental illness. The case was prosecuted and defended by two able trial lawyers who represented each side in a highly professional manner. None of the issues raised on the appeal justify a reversal of the case. The judgment of the district court is affirmed.	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The opinion of the court was delivered by Miller, J.: This is an appeal by the defendant, Steven L. Hanks, following his conviction by jury trial in Barton County District Court of criminal trespass, K.S.A. 21-3721; battery, K.S.A. 21-3412; attempted rape, K.S.A. 21-3301, -3502; aggravated battery, K.S.A. 21-3414; aggravated burglary, K.S.A. 21-3716; and aggravated robbery, K.S.A. 21-3427. Defendant raises a number of issues, which we will separately state later in this opinion. These involve claims of error as to sufficiency of the evidence, argument of counsel, other crimes evidence, consolidation, mistrial, opinion evidence, double jeopardy, speedy trial, and jury instruction. The charges of criminal trespass and battery arose out of an incident which took place July 6, 1981. The balance of the charges arose out of a separate incident occurring on November 26, 1981. The charges, originally filed as separate cases, were consolidated for trial on motion of the State. The first trial began December 20, 1982, and concluded three days later when the court declared a mistrial, the jury being unable to agree on a verdict. The second trial commenced on March 14, 1983, and concluded with the defendant’s conviction on March 16, 1983. On motion of the defendant, that verdict was set aside and a new trial was granted. The third trial began on July 5, 1983, and concluded on July 8, with the defendant again being found guilty on all counts. This appeal followed the overruling of new trial motions and the imposition of sentence. The defendant first contends that the trial court erred in overruling his motion for acquittal because the evidence was insufficient to sustain his conviction concerning the November 26 incident and the resulting charge. We therefore turn first to the facts established by the evidence. When there is a challenge to the sufficiency of the evidence to support a conviction, the standard of review on appeal is whether the evidence, when viewed in a light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. We look only to the evidence in favor of the verdict to determine if the essential elements of the charges are sustained. State v. Burton, 235 Kan. 472, 476, 681 P.2d 646 (1984); State v. Pham, 234 Kan. 649, 668, 675 P.2d 848 (1984); State v. Douglas, 230 Kan. 744, 640 P.2d 1259 (1982). Miss B began working in the office of a manufacturing plant in Great Bend in April 1981. The defendant also worked in the plant. He began coming to her office anywhere from two to twenty times a day, asking her for a date, telling her she was pretty and had a nice smile, and that he would like to get to know her better. He also gave her notes asking her out. She continually refused him, stating that she did not believe in dating married men. Eventually she was moved to another office so that she might avoid the defendant. The defendant discussed Miss B with a coemployee, Thomas. He told Thomas that he would like to “get in her pants” and to have intercourse with Miss B. On July 6, 1981, at about 7:00 o’clock a.m., Miss B was awakened by a noise, rolled over in bed, and saw the defendant standing in her bedroom doorway. She sat up in bed and the defendant came over and started kissing her and fondling her breasts. She immediately became angry, pushed him away, told him several times to leave, and finally threatened to call the police. Defendant left. Miss B had not invited him to her home. All of her windows and doors had been locked except the back door; she had opened it earlier that morning to let her dog out, at which time she left the back door open but thought she had locked the screen door. These facts form the basis for the criminal trespass and battery charges, the sufficiency of which evidence is not challenged. The defendant’s advances to Miss B, during their hours at work, continued unabated. On November 25, 1981, Miss B locked all of her doors and windows and retired about 11:00 o’clock p.m. About 3:00 o’clock the following morning, November 26, 1981, she was awakened by a rattling noise and the barking of her dog. She arose, turned on the light, put on her glasses, opened her bedroom door, and was confronted by a man wearing a ski mask and carrying a knife. The man came toward her, ripped her gown and then cut her gown and panties off of her with the knife. He came at her “like a raged animal,” forced her onto the bed, threw her glasses away, and started to beat and choke her. He first said that all he wanted was her money, then he said that he ought to have intercourse with her. He continued to beat the left side of her face with his right hand, in which he held the knife. She received a cut on her head which bled profusely. He inserted his gloved finger into her vagina and moved it up and down, causing her pain. During this time, Miss B was able to raise the bottom of the ski mask sufficiently so that she could see that her attacker was a white male with stubble on his neck. This caused the man to increase the severity of his attack, to beat and choke her more violently. Finally, she said: “I rebuke you in the name of Jesus Christ.” She then lost consciousness. When she awoke, she was on the floor and her attacker was gone. She crawled into the living room, and telephoned for help. Later, she discovered that the glass was broken out of the back door, and that her purse had been stolen. When she returned to work on the following Monday with her face all swollen, the defendant came to her office. He looked at her twice, she looked at him, his face turned red, his mouth dropped open, and he walked out without saying anything. He did not come to her office again for six weeks. Miss B testified that Steve Hanks was her attacker. This was her opinion. I. SUFFICIENCY OF THE EVIDENCE Defendant divides his attack on the sufficiency of the evidence into two categories. He first calls our attention to a number of inconsistencies or discrepancies in the evidence. Miss B gave what she characterized as a “guesstimate” of her assailant’s height. She thought he was about five feet, eight inches tall. Defendant is six feet, one inch tall. The assailant was not wearing glasses (under or over his ski mask). Defendant wears glasses. Miss B did not smell alcohol on her assailant’s breath; there was evidence that the defendant had been drinking some three or more hours prior to the assault. Miss B stated that she saw stubble on her assailant’s neck; defendant offered evidence that he had a full beard at that time. The State offered evidence that he did not have a full beard in November 1981, but that he had often had two or three days’ growth, or stubble. All of these matters, and other similar ones to which the defendant points, were no doubt argued to and considered by the jury, and rejected by that body when it arrived at its verdict. As we noted in State v. Douglas, 230 Kan. 744, 746, 640 P.2d 1259 (1982): “It is not the function of the appellate court to reweigh the evidence or to pass upon the credibility of witnesses. State v. Fenton, 228 Kan. 658, 666, 620 P.2d 813 (1980); State v. Henderson, 226 Kan. 726, 731, 603 P.2d 613 (1979).” Defendant also argues that there is no direct evidence which places him at the scene of the crime. The victim did not see his face and did not testify that she recognized his voice. There was no fingerprint evidence, and no property taken was later found in defendant’s possession. Even if the State’s case were entirely circumstantial, however, such evidence would be sufficient. It is well established in this jurisdiction that a conviction of even the gravest offense may be sustained by circumstantial evidence. State v. Henderson, 226 Kan. 726, 731, 603 P.2d 613 (1979); State v. Steward, 219 Kan. 256, Syl. ¶ 13, 547 P.2d 773 (1976); State v. Sparks, 217 Kan. 204, 535 P.2d 901 (1975); State v. Ritson, 215 Kan. 742, 529 P.2d 90 (1974). Defendant next argues that there was no evidence of attempted penetration, therefore he cannot be convicted of attempted rape. The victim testified that while she was conscious her assailant never took off his clothes, never exposed his penis, and never tried to penetrate her sex organ with his. This argument was made and rejected in a similar case, State v. Arnold, 1 Kan. App. 2d 642, 573 P.2d 1087 (1977), rev’d on other grounds, 223 Kan. 715, 576 P.2d 651 (1978), where the defendant accosted a young woman on the Wichita State University campus. Apparently he knocked her down, placed one of his hands on her neck and mouth and attempted to close her mouth and choke her, told her to be quiet or he would kill her, and, while he was on top of her, attempted to turn her over on her back and placed one hand on the center of her lower abdomen. The victim, a deeply religious person, commanded her assailant to leave in the name of Jesus, and the man left. No clothing of the victim or the attacker was ever removed. The defendant argued that the evidence was insufficient to show an intent to rape. The Court of Appeals said: “We think the evidence was such — the stealth, the physical actions including the threats, the relative positions of the parties and the like — that the jury could properly have drawn the inference that defendant was bent on rape. This meets the test on appellate review. [Citation omitted]. The issue was one for jury resolution, which settles the matter on appeal.” 1 Kan. App. 2d at 644. Here, the assailant entered a locked home by force and stealth, cut all of the victim’s clothes from her body with a knife, threw her down on a bed, inserted his gloved finger into her vagina, and said that he ought to have intercourse with her. Clearly this is sufficient evidence from which a rational finder of fact could find that the attacker intended to rape the victim. A charge of attempted rape may be established without evidence of attempted penetration. We find no merit in this argument. II. OTHER CRIMES EVIDENCE Defendant argues that the trial court erred in denying defendant’s motion in limine to prohibit the State from introducing evidence of defendant’s prior conviction and past sexual misconduct. The State was allowed to introduce evidence of other crimes committed by the defendant. The trial court admitted this evidence for the limited purpose of proving the defendant’s intent and identity, and the court so instructed the jury. The State called three young women as witnesses. Two of them were raped by the defendant at knifepoint. The third was accosted by the defendant and threatened with a knife. Defendant told her that he was going to rape her, but she was finally able to talk him into leaving without raping her. Defendant told one of the women to take her clothes off or he would cut them off; he did cut the blouse off another woman, then removed the rest of her clothing. The three attacks, like that on Miss B, were violent in nature, were made with a knife, and were made with the avowed purpose and intent to rape. Defendant was not prosecuted for the first two, the completed rapes; he was convicted of attempted rape following the third incident. The State argues that other crimes evidence is admissible under our law to prove intent and identity, K.S.A. 60-455, and that the evidence was properly admitted in this case. Defendant argues that this was merely a ploy used by the State to get evidence of the defendant’s bad character in front of the jury so that it might conclude that the defendant had a propensity to commit crimes of the type perpetrated against Miss B. He also argues that even if the State intended to establish intent and identity, the crimes were not of sufficient similarity to make their probative value outweigh their prejudicial effect. As we observed in State v. Faulkner, 220 Kan. 153, 155, 551 P.2d 1247 (1976): “In ruling on the admissibility of evidence of a prior conviction under 60-455, a district court must (1) determine it is relevant to prove one of the facts specified in the statute, (2) determine that fact is a disputed material fact — i.e., that it is substantially in issue and (3) balance the probative value of the prior conviction evidence against its tendency to prejudice the jury.” Hanks relied on a defense of alibi as to the charges arising on November 26. The issue of identity was, therefore, the principal issue in this case. Intent to rape was also in issue, but identity of the perpetrator was of controlling importance. It was the main disputed material fact in all of the charges stemming from the November 26 incident. Defendant argues that the crimes were not similar because Miss B’s assailant wore a mask, while defendant in his attacks on the other three women did not conceal his identity. The statute does not require the prior offense to be identical in nature to the offense for which defendant is on trial; it is sufficient if the offenses are similar. State v. Ritson, 215 Kan. at 747; State v. Jamerson, 202 Kan. 322, 449 P.2d 542 (1969). One offense, like the one before us, involved one of defendant’s coemployees; another involved a neighbor; the third involved a young woman whom defendant had dated for a short time. All three incidents involved threats, violence, and the use of a knife. In all instances, the victim was alone with the defendant in a secluded location when the attack occurred. Defendant was acquainted with all four of the young women before the attack. Those who tried to fight off his attacks were cut or otherwise injured. The attacker used language during each of the incidents similar to that used during the November 26 attack on Miss B. We conclude that the prior crimes were sufficiently similar to show identity and intent, and, though their admission was prejudicial, their probative value in the case at hand outweighed their prejudicial effect. The trial court did not err in admitting this other crimes evidence. III. THE CLOSING ARGUMENT The defendant argues that the prosecutor’s closing argument was improper, inflammatory, and so prejudicial to the defendant as to prevent a fair trial. Specifically, defendant complains of the prosecutor’s reference to the defendant as a “rapist,” an “experienced rapist,” and a “reformed rapist.” He also complains of the prosecutor’s argument that: “[I]f it walks like a duck and quacks like a duck and looks like a duck it most probably is a duck, and I submit to you all of the evidence in this case looks like Steven Hanks, acts like Steven Hanks, and has all the characteristics and behavioral characteristics of Steven Hanks when he’s on the trail of an innocent woman. We ask that you find him guilty on each and every count because the •uncontroverted evidence of the knife and what he does to women when they reject him all indicate the tracks of Steven Hanks that no water or argument or pictures or whatever else they’ve tried to do can wash out. This man on the basis of the evidence, is the one, and the State of Kansas asks that you find him guilty on each and every count. Thank you.” After the parties had rested and the jury had been instructed by the trial judge, the prosecutor made the first argument, counsel for the defendant responded, and the prosecutor made the concluding argument. K.S.A. 22-3414(4). All of the remarks which are challenged by the appellant were made during the prosecutor’s concluding argument. All of the arguments of counsel must be briefly reviewed in order to place the remarks in context. The prosecutor, in his first argument, reviewed the trial court’s instructions as to the elements of each of the offenses with which defendant was charged. He then reviewed the evidence, placing emphasis on the similarity between the “other crimes” which were in evidence with the evidence on the November 26 attack on Miss B. He argued that the similarities disclosed the “tracks” of the defendant. Defense counsel, in response, pointed out the dissimilarities between the “other crimes” and the crime charged; contended that the evidence was far from disclosing “tracks” of the defendant; and further argued that, though the defendant had raped before, he had learned his lesson, did not want to become involved with a woman under suspicious circumstances, and would not rape or attempt to rape again. The prosecutor, in the concluding portion of his argument, contended that the defendant had learned by his prior experiences, and thus the wearing of a mask was a result of his learning experience; that if he had truly reformed, he would not continue to make advances to other women, and would not have come to Miss B’s home and accosted her in July, let alone in November; and finally, counsel argued that the similarities betweeen the de fendant’s attacks on the other women and the November attack on Miss B disclosed the unmistakable “tracks” of the defendant. These arguments were responsive to those of the defense, and were based upon the evidence. The “duck” argument which concluded the prosecutor’s remarks was simply an analogy used to call the jury’s attention to the similarity of the attacks. The prosecutor’s remarks were founded upon matters in evidence. They were not inflammatory. Some were in response to the defendant’s closing argument. We conclude that the argument complained of did not exceed the limits of fairness and was not prejudicial error. In State v. Robinson, 219 Kan. 218, 547 P.2d 335 (1976), we dealt with a similar challenge to the prosecution’s closing argument. We said: “The prosecutor is entitled to considerable latitude in arguing the case to a jury. State v. Potts, 205 Kan. 47, 468 P.2d 78. There is no prejudicial error where the questionable statements of a prosecuting attorney are provoked and made in response to previous arguments or statements of defense counsel. State v. Magee, 201 Kan. 566, 441 P.2d 863; State v. Cippola, 202 Kan. 624, 451 P.2d 199, cert. den. 396 U.S. 967, 24 L.Ed.2d 432, 90 S.Ct. 446.” 219 Kan. at 221. See also State v. Dorsey, 224 Kan. 152, Syl. ¶¶ 1 and 2, 578 P.2d 261 (1978). We find no prejudicial or reversible error in the closing argument in this case. IV. CONSOLIDATION Defendant next contends that the trial court erred in consolidating the charges arising on July 6 with those arising on November 26. He contends that the consolidation permitted the State to use the evidence of prior crimes, which would not have been admissible in a separate trial for the July 6 charges, criminal trespass and battery, wherein intent and identity would not have been at issue. He also contends that he wished to testify about the July 6 incident but not the November 26 incident, and thus consolidation prevented him from testifying. We discussed the rules pertaining to the consolidation for trial of separate charges in State v. Bagby, 231 Kan. 176, 177-78, 642 P.2d 993 (1982). Chief Justice Schroeder, writing for a unanimous court, said: “K.S.A. 22-3203 governs consolidation for trial of separate complaints or informations: “ ‘The court may order two or more complaints, informations or indictments against a single defendant to be tried together if the crimes could have been joined in a single complaint, information or indictment.’ “Joinder in the same complaint or information is proper if the crimes charged: (l) 'are of the same or similar character, (2) are based on the same act or transaction, or (3) are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan. K.S.A. 22-3202(1). “Consolidation in the instant action rests on the same or similar character of the crimes involved. State v. Ralls, 213 Kan. 249, 256-57, 515 P.2d 1205 (1973), further delineated the prerequisites for consolidation under these circumstances: ‘When all of the offenses are of the same general character, require the same mode of trial, the same kind of evidence and occur in the same jurisdiction the defendant may be tried upon several counts of one information or if separate informations have been filed they may be consolidated for trial at one and the same trial.’ “Within these guidelines, the decision to consolidate rests within the sound discretion of the trial court and its holding will not be disturbed on appeal, absent a clear showing of abuse of the exercise of that discretion. State v. Adams, 218 Kan. 495, 506, 545 P.2d 1134 (1976); State v. Browning, 182 Kan. 244, 248, 320 P.2d 844 (1958); State v. Acheson, 3 Kan. App. 2d 705, 707, 601 P.2d 375 (1979).” Could the charges arising from the separate incidents have been joined in a single information? We hold that they could. The charges arising from both incidents involved the same victim and the same defendant; they arose in the same locale; the acts and crimes charged were of similar character, although the second is by far the most serious; and they may be said to be based on two or more acts constituting parts of a common scheme or plan, the object of which was intercourse with the victim, Miss B. In each instance, the entry into the home was made to advance that ultimate objective. Both incidents occurred within the same jurisdiction, and both involved similar although not identical evidence. Even though some evidence might be admissible to establish one incident and not the other, that does not prevent consolidation for trial. Although the defendant did not testify in his behalf at the trial, his version of the July 6 incident was given fully through another witness to whom the defendant had given a detailed account of his version of what happened. Under the circumstances, we cannot say that the defendant was prejudiced by the joinder or that the trial court abused its discretion in consolidating the cases for trial. V. DEFENDANT’S MOTION FOR A MISTRIAL During cross-examination of the complaining witness, a eolio quy between counsel followed the making of an objection to a question asked of the witness. Counsel for the defendant, referring to the witness, said, “[I]t’s her case.” The court responded: “Well, the impropriety, Mr. Holland, is to characterize it as her case. It’s not her case, it’s the State’s case and it’s the State that has the responsibility ... to produce the evidence, not Miss [B], She was the victim.” Counsel for the defendant then moved for a mistrial during a conference out of the hearing of the jury, and the court denied the motion. Defendant argues that it was improper for the court to state that it was the State’s case, not Miss B’s case. Since all prosecutions for violation of state law are conducted in the name of the State of Kansas, K.S.A. 22-2104, the trial court was correct. Defendant also argues that the trial court should not have referred to Miss B as the victim. There was no dispute but that Miss B had been the victim of a violent attack; the dispute lay with whether or not defendant was the assailant. The trial court did not prejudice the defense with this remark. Defendant further argues that the trial court prevented the defendant from cross-examining Miss B as to the basis for her opinion that defendant was her attacker. The court’s ruling, however, did not have that effect. Defense counsel was free to pursue the matter if he chose to do so. The court did not prevent the defense from cross-examining the witness as to the basis for her expressed opinion. We find no error. VI. OPINION EVIDENCE Over objection, the trial court permitted the victim to state her opinion that the defendant was the person who attacked her on November 26, 1981. When the prosecutor asked for her opinion, the defendant objected and the trial court stated that the opinion would be admissible if it was coupled with the reasons for her opinion. The witness then testified that her opinion was based upon defendant’s knowledge of the layout of her house, the fact that he had been there before, and his conduct toward her when he later saw her at work. K.S.A. 60-456 reads in part: “(a) If the witness is not testifying as an expert his or her testimony in the form of opinions or inferences is limited to such opinions or inferences as the judge finds (a) may be rationally based on the perception of the witness and (b) are helpful to a clearer understanding of his or her testimony. “(c) Unless the judge excludes the testimony he or she shall be deemed to have made the finding requisite to its admission. “(d) Testimony in the form of opinions or inferences otherwise admissible under this article is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact.” In State v. Crumm, 232 Kan. 254, 262, 654 P.2d 417 (1982), we noted that this section vests a wide discretion in the trial court over the admission of lay opinion testimony. Miss B saw the attacker, heard his voice and observed the defendant both before and after the attack. Under the circumstances, we cannot say that the trial court abused its discretion in the admission of this lay opinion evidence. An attack on the basis for her opinion would go to the weight of her testimony and not to its admissibility. VII. DOUBLE JEOPARDY; SPEEDY TRIAL Defendant argues that subjecting him to a third trial placed him in double jeopardy. However, K.S.A. 21-3108 discusses the effect of former prosecutions. Subsection (4)(c) provides, however, that if subsequent proceedings resulted in invalidation, setting aside, reversal or vacating of the conviction, then a prosecution is not barred unless the defendant is adjudged not guilty. In this case the first jury was unable to agree and a mistrial was declared. The second jury convicted the defendant, but that verdict was set aside on the defendant’s motion. Clearly, the third trial was not barred under K.S.A. 21-3108 or upon any theory of double jeopardy. Defendant’s principal argument under this section of his brief is that he was not afforded a speedy trial under the provisions of K.S.A. 22-3402, which reads: “22-3402. Discharge of persons not brought promptly to trial. (1) If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within ninety (90) days after such person’s arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3). “(4) In the event a mistrial is declared or a conviction is reversed on appeal to the supreme court or court of appeals, the time limitations provided for herein shall commence to run from the date the mistrial is declared or the date the mandate of the supreme court or court of appeals is filed in the district court.” The first jury trial, admittedly held within the ninety-day limit established by the statute, ended in a mistrial when the jury was unable to agree upon a verdict. Automatically, then, the ninety-day time limit was reset by operation of 22-3402(4). The second trial was held within ninety days of the date the mistrial was declared, and that trial resulted in a verdict of guilty which was set aside and a new trial granted on defendant’s motion. Defendant argues that the second jury trial was a nullity, and in support of that argument he cites State v. Osburn, 216 Kan. 638, 641-42, 533 P.2d 1229 (1975), where we said:' “The theory is that when a new trial is granted on the motion of the defendant in a criminal prosecution, the granting of the same places the party accused in the same position as if no trial had been had.” (Emphasis supplied.) He argues that when the trial court granted defendant’s motion for a new trial (at the end of the second trial), the effect of that order, under Osburn, was to place defendant in the same position as if no (second) trial had been had. Thus, the second trial cannot be considered in determining compliance with the ninety-day statute. And since the third trial did not commence within ninety days of the date on which the (first trial) mistrial was declared, the third trial was out of time and defendant is entitled to be discharged since he was not afforded a speedy trial as required by the statute. K.S.A. 22-3402(4) does not specifically mention the granting of a new trial; the granting of a new trial, however, in this context is tantamount to a declaration of a mistrial. The granting of a new trial has the same effect as the granting of a mistrial by the trial court or the reversal of a conviction and the granting of a new trial on appeal. We hold that the statutory language, “In the event a mistrial is declared” in K.S.A. 22-3402(4), includes the granting of a motion for a new trial by a trial court. Thus, the State had ninety days from the granting of the new trial, at the end of the second trial, in which to bring the defendant to trial a third time, and it did so. The defendant is therefore not entitled to be discharged under K.S.A. 22-3402. Defendant has not shown that the delay has been prejudicial to him in the presentation of his defense and he does not argue that there has been a constitutional violation of his right to speedy trial. We find no constitutional violation of that right. VIII. JURY INSTRUCTIONS Defendant argues that the trial court erred in not instructing the jury on simple battery, K.S.A. 21-3412. The uncontroverted evidence was that Miss B’s assailant was armed with a knife, that she was beaten severely by the assailant, that the beating was inflicted by the hand which held the knife, and that she sustained a head wound or cut from the knife. The knife was described as having a curved blade, “almost four, four and a half inches” long. A deadly weapon is an instrument which, from the manner in which it is used, is calculated or likely to produce death or serious bodily injury. Black’s Law Dictionary 487 (4th ed. rev. 1968); and see State v. Killion, 95 Kan. 371, 379, 148 Pac. 643 (1915). Clearly, the knife used by Miss B’s assailant was a deadly weapon. Battery committed with a deadly weapon is aggravated battery. K.S.A. 21-3414(c). Also, battery which results in the infliction of great bodily harm upon the victim is aggravated battery. K.S.A. 21-3414(a). Miss B was savagely beaten and knocked unconscious. The defense in this case was alibi, defendant claiming that he was not at the scene and was not Miss B’s assailant. The only evidence before the jury was that the assailant used a knife (a deadly weapon), and that Miss B sustained severe injuries (great bodily harm). Thus, the defendant was either guilty of aggravated battery or he was not guilty. There was no evidence to support a simple battery instruction. The trial court did not err in failing to instruct the jury on the offense of simple battery. IX. THE CROSS-APPEAL By cross-appeal, the State contends that the trial court erred in sustaining the defendant’s motion to suppress evidence, a sketch book seized by officers during a search of defendant’s home. Since the case will not be retried, this issue is moot. The judgment of the district court is affirmed.	[ -16, -22, -3, -98, 9, 98, 42, 60, 113, -9, -9, 83, 45, -38, 1, 123, 58, 45, 84, 104, -37, -73, 51, -63, -74, -77, 91, -41, -77, 90, -76, -11, 78, -16, -62, -11, 6, -54, -59, 84, -114, 5, -103, -48, 67, -128, 60, 106, 116, 10, 49, 30, -13, 42, 26, -58, 73, 44, 75, 61, 80, -112, -62, 23, 95, 22, -77, -122, -99, 5, 88, 62, -104, -80, 0, -20, 115, -90, -126, -11, 109, -101, 12, 110, 98, 1, 53, -49, 44, -103, 46, 23, -99, -89, -104, 72, 65, 45, -106, -99, 117, 118, 10, -6, -29, 68, 29, 108, 7, -33, -80, -111, 13, 48, -110, -8, -13, 37, 48, 113, -49, -30, 92, 85, 89, -97, -114, -76 ]
The opinion of the court was delivered by Holmes, J.: EF Hutton & Company, Inc. (Hutton) appeals from a judgment entered upon a jury verdict in favor of the defendant and counterclaimant Gerald Heim. The trial court granted plaintiff summary judgment for $46,310.76 on its petition to recover on a promissory note executed by the defendant. Gerald Heim had admitted liability on the note but counterclaimed seeking damages for Hutton’s alleged negligence in erroneously reporting a commodity futures transaction on the Chicago Board of Trade (CBOT). The jury found for Heim on his counterclaim, awarded damages of $193,300.00 and assessed the fault or negligence 15% to Heim and 85% to Hutton. The trial court entered judgment upon the verdict for $164,305.00 and Hutton has appealed. The facts are complicated and will be set forth in some detail. Heim, a private investor, with approximately fifteen years’ experience trading in various commodities futures, opened a trading account with Hutton on April 19,1980. Heim designated Sam Atkins of Goetz Advisory Service (Goetz), a solicitor for Hutton of commodity orders in and around Park, Kansas, to handle orders for Heim’s account. When Heim desired to place a buy or sell order he would contact Sam Atkins with Goetz and give him directions. Goetz then telephoned the order to Hutton’s Kansas City office. The order was then relayed to Hutton in Chicago where a broker on the floor of the CBOT was contacted and given the order. When the floor broker had filled the order the notification process was reversed: floor broker to Hutton in Chicago, to Hutton in Kansas City, to Goetz in Park, Kansas, to Heim. The floor broker was not an employee of Hutton. Although Heim began trading with Hutton in commodities futures shortly after opening the account, the transactions leading to this appeal did not occur until the latter part of September, 1980. On September 22, Heim purchased contracts for 50,000 bushels of November soybeans at a price of $8,745 per bushel. Two days later, another 50,000 bushels of November soybeans were purchased at a price of $8.65 per bushel, and on September 26, a final 50,000 bushels were purchased at $8.30 per bushel. These contracts were purchased on margin, requiring Heim to put up only a small fraction of the actual cost. The transactions were reflected in his account with Hutton. Holding these “buy contracts,” Heim was in a “long position” on the November soybeans, standing to profit if the market price rose above his acquisition price and standing to lose money if the market price fell. The market, as so often happens, did not cooperate and the price of November soybeans fell throughout the remainder of September. Faced with this declining market and the corresponding loss on his November soybeans, Heim entered into a “spread,” or a “straddle,” in an attempt to mitigate his potential losses. A spread is an offsetting position designed to theoretically eliminate a trader’s risk during periods of uncertain market behavior. In this case, a proper spread required that Heim, holding buy contracts in a long position, sell additional soybean contracts short so that hopefully the loss sustained on one position as a result of market movement would be offset by a corresponding gain on the other position. Heim called Sam Atkins at Goetz at approximately 12:15 p.m. on September 29, and told him he wanted to sell contracts for 150,000 bushels of May soybeans. Ten minutes later Atkins called back and confirmed the sale at a price of $8.52 per bushel. A few minutes later, Heim again called Atkins and asked him to confirm the sale price on the May soybeans. In about ten minutes Atkins called Heim and advised “EF Hutton ha[s] confirmed the fill at $8.52.” During these calls Heim was watching a market quote screen in his home, and he observed the price of May soybeans reach a low of $8.42. Upon receiving verification of his sale at $8.52, Heim watched the market price begin to rise from its low of $8.42, and decided to buy at around $8.48 and take his profit on the short position. About 1:00 p.m. he called Atkins and placed a buy order for 150,000 bushels of May soybeans. Unfortunately, by the time the order was executed the price had risen above the $8.52 per bushel selling price originally quoted to Heim. Contracts for 50,000 bushels of May soybeans were purchased on Heim’s behalf at $8.66 per bushel, and 100,000 bushels were purchased at $8.68 thereby offsetting his May sell contract but resulting in a substantial loss on the May soybean transactions. As these transactions were represented to Heim, he believed he had first sold contracts for 150,000 bushels of May soybeans at a price of $8.52 per bushel, for a total of $1,278,000.00. The later buy contracts for 150,000 bushels of soybeans cost him $1,301,000.00. Having sold short in a rising market, it appeared Heim had lost $23,000.00. At the same time the November soybean market was falling and as a result he was also losing on his long position in that market. The actual loss, however, was greater. On the following day, September 30, 1980, Sam Atkins contacted Heim and advised that Hutton had called earlier that morning to “correct” the sale price of the May soybeans, previously quoted and confirmed at $8.52 per bushel, to $8.42. Contrary to Hutton’s representations on September 29, Heim’s sell contracts for 150,000 bushels of beans at $8.42 per bushel netted him only $1,263,000.00. His buy contracts at a cost of $1,301,000.00 left Heim with an actual loss of $38,000.00 for the previous day on the May transactions. Heim testified that had he known the actual price received on his sell contracts was $8.42 per bushel he would not have terminated his short position on September 29, presumably because the market never fell below that price. He also testified that on October 3, 1980, four days after these transactions, the low price recorded for May beans was $8,475 and had he waited to terminate his short position until that point, his loss would have been only $8,250.00, as opposed to $38,000.00. This, of course, presumes that he would have made the decision to sell at $8,475 rather than wait for the price to go even lower. As with many things, hindsight is always better than foresight when trading in the commodities market. The $38,000.00 loss sustained on the September 29 transactions when deducted from Heim’s account with Hutton, resulted in an insufficient margin to maintain Heim’s long position on the November soybeans. The “maintenance margin” is the amount of money required to be in a trading account in order to keep a contract, and a “margin call” is a request to the trader for payment of cash into the account in the amount necessary to meet the required margin. On September 30, the same day Hutton informed Heim of the corrected sale price, the company also issued a margin call in the amount of “$40 or $45,000” to restore the maintenance margin in Heim’s account. It appears he was dealing in a number of futures contracts at the time and Heim was unable to meet this margin call. On October 2,1980, Heim spoke on the telephone with Harold Saunders, Hutton’s regional sales manager in Kansas City, and Saunders told Heim to either place the required margin money in his account or liquidate his long position on the November soybeans. When asked what Hutton intended to do about the erroneous price quotation, Saunders replied “he was sorry, that they had made the mistake, but they weren’t going to do anything about it.” Unable to meet the margin call, and knowing Hutton could liquidate the account if he didn’t, Heim advised Sam Atkins to sell the November soybean contracts. 50,000 bushels were sold at $7.92 per bushel, and 100,000 bushels were sold at $7.91, resulting in additional losses on the November soybean contracts. Following Heim’s voluntary liquidation of his account on October 2,1980, there began a flurry of correspondence between the parties. Hutton was seeking payment of the amount owed while Heim was seeking more information as to why there had been an error in reporting the May soybean sales. Hutton maintained that while it was unfortunate that the error occurred it was not liable under the CBOT rules and regulations by which both parties were bound. In support of its position, Hutton sent Heim a copy of Regulation 331.01 which reads: “331.01 Price of Execution Binding — The price at which an order for commodites is executed on the Exchange shall be binding notwithstanding the fact that an erroneous report in respect thereto may have been rendered. A member shall not assume or pay any part of the difference between the price at which an order is executed and the price at which it may have been erroneously reported or make any adjustment with his customer because of an error in handling an order except as outlined in Regulation 350.04.” (Emphasis added.) A copy of Regulation 350.04 did not accompany the letter, nor was there any explanation of its contents. Relying on the regulation and numerous letters from Hutton, Heim executed on April 15, 1981, a promissory note due August 1, 1981 for $40,623.48, the amount allegedly owed on the margin account, together with interest at 10% per annum. When Heim was unable to pay the note Hutton filed suit and Heim counterclaimed for damages resulting from Hutton’s negligence in furnishing incorrect information about the May soybean transaction. He also admitted his obligation on the promissory note. It was not until the discovery stage in the proceedings below that Heim actually received a copy of CBOT Regulation 350.04, which states: “Errors and Mishandling of Orders — A Commission house becomes an agent for a customer in accepting an order and a floor broker becomes an agent upon accepting an order. Any loss resulting from an error or mishandling of an order for a customer must be borne by the commission house and/or the broker depending upon who made the error. Any profits resulting from the error or mishandling of an order belong to the customer. However, if the customer is fully informed and agrees to accept the agent’s guaranty of no loss to him from the error or mishandling, then the subsequent acts of the agent to limit or recoup any loss are for the account of the agent and not for the account of the customer.” (Emphasis added.) Prior to receiving a copy of this regulation in September, 1983, defendant Heim understood Regulation 331.01 placed on him, alone, the entire risk of any loss resulting from errors of Hutton and/or the floor brokers at the CBOT. With the foregoing facts and background we now turn to the various issues on appeal. Hutton’s first claim on appeal is that defendant Heim is bound by the regulations of the CBOT and that those regulations were disregarded by the trial court and the jury in awarding damages to Heim. There is no dispute the parties were bound by the CBOT regulations. Heim agreed to be bound by them when he signed his “Customer’s Agreement” with Hutton at the time of opening his trading account. Where a customer of a commodity broker signs an agreement in which he acknowledges that the transactions will be governed by the rules and regulations of the commodity exchange, those rules and regulations may properly be admitted into evidence in the customer’s suit against the brokerage firm. Meunier v. Conti Commodity Services, 374 So.2d 193 (La. App. 1979); see also Meyer, The Law of Stock Brokers and Stock Exchanges, Sec. 26 (1931); and 12 Am. Jur. 2d Brokers Sec. 119. The regulations involved here were admitted into evidence, and the trial court instructed the jury that “[a]ll parties in any way involved in commodity trading on the Chicago Board of Trade are bound by all rules and regulations of the Chicago Board of Trade.” The thrust of plaintiff s argument is that because defendant Heim is bound by the CBOT regulations he is barred from recovering on his counterclaim by virtue of Regulation 331.01, which states the “price at which an order for commodities is executed . . . shall be binding notwithstanding the fact that an erroneous report in respect thereto may have been rendered. . . .” The argument this forecloses any recovery by Heim must fail. Regulation 331.01 contains an express exception to the rule of nonliability. That exception is contained in Regulation 350.04, which on its face states that “[a]ny loss resulting from an error or mishandling of an order for a customer must be borne by the commission house and/or broker depending on who made the error.” Under this regulation, the trial court and the jury could find Heim was not barred from recovering for negligence on Hutton’s part. The point lacks merit. Hutton’s second issue on appeal is the trial court erred in denying plaintiff s motions for directed verdict and judgment notwithstanding the verdict or, in the alternative, for a new trial. Plaintiff argues the evidence at trial showed the September 29 commodity trade was erroneously reported by the CBOT floor trader over whom Hutton had no supervisory authority. For this reason Hutton urges that under the CBOT Regulations 331.01 and 350.04, the floor trader alone is liable to Heim for the resulting losses. In Sampson v. Hunt, 233 Kan. 572, 578, 665 P.2d 743 (1983), the Court stated: “In ruling on a motion for directed verdict pursuant to K.S.A. 60-250 the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and where the evidence is such that reasonable minds could reach different conclusions thereon, the motion must be denied and the matter submitted to the jury. The same basic rule governs appellate review of a motion for directed verdict. [Citations omitted.] The question is not whether there is literally no evidence supporting the party against whom the motion is directed, but whether there is evidence upon which the jury could properly find a verdict for that party. Even where facts are undisputed it is possible that conflicting inferences may be drawn from those facts, and where that is true, the issue must be submitted to the jury. [Citations omitted.] Where no evidence is presented on a particular issue, or the evidence presented is undisputed and it is such that the minds of reasonable persons may not draw differing inferences and arrive at opposing conclusions with reason and justice, the matter becomes a question of law for the court’s determination. [Citations omitted.]” In the context of this case, the question is: Was there any evidence upon which the jury could find Hutton liable for negligence in conveying to Heim the erroneous price quotation? We conclude there was and therefore find no error in the lower court’s denial of plaintiff s motions. While Hutton places great reliance on testimony of its own employees that the floor brokers were independent contractors, the jury evidently found otherwise. Although it is the customary practice for brokerage firms to entrust actual execution of their orders to other members, or floor brokers, of a particular exchange, it has been said: “[T]he ‘specialist’ or other floor broker so retained is the sub-agent of the customer’s broker and not the agent of the customer. His acts and omissions are deemed those of the customer’s broker, so far as the relations between the customer and the broker are concerned. The customer’s broker is responsible to the customer for a negligent or improper execution by the ‘specialist’ or floor broker.” (Emphasis added.) Meyer, The Law of Stock Brokers and Stock Exchanges, Sec. 122 (1931). See also 1 Black, The Law of Stock Exchanges, Stockbrokers and Customers, Sec. 333 (1940). Even if we were to agree that in the ordinary situation the floor broker is an independent contractor for whose negligent errors Hutton was not responsible, the facts of this case would also support a finding of negligence on the part of Hutton itself or a finding that Hutton ratified the floor broker’s act in erroneously reporting the price of the May soybean contract. Here, Heim, who had been monitoring the market at home, was evidently suspicious of the $8.52 per bushel quote and specifically requested Hutton to confirm the transaction. Hutton did nothing more than go back to the original floor broker who referred to his trading notes which contained the original error. He then reported back to Hutton the same erroneous information he had originally given and that information was accepted by Hutton as sufficient confirmation without using other informational sources available to independently confirm the transaction price. The jury having found Hutton 85% negligent and the Chicago floor brokers 0% negligent has resolved the fact issue against Hutton. The various motions were properly denied. Hutton’s third issue is that Heim’s execution of the April 15, 1981, promissory note constituted an accord and satisfaction which precludes any recovery bf Heim. The trial court instructed the jury on the law of accord and satisfaction and Hutton raises no complaint regarding the adequacy of those instructions. The jury clearly rejected Hutton’s theory, and that finding is now before us. A negative finding indicates that the party upon whom the burden of proof is cast did not sustain the requisite burden, and on appeal the negative finding will not be disturbed absent proof of an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice. Lostutter v. Estate of Larkin, 235 Kan. 154, 162-63, 679 P.2d. 181 (1984). Accord and satisfaction is an affirmative defense and must be proven by a preponderance of the evidence. Addis v. Bernardin, Inc., 226 Kan. 241, Syl. ¶ 1, 597 P.2d 250 (1979). In this case Hutton raised the claim, and thus bore the burden of proof. To constitute an accord and satisfaction, there must be an offer in full satisfaction of an obligation, accompanied by such acts and declarations or made under such circumstances that the party to whom the offer is made is bound to understand that if he accepts the offer, it is in full satisfaction of and discharges the original obligation. Lippert v. Angle, 215 Kan. 626, 630, 527 P.2d 1016 (1974). An accord and satisfaction, as an adjustment of a disagreement as to what is due from one party to another through payment of an agreed amount, must be consummated by a meeting of the minds and accompanied by sufficient consideration. Barnes v. Mid-Continent Casualty Co., 192 Kan. 401, 388 P.2d 642 (1964). Hutton’s claim the promissory note in this case constituted an accord and satisfaction lacks merit. It is undisputed that at the time defendant executed the note on April 15, 1981, he had not received a copy of CBOT Regulation 350.04 and was under the belief Regulation 331.01 forced him to bear the full risk of any losses resulting from the mistakes of Hutton or the floor trader. When Heim executed the note he was under the impression he had no further recourse against Hutton for his losses, but was simply indebted to the company for the debit balance in his margin account. Under these circumstances it is impossible to say the note was in satisfaction of an obligation from Hutton to Heim, when at that time Heim was not even aware such an obligation might exist. At no point was there the requisite “meeting of the minds” to support an accord and satisfaction, and the jury properly rejected Hutton’s argument. Ironically, the claim would be much more persuasive had Hutton fully disclosed both CBOT regulations in its letter to Heim on October 2, 1980, rather than merely the one regulation which created the mistaken impression the broker would not be liable in any case involving error. No error is shown on this issue. The last issue on appeal concerns the trial court’s instruction to the jury on the measure of damages. The instruction in question read: “If you find for the Defendant then you should determine the amount of damages that the Defendant is entitled to receive by ascertaining the best obtainable price for the particular commodity contract that would have existed during the thirty (30) day period following September 29. You will then determine the difference between the best obtainable price and the price actually received by the Defendant and such difference is the amount of damages to be awarded the Defendant. “The total amount of your verdict may not exceed the sum of $193,300.00, the amount of Heim’s claim.” We agree the instruction was erroneous. The trial court based the instruction on Shearson Hayden Stone, Inc. v. Perrier, 7 Kan. App. 2d 89, 638 P.2d 359 (1981). While Perrier unquestionably resembles the present case in many respects, there are also some crucial differences. Plaintiff Shearson Hayden Stone, Inc. was a brokerage firm suing one of its customers for the balance due on his commodities trading account. Defendant Perrier counterclaimed for damages. He had entered the market in a short position on feeder cattle with an initial margin requirement of $20,000.00. Within a few days, due to an increase in the price of cattle, his margin requirement had risen to $27,904.00. Defendant delayed payment of the margin call, and plaintiff took him out of the market by purchasing enough offsetting cattle contracts to cover the short position. These contracts were purchased at a price resulting in a $12,012.00 loss on the transaction. In plaintiff s suit to recover that amount, Perrier claimed he was entitled to damages for the broker’s “wrongful cover” of his short position. The trial court denied recovery to both parties, and the broker appealed. The Court of Appeals, on the assumption the plaintiff wrongfully purchased contracts to cover defendant’s short position, announced the following rule concerning damages: “[W]e hold it correct to say the measure of damages rule for a broker’s unauthorized and wrongful purchase to cover its customer’s short position in commodities futures trading is the difference obtained upon subtraction of (1) the lowest market price between (a) the time the customer has notice of the covering purchase and (b) a reasonable time thereafter for the customer to decide whether to go into the market to renew, or reinstate, his short position, from (2) the price paid to cover.” Perrier, 7 Kan. App. 2d at 95. Utilizing 30 days as a reasonable time under this rule, it was determined that Perrier suffered no loss as a result of the wrongful act of the broker and that the broker was entitled to recover the amount due on the margin account. Variations of the rule announced in Perrier have been applied in many jurisdictions and seems to have first been formulated by the Supreme Court in Galigher v. Jones, 129 U.S. 193, 32 L.Ed. 658, 9 S.Ct. 335 (1889), wherein the court stated: “[T]he measure of damages in stock transactions of this kind is the highest intermediate value reached by the stock between the time of the wrongful act complained of and a reasonable time thereafter, to be allowed to the party injured to place himself in the position he would have been in had not his rights been violated.” 129 U.S. at 200. See also Schultz v. Commodity Futures Trading Com’n, 716 F.2d 136 (2d Cir. 1983); Chipser v. Kohlmeyer & Co., 600 F.2d 1061 (5th Cir. 1979); Mitchell v. Texas Gulf Sulphur Company, 446 F.2d 90 (10th Cir. 1971); Letson v. Dean Witter Reynolds, Inc., 532 F.Supp. 500 (N.D.Cal. 1982); Kaufmann v. Delafield, 224 App. Div. 29, 229 N.Y.S. 545 (1928). However, in all of the cases we have found which apply the Perrier rule or some variation thereof, the broker has been guilty of some wrongful conduct such as conversion, fraud, fraudulent inducement or similar intentional tortious acts. Here we are faced with a case of simple negligence in the reporting to Heim. In Heim’s counterclaim he alleged only that Hutton “negligently furnished to the Defendant incorrect market information” on which Heim relied in making investment decisions. The issue is: What is the proper measure of damages to be awarded for a commodity broker’s negligent misrepresentation of the market pricé at which a trade was executed? We have found no Kansas cases on this point and relevant cases from other jurisdictions are few. However, those that have been reported involving negligence in a securities or commodities transaction employ the customary negligence rule of damages based upon proximate cause. In Tark v. Shearson/American Express, Inc., 123 Ill. App. 3d 75, 462 N.E.2d 610 (1984), plaintiff sued defendant, a securities broker-dealer, for negligent misrepresentation. Plaintiff was in a “long” position on cotton contracts in the commodities market. However, when the price of cotton went into a steep decline plaintiff was faced with a series of margin calls to secure that position. At one point plaintiff ordered Shearson to sell the securities remaining in his securities account and transfer the proceeds to his commodities account. The price of cotton futures continued to fall, and defendant demanded plaintiff deposit $16,000 in his commodities account. Unable to meet this margin, plaintiff ordered defendant to liquidate all the contracts in the commodities account. After beginning this liquidation, Shearson “ ‘found’ ” an additional $16,000 in the account from plaintiff s previous sale of securities, which had not been properly credited. The broker attempted to salvage the contracts plaintiff had ordered liquidated, but was able to recover only short contracts. At trial defendant conceded that if the proceeds from the sale of securities had been properly credited, defendant would not have issued the $16,000 margin call. Plaintiff argued he should recover his actual out-of-pocket losses. The trial court gave the jury an instruction requested by Tark, which is virtually identical to that sought by Hutton in this case: “If you decide for plaintiff on the question of liability, you must then fix the amount of damages which will reasonably and fairly compensate him for the losses plaintiff sustained as a result of defendant’s negligence.” The jury returned a verdict of $65,000. On appeal the broker challenged the instruction. In upholding the instruction, the appeals court stated: “In considering the measure of damages, we wish to make it clear that the record shows no evidence of wilful misconduct by the defendant or its agents. We are dealing here with a simple negligent error such as could happen during operation of any business. However, plaintiff is entirely without fault and he was simply led far astray by the mistaken information given to him by the broker. Undoubtedly plaintiff acted in reliance upon the erroneous impression he had thus received. As a result plaintiff suffered losses for which he should be properly compensated. “The operation of a commodities exchange and the activities resulting therefrom are simply a refined form of gambling. Thus, as negligent acts are unavoidable, it should be reasonably anticipated that losses of various kinds occur. Thus, courts have adopted diverse methods of fixing the measure of damages. As we would expect, the cases differ widely in formulating the measure of damages depending upon the varied factual backgrounds in the particular litigation before the court. [Citations omitted.] “[I]n the instant case, the instructions submitted by defendant in this regard were definitely not acceptable. The above given instruction, presented by plaintiff, is simple, clear and succinct and very close to the form suggested in the IPI. In our opinion, the careful trial judge had no alternative but to adopt the instruction tendered by plaintiff.” Tark, 123 Ill. App. 3d at 79-80. Analogous cases exhibit a similar approach. In Twomey v. Mitchum, Jones & Templeton, Inc., 262 Cal. App.2d 690, 731 n. 12, 69 Cal. Rptr. 222 (1968), a customer’s suit against an investment banking and stock brokerage business, the court held that for breach of the fiduciary relationship between the broker and customer, the proper measure of damages is “the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.” (Emphasis added.) The Florida Court of Appeal has held that a broker’s liability for negligence in handling a stock transaction is limited to the loss proximately caused by that negligence, and it will not be further liable for a subsequent decline in the value of other stock retained where the selection and purchase of that stock is attributable solely to the customer. Hayden, Stone Incorporated v. Brown, 218 So.2d 230 (Fla. Dist. App. 1969). In a breach of contract action against a brokerage firm for demanding margin from a customer far in excess of that authorized by their contract, the Texas Court of Civil Appeals upheld a verdict for the damages proximately caused by the brokers’ actions. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Miller, 401 S.W.2d 645, 647-48 (Tex.Civ.App. 1966); cf. Loeb, Rhoades & Co. v. Stanley, 541 S.W.2d 869 (Tex.Civ.App. 1976). The distinction recognized by the Illinois Appellate Court in Park, between wilful misconduct by a broker and its agents and simple negligence, is particularly appropriate in the present case.'The Perrier measure of damages holds the broker liable for fluctuations in the value of stock or commodities for a reasonable time after the customer has been deprived of ownership and control by the broker’s wilful misconduct. To apply that measure of damages where there has been no wilful misconduct or unauthorized assumption of control over the securities opens the broker to liability for fluctuations in value that are properly borne by the customer. The unfairness of such a rule is shown in this case. Clearly Hutton was negligent in misrepresenting the price at which the September 29 sell transaction occurred. Rut that conduct was neither claimed nor shown to be wilful or aggravated; nor was Heim ever deprived of his ownership of and right to control the commodities contracts as he saw fit. The application of the Perrier measure of damages to these facts allowed Heim to recover losses in the value of the commodities both prior to and for the thirty days following Hutton’s negligence. While we voice no opinion on the soundness of the Perrier rule in an appropriate case, we are convinced it does not apply in a case of ordinary negligence. Hutton requested an instruction based upon PIK Civ. 2d 9.40 in the following form: "If you find for the defendant, then you must award defendant such sum as you believe will fairly and justly compensate the defendant for the damages you believe defendant sustained as a result of the occurrence complained of by defendant.” We think the requested instruction was proper and should have been given along with other instructions appropriate in an action for negligence. In an action against a broker for negli gently reporting a stock or commodity transaction and where there was no wrongful conduct on the part of the broker (other than negligence), the proper measure of damages is the same as in any negligence action which does not involve intentional or gross and wanton conduct. As this case has been fully tried on the issues of liability and fault and as the only reversible error shown is in the proper measure and determination of damages, it will be remanded for a new trial solely on the issue of the amount of damages incurred by the defendant. The judgment of the trial court as to damages is reversed and the case is remanded for a new trial on the issue of damages only in accordance with the views expressed in this opinion.	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The opinion of the court was delivered by Schroeder, C.J.: This is an appeal in a criminal action from a jury verdict finding Yvonne D. Pink, Regina M. Baldwin and Erick L. Kelly (defendants-appellants) guilty of various felonies. All three defendants were jointly tried and convicted of one count each of first-degree (felony) murder (K.S.A. 21-3401) and two counts each of aggravated robbery (K.S.A. 21-3427). Baldwin and Pink were also convicted of two counts each of kidnapping (K.S.A. 21-3420), while Kelly was acquitted of this charge. Numerous issues are asserted on appeal. All three defendants contend the trial court erred by failing to disclose the identity of a paid Crimestoppers informant and by failing to grant a motion for judgment of acquittal. They also allege they were prejudiced by prosecutorial misconduct in the opening statement. Baldwin and Kelly contend the trial court erred by admitting certain out-of-court statements of Pink and Baldwin. Baldwin asserts, additionally, that the trial court erred in failing to sever the trials of the three defendants and in sentencing her under the Mandatory Firearm Sentencing Act (K.S.A. 21-4618) and that the sentence pronounced was not in compliance with the journal entry. Finally, Kelly asserts that he was denied his constitutional right of effective assistance of counsel. At approximately 1:30 a.m. on May 3,1983, a robbery occurred at Church’s Fried Chicken restaurant located at 1302 North Broadway in Wichita, Kansas. The three employees — Julie Rosenhamer, Debra Rogers, and Jerrell Bell — were preparing to close when two armed robbers entered the restaurant. One of the robbers wore a purple scarf over the face and the other wore no facial covering. One of the robbers ordered Rosenhamer and Rogers, who were standing in the front part of the restaurant, not to move. Bell, who was working in the kitchen, came to the front when he heard the commotion and saw the robber in the scarf holding a gun on Rosenhamer and Rogers. The second robber pointed a gun at Bell and started to move him to the back of the store. The robber in the scarf ordered Julie Rosenhamer to get the money, but when she started to move the robber shot her in the chest. Julie fell to the floor with what later proved to be a fatal wound inflicted by a .22-caliber bullet. Bell continued to move to the rear of the store as he was ordered; when he glanced back to the front he noticed the purple scarf had slipped from the robber’s face and so he was able to see the face. The second robber then placed Bell in the cooler, and, soon thereafter, Rogers was placed inside with him. A short time later, one of the robbers ordered Rogers to come out of the cooler and open the cash registers. Rogers opened one register and gave the robber the register tray. The robbers then took her into the office and asked her to open the safe, but she informed them that the only employee who knew the combination was the one who had been shot. Shortly thereafter, the robbers left by the back door while Rogers was still in the office. Upon their departure, Rogers let Bell out of the freezer and they called the police. Before leaving with the police, Bell and Rogers noticed that a key ring which held keys to the restaurant was missing from where it usually hung by the back door. Also missing was Rogers’ purse. Two cash register drawers and a purse were located adjacent to the Kellogg Street overpass at 1-135 by a member of the Kansas Department of Transportation. These items were submitted into evidence at trial. The cash drawers were identified as the missing drawers from Church’s. Rogers identified the purse as her own. When these items were discovered, the money was gone from the drawers and the purse; also missing from the purse were some pearl earrings and a necklace belonging to Rogers. The total amount of cash taken from the restaurant was $118.29. Bell and Rogers, in separate interviews with the police, described the robbers as a black male and a black female. Bell described the robber with the scarf who shot Rosenhamer as a female, between 5'4" and 5'6", wearing a purple scarf over her face and a blue bandana over her head. Bell described the robber who had led him to the cooler as a man who might have had a very light mustache wearing a waist-length leather jacket. Bell was able to prepare composite drawings of both robbers. Rogers also believed the robber in the scarf was a female, but did not recall that she wore a blue bandana. Rogers described the “man” as wearing a long, brown leather coat. Rogers recalled hearing the robber in the scarf refer to the other as “Earl.” Rogers was able to prepare a composite of the “man” only, as she never saw the face of the other robber. Both Bell and Rogers were shown photo line-ups on several occasions. One of the line-ups contained pictures of Pink and Baldwin, but neither Bell nor Rogers was able to make an identification from the mugshots. At both the preliminary hearing and at trial, Bell and Rogers each made positive in-court identifications. Bell identified Baldwin as the person in the scarf and Pink as the person in the leather coat. Rogers identified Baldwin as the robber in the leather coat. Both Bell and Rogers testified that after seeing the defendants they realized they had been mistaken in thinking the robber in the leather coat was a man. Defendant Kelly was present at the preliminary hearing, but neither Bell nor Rogers testified as to having seen him the night of the robbery. After the preliminary hearing, Bell contacted the police to inform them that he remembered seeing Kelly outside Church’s shortly before the robbery. At trial, Bell testified that he was adjusting a mirror in the lobby shortly before the robbery. While adjusting the mirror, he saw the defendant Kelly standing in the lot next to the store; Bell watched Kelly for a while because Kelly was not moving to enter the restaurant. When Kelly saw Bell watching him, he walked away. Bell made a positive in-court identification of Kelly. On May 16, 1983, a confidential informant contacted the Crimestoppers office. This contact eventually led the investigation in a direction that ended with charges against the defendants. The exact nature of the information and the identity of the informant were never disclosed. The evidence at trial indicated that at some point after receiving the tip, the police contacted Donald Hicks and Kim Walker because their vehicle had been connected with the robbery. Both Hicks and Walker spoke to the detectives about their knowledge of the defendants. Hicks and Walker were living at the Sunset Motel in April and May of 1983. One night Kelly came to their room and asked to borrow their car. Walker remembers that Baldwin and Pink came in shortly after Kelly and all three returned together sometime later. Hicks remembers seeing only Kelly that night. Walker testified that when they returned they were carrying a lot of change wrapped in a newspaper. She observed that Baldwin had a .22-caliber pistol. She also noticed that someone had laid a set of pearl earrings and a drop pearl necklace on the dresser. She saw Kelly with some “green” money with which he and Hicks left in order to purchase drugs. Walker testified that while the men were gone, she heard Pink say to Baldwin, “I said don’t move and they moved, so I shot them.” Baldwin’s only response was to shrug her shoulders. Later, after the men had returned, they all watched television. When the news report on the Church’s Chicken robbery was broadcast, someone turned up the volume. Walker admitted that she had been sleeping off the effects of amphetamines and alcohol when these events took place. Both she and Hicks were uncertain as to the day and time the events occurred. On May 18, 1983, the police went to a liquor store owned and operated by Baldwin’s mother to contact Baldwin and Pink for questioning. Broken keys on a key ring, later identified as the restaurant’s missing keys, were found in a pocket of Baldwin’s waist-length, brown leather jacket. When Pink was interviewed, she provided an alibi that at the time of the robbery she was with Baldwin after having helped her close the liquor store; she denied ever having ridden with Kelly and Baldwin in Hicks’ car. When police contacted Baldwin’s mother, she said Pink never worked in the liquor store. Baldwin consented to a search of her home, which produced a blue bandana that Bell later testified looked very much like the scarf the robber who shot Rosenhamer had worn over her hair. None of the defendants testified at trial. Testimony was received from several State’s witnesses as to self-incriminating statements made by Pink and Baldwin. The contents of such testimony and any additional facts will be developed when necessary to discuss the issues raised. I. Each of the three defendants challenge the court’s refusal to compel the State to disclose the identity of the Crimestoppers confidential informant. They claim disclosure is required by K.S.A. 60-436 and that failure to disclose violates their constitutional right to confront witnesses. The term “Crimestoppers” is used to describe the Wichita Crime Stoppers Program Inc., a not-for-profit Kansas corporation organized in 1980. Private funding supplies money which is used to pay rewards for information about crime. The media is used to inform the public of unsolved crimes and to inform them of the reward program. The advertising emphasizes that the informer need not give his or her name in order to collect the reward for information helpful in solving a crime. Officers of the Wichita Police Department answer all calls. In the case at bar, a confidential informant reported information about the Church’s Chicken homicide-robbery. The informant did not give his or her name to the detectives who answered the call, although one of the detectives recognized the informant from a prior contact. At a pretrial discovery hearing, the court received testimony from the two detectives and heard argument from counsel. The court then made an in camera inspection of the telephone logs of the Wichita Police Depart ment, audio tapes of conversations of the informant with police, and a written transcript of these conversations. The court found that the information provided by the informer was used for no other purpose than to focus the investigation in a direction that led to the arrest of these defendants. The information was not used as any part of the probable cause basis for the arrest warrant, nor was any search warrant utilized based on this information. The informant was not endorsed as a witness. The informant received a total reward of $1,000 for the information. Based on all the information, the court denied the discovery request, but ordered that if the informer became a witness at trial then the fact that such person was a Crimestoppers informant, along with all statements relating to this case by such informer, would be furnished to the defendants. The “informer’s privilege” is codified in K.S.A. 60-436, which provides: “A witness has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a provision of the laws of this state or of the United States to a representative of the state or the United States or a governmental division thereof, charged with the duty of enforcing that provision, and evidence thereof is inadmissible, unless the judge finds that (a) the identity of the person furnishing the information has already been otherwise disclosed or (b) disclosure of his or her identity is essential to assure a fair determination of the issues.” The defendants on appeal claim that under subparagraph (b) of the statute, and under various constitutional provisions, they have been denied a fair trial. We disagree. The rationale for the “informer’s privilege” was discussed in the leading case of Roviaro v. United States, 353 U.S. 53, 1 L.Ed.2d 639, 77 S.Ct. 623 (1957). The court found that the privilege is founded upon public policy and seeks to protect the public interest in effective law enforcement; it recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law enforcement officers, and, by preserving their anonymity, encourages them to perform that obligation; the privilege is designed to protect the public interest and not to protect the informer. 353 U.S. at 59-60. The Roviaro court noted that two varieties of informers exist: those who provide the police with information that establishes probable cause, and those who actually participate in or observe criminal activity. Generally, the court is not required to disclose the identity of informers in the first category. See McCray v. Illinois, 386 U.S. 300, 18 L.Ed.2d 62, 87 S.Ct. 1056 (1967); State v. Robinson, 203 Kan. 304, 454 P.2d 527 (1969); State v. Braun, 209 Kan. 181, 495 P.2d 1000, cert. denied 409 U.S. 991 (1972). The court formulated a balancing test that is to be applied to determine whether the identity of informers in the second category should be disclosed. The test requires weighing the public interest in protecting the flow of information and the individual’s right to prepare his defense. Factors to be considered include the crime charged, the possible defenses available and the possible significance of the informer’s testimony. Roviaro, 353 U.S. at 62. See also State v. Knox, 4 Kan. App. 2d 87, 603 P.2d 199 (1979). It has long been the rule of this court that it is incumbent upon the defendant to show that the identity of the informer is material to his defense. State v. Braun, 209 Kan. at 186. The defendants have failed to show that the informer in this case fell within the second category and was material to their defense. The defendants argue that they cannot establish the necessary materiality without knowing who the informer is or what information was provided. They each speculate how the information or identity might benefit their defense. However, speculation and suspicion regarding what an informant might possibly testify to is not sufficient to require disclosure. United States v. Halbert, 668 F.2d 489 (10th Cir. 1982); United States v. Buras, 633 F.2d 1356 (9th Cir. 1980). Although this evidentiary burden which is placed on the defendants appears to be very harsh, it is eased by the in camera disclosure to the court. If the judge had found a reasonable probability that the informant could give needed testimony, the government would have been required to disclose the informant’s identity. Knox, 4 Kan. App. 2d at 99. However, the judge found in camera that the informant’s testimony was not needed on the issue of guilt or innocence. This matter was properly within the discretionary power of the trial court. The decision will not be overturned absent an abuse of that discretion. State v. Nirschl, 208 Kan. 111, 115, 490 P.2d 917 (1971). Discretion is abused only where no reasonable man would take the view adopted by the court; if reasonable men could differ as to the propriety of the action taken by the court, then it cannot be said the court abused the exercise of its discretion. State v. Wilkins, 220 Kan. 735, 556 P.2d 424 (1976). We can find no abuse in the exercise of discretion either in the court’s decision or in the manner in which the court reached its decision. The Tenth Circuit has held that an in camera hearing on the discoverability of an informer, conducted without the presence of the defendant or his counsel, is not an abuse of discretion. United States v. Perez-Gomez, 638 F. 2d 215 (10th Cir. 1981). Also, it is immaterial that a judge other than the one who presided at trial ruled on this preliminary matter. We are satisfied that the informant was a mere “tipster” whose information precipitated the investigation that led to the defendants’ arrest. That fact alone is insufficient to compel disclosure of the information. United States v. Buras, 633 F.2d 1356; Bourbois v. United States, 530 F. 2d 3 (5th Cir. 1976); State v. Grider, 206 Kan. 537, 479 P.2d 818 (1971). There was no error in the trial court’s refusal to disclose the informant’s identity. II. Each of the defendants allege they were prejudiced by certain statements made by the prosecutor in his opening argument. Each defendant frames his or her argument in a different manner and each complains of different comments made by the prosecutor. Pink’s argument is simply that she was prejudiced by these comments. Baldwin argues the court erred in overruling the defendants’ motion to preclude the prosecutor from making comments about out-of-court statements of Pink and Kelly. Kelly argues that the comments denied him his constitutional right to confront witnesses. Based on these arguments, we must determine if the comments made by the prosecutor, when taken as a whole, were so prejudicial as to deny any of the defendants a fair trial. Each of the defendants complains about the following comments: that Kelly made some unspecified statements to a man named Archie Henderson “about his, Erick Kelly’s, involvement”; a contact by codefendant Baldwin to the Alcohol, Tobacco and Firearms Agency on the evening of May 2 about a gun belonging to codefendant Kelly which was for sale; the relationship by which Baldwin related to Pink “basically as a man.” Additionally, Pink complains of the prosecutor’s statement that a scarf found in Baldwin’s room was recognized by Bell and that there would be evidence that the codefendants borrowed a car on the night of the robbery. Baldwin objects to the comments about Pink admitting to having shot someone (these statements were admitted into evidence at trial). Kelly additionally complains that he was prejudiced by the statements concerning Bell’s observation of him the night of the robbery and by the summarization of Bell’s and Walker’s testimony in final argument. Prior to the opening statement, Pink’s counsel requested the court to order the prosecutor not to mention anything which might be inadmissible under the Bruton rule and counsel for Baldwin joined in the motion. The court overruled the motion. The State argues that the defendants have not preserved this issue for appeal as they failed to make contemporaneous objections during the prosecutor’s opening statement and final argument. We cannot agree as to the opening statement. The defendants did not know which comments the prosecutor would fail to establish through the evidence at trial; therefore, they could not have known when to object. However, defendant Kelly also complains of certain statements made during closing argument. His failure to contemporaneously object to statements in the final argument precludes his complaint on appeal. State v. Watkins, 219 Kan. 81, 87-88, 547 P.2d 810 (1976). Having reviewed the prosecutor’s opening statement, we find there was no prejudice to any of the defendants caused by the opening statement. The jury was instructed that statements of counsel were not to be considered as evidence. We must assume the jury followed this instruction and disregarded any remarks of counsel which were not later established by the evidence. State v. Fleury, 203 Kan. 888, 896, 457 P.2d 44 (1969). Absent substantial prejudice to the rights of the defendant, there must be a showing of bad faith on the part of the prosecutor before relief may be granted as a result of a prosecutor’s reference in his opening statement to matters not provable or which he does not attempt to prove during the trial. State v. Woods, 218 Kan. 163, 542 P.2d 319 (1975); State v. Campbell, 210 Kan. 265, Syl. ¶ 9, 500 P.2d 21 (1972). See also 1 ABA Standards for Criminal Justice, Prosecution Function, Standard 3-5.5. We find the prosecutor made a good faith effort to present all evidence alluded to in his opening remarks. The defendants have failed to meet their burden of showing bad faith. Baldwin objects to comments concerning statements made by Pink to third parties about a shooting. These statements were offered and entered into evidence at trial. There is no prejudice suffered by the defendant (Baldwin) in regard to these comments which were established by the evidence. State v. Hill, 211 Kan. 287, 297-98, 507 P.2d 342 (1973). III. The codefendants Baldwin and Kelly each challenge the admission of out-of-court statements made by Pink and Baldwin respectively. The admissibility of these statements has been challenged upon grounds of hearsay and the confrontation clause within the meaning of Bruton v. United States, 391 U.S. 123, 20 L.Ed.2d 476, 88 S.Ct. 1620 (1968). A hearing was held prior to the admission of any of this testimony into evidence. The court ruled that this was not a Bruton situation and allowed the testimony of Kim Walker, Youlanda Burrell, Karen Sherman and David Strong along with limiting instructions to the jury that each codefendant’s statements about which the witnesses testified could only be used in considering the charges against that codefendant. Kim Walker testified that after the three defendants returned on the night they borrowed her husband’s (Hicks’) car, she heard Pink say to Baldwin, “I said don’t move and they moved so I shot them.” Walker further testified that Baldwin responded by shrugging her shoulders. The court instructed the jury that this testimony was to be considered only in regard to the charges against Pink. Both Baldwin and Kelly objected at trial and claim error on appeal. Youlanda Burrell, defendant Pink’s cousin, testified that Pink told Burrell that she (Pink) had done something she should not have done — she had shot someone. Soon after saying this, Pink told Burrell she had been lying. Burrell also testified that Pink later told her that when she closed her eyes she could see the girl fall. Karen Sherman, Burrell’s roommate, testified that Pink made a similar statement to her about seeing a girl fall. The trial court again instructed the jury that these statements could only be used in considering the charges against Pink. Both Baldwin and Kelly objected and now claim error. Kelly also objects to the testimony of David Strong. Strong’s testimony was that sometime after the robbery, he had gone with Pink and Baldwin to retrieve a gun which belonged to him and which some man had. The man wanted $200 for the gun. Strong refused to pay that amount and Baldwin told him that the gun was “hot” and that the gun had been used and that Baldwin needed Strong to get the gun back. Strong asked why the gun was “hot” and Pink told Baldwin she shouldn’t be talking. Strong then exclaimed that the next thing Baldwin would tell him was that the gun was used at Church’s. Baldwin said “no” and left. The trial court instructed the jury that these statements could only be used in its deliberations against Baldwin. Defendants Baldwin and Kelly argue that these statements are highly incriminating to them, that it is impossible for the jury to follow the limiting instruction, and, therefore, their right to confrontation has been violated within the meaning of Bruton v. United States, 391 U.S. 123. In Bruton, the Supreme Court held that an accused’s right of confrontation, secured by the Sixth Amendment to the United States Constitution and applied to the states through the Fourteenth Amendment, is violated when the confession of a codefendant, implicating the accused, is received in evidence in a joint trial, even though the trial court admonishes the jury not to consider the confession in determining the guilt or innocence of the accused. In Bruton, the statement admitted was a post-arrest confession to the police in which the codefendant stated the defendant (Bruton) had been his accomplice in an armed robbery. In reversing Bruton’s conviction, the court reasoned: “[B]ecause of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner’s guilt, admission of . . . [the] confession in this joint trial violated petitioner’s right of cross-examination secured by the Confrontation Clause of the Sixth Amendment.” 391 U.S. at 126. The court also stated that “[n]ot every admission of inadmissible hearsay or other evidence can be considered to be reversible error unavoidable through limiting instructions . . . . [Citations omitted.] It is not unreasonable to conclude that in many such cases the jury can and will follow the trial judge’s instructions to disregard such information.” 391 U.S. at 135. Based on this language, courts interpreting Bruton have limited it to its facts. See Dutton v. Evans, 400 U.S. 74, 85-90, 27 L.Ed.2d 213, 91 S.Ct. 210 (1970); United States v. Brock, 667 F.2d 1311 (9th Cir. 1982); United States v. Kiefer, 694 F. 2d 1109 (8th Cir. 1982). Similarly, this court has held that the Bruton rule does not apply to all extrajudicial statements by codefendants introduced in a joint trial. See State v. White & Stewart, 225 Kan. 87, 587 P.2d 1259 (1978). In the case at bar, it is undisputed that the statements admitted were hearsay. However, they fall within an exception to the hearsay rule and, accordingly, were properly admissible against the declarants as statements against interest. This exception is found in K.S.A. 60-4600) which provides: “Evidence of a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated is hearsay evidence and inadmissible except: “Declarations against interest. Subject to the limitations of exception (Q, a statement which the judge finds was at the time of the assertion so far contrary to the declarant’s pecuniary or proprietary interest or so far subjected the declarant to civil or criminal liability or so far rendered invalid a claim by the declarant against another or created such risk of making the declarant an object of hatred, ridicule or social disapproval in the community that a reasonable man in the declarant’s position would not have made the statement unless the man believed it to be true.” Each of the statements was inadmissible hearsay to the codefendants other than the declarant. Recognizing this, the court limited the jury’s consideration of the statements to the respective declarant. Up to this point, Bruton is indistinguishable: Bruton involved a confession which was admissible against the declarant but not against the codefendant, so the court admitted it along with a limiting instruction. However, in Bruton, the statements admitted explicitly referred to and incriminated the codefendant. It is this point that distinguishes Bruton. In none of the statements admitted in the present case did the declarant mention either of her codefendants. Bruton rights are violated only by admission of extrajudicial statements implicating the complaining defendants. In a case such as this where a statement does not directly allude to the defendants, no rights are abridged. United States v. Heffington, 682 F.2d 1075 (5th Cir. 1982); United States v. Castro, 596 F.2d 674 (5th Cir.), cert. denied 444 U.S. 963 (1979). This was not a situation where the prejudicial effect of the statements was great enough to make it impossible for the jury to comply with the limiting instruction. Here, we can assume that the jury did follow the instruction. Therefore, this was not a Bruton situation and no error was committed. Baldwin’s contention that she was prejudiced by Walker’s testimony deserves a special note. Walker testified that in response to what Pink said about the shooting, Baldwin shrugged. This shrug was clearly a statement against her own interest. Therefore, Walker’s testimony fell within a hearsay exception as to Baldwin. See K.S.A. 60-460(j). Where the incriminating admissions are admissible against the defendant under the rules of evidence, Bruton is inapplicable. Folston v. Allsbrook, 691 F.2d 184 (4th Cir. 1982). We also note that defendant Kelly’s reliance on State v. Myers, 229 Kan. 168, 625 P.2d 1111 (1981), is misplaced. In Myers, the State sought to admit a hearsay statement made by the defendant’s deceased accomplice which implicated the defendant. This statement was to be used in considering the charges against the defendant — it was not a joint trial where the statement was admitted along with a limiting instruction to not consider it as to the defendant. This court in Myers found that, although there was a hearsay exception through which to admit the statement, its admission would violate the defendant’s Sixth Amendment right to confront witnesses. In the present case, the right of confrontation has been protected through the use of the limiting instruction. The court did not err in admitting the statements. IV. Defendant Baldwin alleges the trial court erred in failing sua sponte to order severance when the Bruton problems became apparent. We have already determined there were no Bruton problems. Moreover, the defendant failed to request a severance and under K.S.A. 22-3204 such failure is deemed a waiver to the right of severance. State v. Pham, 234 Kan. 649, 651, 675 P.2d 848 (1984). This issue is without merit. V. Each of the defendants contend the trial court erred by failing to grant their post-trial motions for judgment of acquittal. All three defendants allege there was insufficient evidence to sup port the verdict as to the element of identity. Defendant Baldwin also claims there was insufficient evidence to support the kidnapping conviction. In a criminal action, when the defendant challenges the sufficiency of the evidence to support a conviction, the standard of review on appeal is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The appellate court looks only to the evidence in favor of the verdict to determine if the essential elements of the charge are sustained. State v. Pham, 234 Kan. at 667-68; State v. Douglas, 230 Kan. 744, 745-46, 640 P.2d 1259 (1982). Each of the defendants was identified in court by one or both of the victims. In the instructions, the jury was cautioned on the reliability of eyewitness identifications. It is the jury’s function, and not an appellate court’s, to weigh evidence and pass on the credibility of witnesses. State v. Holt, 221 Kan. 696, 561 P.2d 435 (1977). Aside from the in-court identifications, considerable evidence, albeit circumstantial, linked the defendants with the crime. A conviction of even the gravest offenses may be sustained by circumstantial evidence. State v. White & Stewart, 225 Kan. 87, Syl. ¶ 14. The victims, Walker, Burrell and Sherman, all gave testimony that linked the three defendants to the crime. The jury was instructed on the weight and credit to give witnesses. They chose to believe the State’s evidence. We have reviewed all of the evidence and find that, even though the evidence was not overwhelming, it was sufficient to support the jury’s verdict. Likewise, we find there was sufficient evidence to support the verdict convicting Baldwin of two counts of kidnapping. The two robbers first placed Bell in the cooler and then Rogers, while they set about robbing the restaurant. They later removed Rogers so she could help them open the cash registers. K.S.A. 21-3420 provides in pertinent part: “Kidnapping is the taking- or confining of any person, accomplished by force, threat or deception, with the intent to hold such person: “(b) To facilitate flight or the commission of any crime. The forcible moving of the victims to the cooler in order to facilitate the robbery was clearly a kidnapping within the meaning of the statute and State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976). VI. Defendant Baldwin next contends that the sentence pronounced by the trial judge did not match the sentence in the journal entry insofar as the imposition of the Habitual Criminal Act. She alleges the court erred by failing to reform the journal entry and, therefore, she should receive the minimum available sentence. Defendant Baldwin does not contest the fact that the prosecution requested the application of the Habitual Criminal Act in sentencing, that defense counsel stipulated to the prior felony conviction, or that counsel for defendant and prosecution specifically argued the application and practical effect of the Habitual Criminal Act to the defendant’s Class A and Class B convictions. We have read the statement made by the trial judge in sentencing Baldwin and find it clear that the court doubled the maximum Class B penalties in each of the Class B sentences by virtue of the Habitual Criminal Act, and did not double the Class A penalty because doubling a life penalty would be an exercise in futility. Baldwin argues that the court sentenced without enhancement under the Habitual Criminal Act. The defendant’s position is 'simply not supported by the record. The journal entry correctly reflects the sentence as imposed at the sentencing hearing. VII. Defendant Baldwin’s final contention is that the court erred in imposing the provisions of the Mandatory Firearm Sentencing Act as to the murder count. She claims that since evidence demonstrates Pink fired the only bullet, Baldwin was a mere accomplice and did not use a firearm in the commission of this crime as contemplated by the provision of K.S.A. 21-4618 which provides: “(1) Probation or suspension of sentence shall not be granted to any defendant who is convicted of the commission of the crime of rape, the crime of aggravated sodomy or any crime set out in article 34 of chapter 21 of the Kansas Statutes Annotated in which the defendant used any firearm in the commission thereof and such defendant shall be sentenced to not less than the minimum sentence of imprisonment authorized by law for that crime. This section shall apply only to crimes committed after the effective date of this act. This section shall not apply to any crime committed by a person under eighteen (18) years of age.” (Emphasis added.) Baldwin was convicted as a principal to the crime of felony murder. The evidence established that both robbers were armed. The sentencing court specifically found that both robbers used a firearm in the commission of these crimes. We will not disturb this finding as it is supported by competent evidence. State v. Mack, 228 Kan. 83, 85, 612 P.2d 158 (1980). VIII. Finally, defendant Kelly raises (for the first time) on appeal that he was denied his constitutional right to effective assistance of counsel. Kelly cites certain acts and omissions which resulted in allegedly inadequate representation including failure to request severance, the waiver of an opening statement, abbreviated closing statements and inadequate efforts in cross-examination. The State maintains that since the trial court was never given an opportunity to consider this issue, it is not properly before the appellate court. This rule is stated in State v. Porter, Green & Smith, 228 Kan. 345, 615 P.2d 146 (1980). However, in order to prevent a denial of fundamental rights, we may consider this issue on appeal. State v. Puckett, 230 Kan. 596, 598-99, 640 P.2d 1198 (1982). Since defendant Kelly received a new court-appointed counsel to represent him on appeal, we think it best serves the ends of justice to consider this issue raised by the newly appointed counsel. In the recent case of Chamberlain v. State, 236 Kan. 650, 694 P.2d 468 (1985), this court adopted the two-part test of Strickland v. Washington, 466 U.S._, 80 L.Ed.2d 674, 104 S.Ct. 2052 (1984), to determine whether a criminal defendant has received effective assistance of counsel under the Sixth Amendment as follows: “A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction requires that the defendant show, first, that counsel’s performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. “(a) The proper standard for judging attorney performance is that of reasonably effective assistance, considering all the circumstances. When a convicted defendant complains of the ineffectiveness of counsel’s assist anee, the defendant must show that counsel’s representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel’s performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. “(b) With regard to the required showing of prejudice, the proper standard requires the defendant to show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.” 236 Kan. 650, Syl. ¶ 3. In Strickland, the court said that the first component of the test — determining whether counsel’s performance was deficient - need not be considered before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. 80 L.Ed.2d at 699. The court made it clear that the burden is upon the defendant to establish both requirements of the test, and that failure to establish one precludes any finding of ineffective assistance of counsel. The ultimate focus is the fundamental fairness of the challenged proceeding; in each case “the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process.” 80 L.Ed.2d at 699. Accordingly, if we can determine in this case that Kelly received a fair trial, then we need not conclude that his counsel’s conduct was or was not unreasonable. Here, it appears the mistakes complained of were slight and that, even without the alleged mistakes, the defendant would have been convicted based upon the evidence against him. Specifically, the failure to request severance was harmless error because the five grounds for severance recently stated in State v. Martin, 234 Kan. 548, 673 P.2d 104 (1983), were not present in this case. The defense counsel’s decisions to reserve his opening statement and to abbreviate his closing arguments were reasonable defense tactics. See State v. Crossman, 229 Kan. 384, 390, 624 P.2d 461 (1981). Further, after reviewing the record we cannot find the defense counsel was inadequate in cross-examining witnesses, or, if he was, that his prejudiced the defend ant. All witnesses were extensively examined by both counselors for the two codefendants as well as being examined by Kelly’s attorney. Moreover, there was sufficient evidence to support Kelly’s conviction. Therefore, we find that the result of this proceeding would have been the same even without the alleged errors. The defendant was not denied his Sixth Amendment right to effective assistance of counsel. The judgment of the lower court is affirmed.	[ -48, -24, -7, -68, 56, -30, 34, -98, 34, -126, -78, 83, -87, -61, 21, 125, 116, 125, 84, 105, -102, -73, 7, 33, -78, 115, -45, -60, -78, 74, -89, -12, 72, 112, 70, 93, 102, -56, -61, 92, -120, -121, -88, -10, 113, 6, 52, 122, -76, 7, -79, 28, -93, 104, -98, -58, -24, 40, 91, 45, 112, -7, -54, 13, -17, 16, -125, 36, -66, 7, -8, 55, -104, 49, 0, 40, 115, -122, -118, 84, 125, -117, 12, 46, 98, 16, 88, -55, 104, -95, 46, 127, -107, -89, -104, 1, 64, 5, -106, -97, 109, 22, 3, 116, -25, 30, 25, -20, -119, -33, -80, -111, -115, 52, 26, -6, -7, 55, -128, 113, -52, 98, 94, 103, 113, -73, -50, -11 ]
The opinion of the court was delivered by Prager, J.: This is a dispute between the owners of various interests in four adjacent oil leases. Plaintiffs are the owners of working interests in the oil leases. Plaintiffs sued E. W, “Woody” Roberts, d/b/a Quivera Oil Company, the operator of the lease; the purchaser of the production; the royalty owners; and certain lien claimants. Plaintiffs sought a restraining order, the removal of the operator, the appointment of a receiver, and relief by way of money damages based upon fraud and conversion. Simply stated, the plaintiffs maintained that defendant Roberts had commingled oil from 60 different wells on the four leases and had not accounted to the plaintiffs for their share of the oil. The defendants, Donald M. Kendrick and Dorothy Kendrick, owned a 2.73% overriding royalty interest in two of the leases. They are not owners of a working interest. After they were made defendants in the case, the Kendricks filed a cross-petition asserting their 2.73% overriding royalty interest and alleging con version of their oil by all of the plaintiffs and the other defendants. The Kendricks sought a decree quieting their title and an accounting for their share of the oil which they claimed had been withheld from them. The various plaintiffs filed answers and cross-claims against the Kendricks alleging, in substance, that the Kendricks had actually received more oil royalty payments than they were entitled to and seeking to recover from the Kendricks the overpayments which had been made to them. At the time the action was commenced, the court issued a restraining order preventing Roberts from disposing of any interests in the leasehold estate and further restraining defendant Eureka Crude Purchasing, the purchaser of production, from paying any royalty moneys to any persons other than the landowners and to suspend payments from those with overriding royalty interests. The court later modified this order by requiring Eureka to pay to the various owners their share of the royalties including those with overriding interests. The court appointed Thomas A. DeVore as receiver for the leasehold interests. After the receiver was appointed, the Kendricks moved to intervene and were permitted to do so. They were then joined as additional defendants by the plaintiffs. In their amended cross-petition, the Kendricks sued all plaintiffs and all defendants except certain lien claimants, pleading causes of action for conversion, an equitable accounting, and to quiet title. The Kendricks also alleged negligence and vicarious liability against all owners of working interests and violation of Kansas securities laws against defendant Roberts. As can easily be seen, the litigation was quite complex and involved many issues of fact and law. The record discloses extensive discovery with many preliminary motions filed and determined. The court sustained the unopposed motion of the Kendricks to quiet title to their 2.73% overriding royalty interest in two of the leases. The Kendricks then moved the court to sever all their claims as set forth in their cross-petition from the claims raised by all the other parties and to grant them a separate trial thereon. This motion was eventually sustained. During the course of the litigation, the receiver took possession and operated the oil leases, locating an additional tank battery in order to separate the oil production from the four leases. The oil proceeds were paid for a period to the receiver who paid sums due certain lien claimants, thus preventing foreclosure of various liens. In order to avoid the expense of litigation, all of the plaintiffs and all of the defendants, except the Kendricks, settled their various claims and causes of action against each other. On the motion of those parties, all claims other than those involving the Kendricks were dismissed with prejudice. The claims involving the Kendricks were to proceed with discovery and to be set for a separate trial. The trial court, after approving the settlement agreement, terminated the receivership. The settlement agreement provided for an operating committee of the owners of the working interests to oversee and operate the leases. The receiver submitted his final accounting which was approved by the court. The district court ordered the receiver to pay $10,000 into court to be utilized in adjusting the various claims remaining in the case. It should be emphasized that the various plaintiffs, as owners of the working interests, were entitled to possession of the leases and to operate them. The Kendricks, as owners of an overriding royalty interest, had no right to operate the oil leases, only the right to receive their overriding royalty payments of 2.73%. Following the trial court’s order terminating the receivership and discharging the receiver, the Kendricks appealed. At the outset, the court is faced with a question as to the jurisdiction of the Supreme Court to hear this interlocutory appeal. The plaintiffs and the other appellees contend that this court has no jurisdiction, because the interlocutory orders appealed from are not appealable orders under the Kansas Civil Code. The statute which governs appeals from judgments of the district court is K.S.A. 60-2102. It provides as follows: “60-2102. Invoking jurisdiction of court of appeals, (a) As of right. Except for any order or final decision of a district magistrate judge, the appellate jurisdiction of the court of appeals may be invoked by appeal as a matter of right from: “(1) An order that discharges, vacates, or modifies a provisional remedy. “(2) An order that grants, continues, modifies, refuses, or dissolves an injunction, or an order that grants or refuses relief in the form of mandamus, quo warranto or habeas corpus. “(3) An order that appoints a receiver, or refuses to wind up a receivership or to take steps to accomplish the purposes thereof, such as directing sales or other disposal of property, or involving the tax or revenue laws, or the title to real estate, or the constitution of this state, or the constitution, laws or treaties of the United States. “(4) A final decision in any action, except in an action where a direct appeal to the supreme court is required by law. In any appeal or cross-appeal from a final decision, any act or ruling from the beginning of the proceedings shall be reviewable. “(b) Other appeals. When a district judge or associate district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, said judge shall so state in writing in such order. The court of appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten (10) days after the entry of the order under such terms and conditions as the supreme court may fix by rule. Application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or associate district judge or an appellate court or a judge thereof shall 50 order.” There has been no final determination of the claims asserted by the Kendricks and against them by the other parties which were severed for trial by the court below. Thus, this is not an appeal from a final decision in the action authorized by K.S.A. 60-2102(a) (4). The Kendricks have not taken an appeal from an order that discharges, vacates, or modifies a provisional remedy or an order that grants, continues, modifies, refuses, or dissolves an injunction, or an order that grants or refuses relief in the form of mandamus, quo warranto or habeas corpus under sections (a)(1) and (a)(2) of K.S.A. 60-2102. Nor has an order been entered under K.S.A. 60-2102(b). Under section (a)(3), an interlocutory appeal may be taken from an order that appoints a receiver, or refuses to wind up a receivership or to take steps to accomplish the purposes thereof. In this case, the receivership was granted on the motion of the plaintiffs, as owners of the working interests, because of the commingling of oil and the failure to pay lien claimants who were threatening foreclosure of their liens. After the receiver had carried out the directions of the court to separate the oil production from the four leases and had taken care of the financial obligations necessary to prevent foreclosure, the trial court ordered that the receiver be discharged. At that time, by agreement of all owners of the working interests, the possession of the leases was to be transferred to the owners of the working interests who were entitled to operate the leases. Under the factual circumstances present here, we have concluded and hold that this was not a proper case for an interlocutory appeal by the Kendricks. The Kendricks, by order of the court, have been afforded a full opportunity to litigate any and all claims which they have against the plaintiffs and the other defendants and any cross-claims asserted by those parties against the Kendricks. When all of those issues are finally determined, the Kendricks have the right to.take an appeal from the final judgment entered in the case. In any such appeal, any act or ruling from the beginning of the proceedings affecting the interests of the Kendricks are reviewable under the provisions of K.S.A. 60-2102(a)(4). The appeal is dismissed for want of jurisdiction. Schroeder, C.J., not participating.	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The opinion of the court was delivered by Lockett, J.: This is an appeal from the judgment of the Shawnee County District Court affirming the order of the Kansas Board of Tax Appeals denying the owners of certain farm machinery and equipment a tax exemption which they claim is authorized by K.S.A. 1983 Supp. 79-20U and 79-201j. Kansas Farm Bureau, Inc., intervened in support of the application of the taxpayers for exemption before the Board of Tax Appeals and joined with the taxpayers as a plaintiff in the appeal to the district court and in this appeal. Merl Yakel, Bob' and Doris Wright, and Robin and Laurie Wright (custom cutters) are owners of certain farm machinery and equipment. They are engaged in the business of providing custom combining services to farmers in Kansas and other states. They charge a standard rate for their services, based on acreage, bushels cut, and the market price that year. While Yakel owns farm land and uses his equipment occasionally on that land, the other taxpayers do not own farmland and use their farm machinery to harvest grain only on land possessed by others. The Farmers Co-operative (Co-op), owned by individuals in Kearney and Hamilton counties, also sought an exemption for the fertilizer equipment which they own. An individual automatically becomes a member of the Co-op if he or she uses the equipment and/or purchases enough goods from the Co-op. The Co-op rents its fertilizing equipment to farmers based on a per acre charge or the amount of product used. In addition to leasing equipment, the Co-op also handles grain, and sells fuel, fertilizer, feed and chemicals. The Co-op filed a claim for exemption from ad valorem taxes for its fertilizer equipment. The Board of Tax Appeals (BOTA) denied the application for exemption. Co-op filed a motion for rehearing which BOTA granted. BOTA then allowed the Co-op to intervene in a separate action involving the custom cutters. BOTA conducted the hearing and again denied the exemption request. On appeal, the Shawnee County District Court affirmed BOTA’s order. After the parties had perfected their appeal, the matter was transferred to this court. The issue on appeal relates to the construction of 79-20U and 79-20lj. The taxpayers contend that, under the clear wording of these statutes and in harmony with the legislative intent, the farm machinery and equipment involved is entitled to an exemption from the property tax because it was actually, regularly and exclusively used in farming and ranching operations. BOTA contends that use, in and of itself, does not entitle the property to exemption and that the exemption will be withheld unless the personal property is actually and regularly used exclusively in farming or ranching operations by the owner of the machinery and equipment on land where he is the owner, tenant or sharecropper. BOTA determined the legislature intended that the owner of the machinery and equipment “have a significant tie to the land,” and that the machinery must be owned by those who actively engage in farming and ranching operations, not those who provide a service to individuals engaged in farming and ranching operations. K.S.A. 1983 Supp. 79-20H states: “Purpose for farm machinery and equipment property tax exemption. It is the purpose of K.S.A. 1982 Supp. 79-201J of this act to promote, stimulate and develop the general welfare, economic development and prosperity of the state of Kansas by fostering the growth and development of agricultural endeavors within the state. Agriculture, as conducted in farming and ranching operations throughout the state, is the primary basis of the Kansas economy. Communities, regions, and the state as a whole are materially dependent upon agricultural endeavors and derive substantial financial benefit from the success of Kansas agriculture. Farming and ranching operations require the investment of large sums of capital for the purpose of providing the land on which the operations are conducted, and the farm machinery and equipment necessary to satisfactorily carry out such endeavors. Because of agriculture’s unique requirements of substantial capital investment, the property tax burden becomes a deterrent to such investment and, in some instances, an encouragement to farm and ranch abandonment. Kansas, and all its citizens, will benefit from any improvement in the economic environment of Kansas agriculture. The exemption from the ad valorem property tax of farm machinery and equipment actually and regularly used in farming and ranching operations will constitute an incentive to agriculture and will improve the general economy of the state. Considering this state’s heavy reliance on agriculture, the enhancement of agricultural endeavors is deemed to be a public purpose which will promote the general welfare of the state and be for the benefit of the people of the state.” (Emphasis supplied.) K.S.A. 79-201j states: “Property exempt from taxation; farm machinery and equipment. The following described property, to the extent specified by this section, shall be exempt from all property or ad valorem taxes levied under the laws of the state of Kansas: “All farm machinery and equipment. The term farm machinery and equipment’ means that personal property actually and regularly used exclusively in farming or ranching operations. The term ‘farm machinery and equipment’ shall not include any passenger vehicle, truck, truck tractor, trailer, semitrailer or pole trailer, other than a farm trailer, as the terms are defined by K.S.A. 8-126 and amendments thereto. “The provisions of this section shall apply to all taxable years commencing after December 31, 1982.” (Emphasis supplied.) The facts in this case are essentially uncontroverted. The taxpayers are the owners of farm machinery and equipment. The taxpayers’ farm machinery and equipment is actually and regularly used exclusively in farming and ranching operations. Whether the statute requires that the one requesting the exemption be the owner of the equipment and also be the owner, tenant or sharecropper of the land on which it is used, thereby having a significant tie to the land, is a question of law. Where the interpretation of a statute is a question of law, it is the function of the court to interpret the statute to give it the effect intended by the legislature. State, ex rel., v. Unified School District, 218 Kan. 47, 542 P.2d 664 (1975). The purpose and intent of the legislature governs when that intent can be ascertained from the statute. Szoboszlay v. Glessner, 233 Kan. 475, 664 P.2d 1327 (1983). Words in common usage are to be given their natural and ordinary meaning in arriving at a proper construction of the statute. Stephens v. Van Arsdale, 227 Kan. 676, 608 P.2d 972 (1980). When a statute is susceptible of more than one construction, it must be construed to give expression to its intent and purpose, though such construction is not within the strict literal interpretation of the statute. In re Birdsong, 216 Kan. 297, 532 P.2d 1301 (1975). When construing requests for exemptions from ad valorem and property taxation, the following rules of construction apply: Constitutional and statutory provisions exempting property from taxation are to be strictly construed against the one requesting exemption. In re Board of Johnson County Comm'rs, 225 Kan. 517, 519, 592 P.2d 875 (1979). All doubts concerning exemption are to be resolved against the exemption in favor of taxation. Trustees of The United Methodist Church v. Cogswell, 205 Kan. 847, 851, 473 P.2d 1 (1970). The burden of establishing exemption from taxation is on the one claiming it. Lutheran Home, Inc., v. Board of County Commissioners, 211 Kan. 270, 505 P.2d 1118 (1973). Simply stated: Taxation is the rule, exemption is the exception. BOTA first determined that 79-20U asserted the purpose of the exemption to be the broad principle of promoting economic development and prosperity of the state by fostering growth and development of agricultural endeavors within the state. It concluded that agricultural endeavors not only include preparation of the soil, planting, raising and harvesting, but in addition, they include processing the products for consumption, sale of the products to the consumer, the science of understanding the nature and preparation of the soil, design and production of farm equipment and machinery, sale of machinery and equipment to the user and other related services. BOTA noted that after the statute stated the broad principle of promoting prosperity for agricultural endeavors, the statute then focused on farm and ranching operations in Kansas. The statute acknowledged that farm and ranching operations require large sums of capital to purchase and use farm and ranch land. Because of agriculture’s unique requirement of substantial capital, the burden of paying taxes on farm machinery and equipment deters the investment in land and encourages farm and ranch abandonment. The statute states that the public purpose is to promote the general welfare of the state and to benefit the people of the state by exempting from the ad valorem and property tax farm machinery actually and regularly used in farming and ranching operations. BOTA reasoned that 79-201j, when enacted, exempted only farm machinery and equipment actually and regularly used exclusively in farming and ranching operations. This section did not refer to the all-encompassing phrase “agricultural endeavors,” but avoided that phraseology in stating the statutory exemption. Instead of the broad phrase, the legislature restricted and limited the exemption to only that machinery and equipment which was “actually and regularly used exclusively in farming and ranching operations.” Taxpayers claim that over the years agriculture has changed: because of the high cost of machinery and equipment, it has become necessary for some who farm the land to hire others to till the soil, spray, and harvest the crops; those individuals who provide this service also have enormous investments in farm machinery and equipment; the custom cutters’ machinery and equipment are actually, regularly and exclusively used in farming and ranching operations, and therefore, they also are entitled to the exemption. The taxpayers claim that unless they receive the exemption, payment of the tax will be passed on to the farmers or ranchers who possess the fields and contract for the taxpayers’ services. BOTA argues that while the taxpayers use their machinery and equipment in farming and ranching operations, the taxpayers do not possess the land upon which the operations were conducted. The taxpayers use their machinery to provide a service for a fee on land possessed by others. Machinery and equipment used to provide a service is not personal property actually and regularly used exclusively in farming or ranching operations and is, therefore, not entitled to the exemption. We have discussed the phrase “used exclusively” in many cases. See Clements v. Ljungdahl, 161 Kan. 274, 167 P.2d 603 (1946); State, ex rel., v. Security Benefit Ass’n. 149 Kan. 384, 394, 87 P.2d 560 (1939); Trustees of the United Methodist Church v. Cogswell, 205 Kan. 847. The phrase, “used exclusively” in the Constitution and statutes means that the use made of the property sought to be exempt from taxation must be solely and purely for the purpose stated and without admission to participation in any other use. Seventh Day Adventist v. Board of County Commissioners, 211 Kan. 683, 690, 508 P.2d 911 (1973). Based on the rules of statutory construction and case law as to the property tax exemption, we must agree with BOTA. The legislature used the phrase “farming and ranching operations” in the statutes. That phrase is a more limited term than the comprehensive term “agricultural endeavors.” In 79-20U, where the legislature outlined the purpose behind the exemption, it used the phrase “agriculture, as conducted in farming and ranching operations.” The whole emphasis of the section is on farming and ranching operations, implying an intent by the legislature to limit the exemptions strictly to those who actually farm or ranch. BOTA points out two prior cases that control. We agree. In Stahl v. Educational Assoc'n, 54 Kan. 542, 38 Pac. 796 (1895), property owned by a nonprofit corporation, a tax-exempt educational institution, was leased to a tenant. All the rents and profits from the rental property were used by the corporation exclusively for educational purposes. The court denied exempt status to the rented property, reasoning that when property was rented to a tenant, it was subject to taxation the same as any other rented property because it was no longer exclusively used by the tax-exempt educational institution. In In re Board of Johnson County Comm’rs, 225 Kan. 521, 592 P.2d 875 (1979), real and personal property owned by a for-profit corporation was leased to a nonprofit corporation, a hospital. The owner of the property, a corporation organized for profit, sought to exempt the leased property because the property leased was actually and regularly used exclusively by the hospital. The property owner contended if such property was subject to ad valorem and property taxes, it would be a detriment to the tax-exempt entity as it, not the owners, would bear the ultimate burden of paying the taxes. We determined that the renting by the lessor and the physical use of the property by the lessee constituted a simultaneous use of the property. When an owner leases his property to another, he cannot be the one using the property. When property owned by a non-tax-exempt entity is leased for profit to a qualifying tax-exempt entity, it is not being used exclusively for tax-exempt purposes and is subject to ad valorem or property taxes. Here the custom cutters and the co-operative are using their equipment and machinery in a service for fee business. The co-operative charged a fee for the use of its equipment. When the co-operative rents its equipment to an individual farmer for use on his fields, there are two simultaneous uses being made of the equipment: (1) by the farmer fertilizing his fields and (2) by the co-operative collecting a rental fee for the use of the machinery. The custom cutters point out they not only furnish the farm machinery and equipment but also operate the machinery and equipment on the farmer’s or rancher’s land. They claim if one owns and operates there can be no simultaneous use of the machinery. We disagree. The custom cutters are attempting to create a distinction without a difference. Even though the custom cutters own and operate their machinery, they are providing a service to the farmer or rancher. Had the legislature intended to exempt all farm and ranch machinery and equipment, it could have done so, but did not. The custom cutters are compensated for their services. They charge according to their cost in order to insure a profit. While this cost is eventually paid by the farmer or rancher, this is true for any product purchased or service received by the farmer or rancher. The 1984 legislature knew of BOTA’s denial of exemptions to custom cutters and those who leased farm machinery and equipment. Senate Bill 589 was introduced to resolve this problem. The proposed bill would have amended 79-201(j) to include leased equipment as exempt and allow an exemption for equipment used by custom cutters. The Senate Committee on Assessment and Taxation passed the bill on March 2, 1984, and sent it to the House where it was assigned to the Committee on Assessment and Taxation. The House committee voted to remove leased machinery from the bill, and then voted against reporting the bill out of committee. Taxpayers claim that no weight can be given to the proposed changes; that any presumption which may arise from such amendment can only be given weight if the amendment is actually enacted into law. This is not necessarily true. Silence by the legislature may give rise to an implication as to legislative purpose. The fact that the bill died in committee implies that the legislature intended not to exempt such machinery. At the least, it implies that the legislature did not intend to include an exemption for such equipment in the original amendment. Taxpayers claim that BOTA’s interpretation of 79-201j creates an unconstitutional classification of property because classification is based on ownership and not on use of the property. When reviewing constitutionality of a statute this court must presume the statute is constitutional, all doubts must be resolved in favor of the statute’s validity, and before a statute may be stricken down it must be clearly shown that it violates the Constitution. It is the court’s duty to uphold the statute under challenge, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. State ex rel. Stephan v. Martin, 230 Kan. 747, 641 P.2d 1011 (1982); Von Ruden v. Miller, 231 Kan. 1, 642 P.2d 91 (1982); City of Wichita v. Kansas Corporation Commission, 225 Kan. 524, 592 P.2d 880 (1979). It is not for this court to determine whether a prescribed method of taxation is wise, but to determine whether the classification is reasonable and rests upon some ground or difference having a fair and substantial relation to the object of the legislation so that all persons similarly circumstanced shall be treated alike. So long as a classification is reasonable and a tax is uniform and equal as to all subjects of the class, the statute is constitutional. Classifications may be based on differences recognized in the business world, or upon well-grounded considerations of public policy. In this case, the legislature has made a classification based on direct use by farmers and ranchers in their own operations. Other types of uses are excluded. This is a valid classification based on types of businesses and public policy. Topeka Cemetery Ass’n v. Schnellbacher, 218 Kan. 39, 542 P.2d 278 (1975); Associated Rly. Equipment Owners v. Wilson, 167 Kan. 608, 208 P.2d 604 (1949). In another chapter of the Kansas statutes, the legislature has defined “farming” as the cultivation of land for the production of agricultural crops, the raising of poultry, the production of eggs, the production of milk, the production of fruit and other horticultural crops, and grazing or the production of livestock. See K.S.A. 1983 Supp. 17-5903(g). It states specifically that farming does not include a contract to provide spraying, harvesting, or other farm services. A recognized rule for determining legislative intent is that ordinarily identical words or terms used in different statutes on a specific subject are interpreted to have the same meaning in the absence of anything in the context to indicate that a different meaning was intended. Callaway v. City of Overland Park, 211 Kan. 646, 652, 508 P.2d 902 (1973). Based on the preceding rule and the statute, farming would be the cultivation of land for the production of agricultural products and grazing or the production of livestock, not providing a service to those who work the land. We hold that property owned by a non-tax-exempt entity (Co-op) and leased for profit to a qualifying tax-exempt entity is not being used exclusively for tax-exempt purposes and is subject to ad valorem and property taxes. We also hold that property owned by a non-tax-exempt entity (custom cutters) which provides a service for profit to a qualifying tax-exempt entity is not being used exclusively for tax-exempt purposes and is subject to ad valorem and property taxes. The judgment is affirmed. Herd, J., concurs in the result.	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The opinion of the court was delivered by Miller, J.: Plaintiff, Carol Bonewell, broke her leg while sliding into home plate during a softball game at Riley Field, in Derby, Kansas. She brought this action against the City of Derby and the Derby Jaycees, Inc. (hereafter, the Jaycees), for damages which she claims she sustained because of their negligence in the maintenance of the ballfield. The trial court sustained motions of the defendants for summary judgment, and plaintiff appeals. Riley Field is a part of Riley Park, a,public park owned and maintained by the City of Derby. Since 1976, the Derby Jaycees have administered the softball leagues, which play their games on Riley Field, under a rather loose arrangement with the City Park Board. The November 22, 1976, minutes of that Board merely state that “Meidinger [a member of the Board] reported that Jaycees have agreed to manage” the men’s softball league. This is apparently the only written entry concerning the matter. The Jaycees thereafter organized the leagues for both men and women, scheduled the games, collected entry fees from the teams and fees for signboard advertising, selected the umpires and paid them if they did not volunteer their services, and ran the softball program in an administrative capacity. The fees collected were used to pay umpires and to improve the field. The public was admitted to watch the games without charge. The concession stand at the park was operated by another person under contract with the city, and the Jaycees had nothing to do with that. The City was responsible for the maintenance of Riley Field, including watering the outfield, mowing it, dragging the infield, and maintaining the stands and the lights. At the start of each season, home plate and the pitcher’s rubber, together with anchors for the bases, were set in place by a joint effort between the City and the Jaycees. During the season, the bases (first, second and third) were removed after each evening’s play and were kept in a storage shed. The pitcher’s rubber and home plate, however, remained in place throughout the season. The bases, home plate, the pitcher’s rubber, the storage shed, and all equipment were the property of the City. If a base was damaged during play, the umpire could call for a replacement, and one would be brought in from the storage shed and installed. The Jaycees bought new bases as needed, and were reimbursed by the City. Plaintiffs injury was sustained during a regularly scheduled softball game on June 4, 1980. Those provisions of the Kansas Tort Claims Act which are relevant to this proceeding are stated in K.S.A. 1980 Supp. as follows: “75-6102. Definitions. As used in K.S.A. 1979 Supp. 75-6101 to 75-6116, inclusive, unless the context clearly requires otherwise, the following words and phrases shall have the meanings respectively ascribed to them herein: “(a) ‘State’ means the state of Kansas or any office, department, agency, authority, bureau, commission, board, institution, hospital, college, university or other instrumentality thereof. “(b) ‘Municipality’ means any county, township, city, school district or other political or taxing subdivision of the state. “(c) ‘Governmental entity’ means and includes state and municipality as hereinbefore defined. “(d) ‘Employee’ means any officer, employee or servant or any member of a board, commission or council of a governmental entity, including elected or appointed officials and persons acting on behalf or in service of a governmental entity in any official capacity, whether with or without compensation, but such term shall not include an independent contractor under contract with a governmental entity. The term ‘employee’ shall include former employees for acts and omissions within the scope of their employment during their former employment with the governmental entity. (Emphasis supplied.) “75-6103. Liability for damages of governmental entities for employee acts or omissions, when; applicable procedure, (a) Subject to the limitations of this act, each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state. “(b)(1) Except as otherwise provided in this act, either the code of civil procedure or, subject to provision (2) of this subsection, the code of civil procedure for limited actions shall be applicable to actions within the scope of this act. Actions for claims within the scope of the Kansas tort claims act brought under the code of civil procedure for limited actions are subject to the limitations provided in K.S.A. 1980 Supp. 61-1603. “(2) Actions within the scope of the Kansas tort claims act may not be brought under the small claims procedure act. “75-6104. Same; exceptions from liability. A governmental entity or an employee acting within the scope of his or her employment shall not be liable for damages resulting from: “(n) any claim for injuries resulting from the use of any public property intended or permitted to be used as a park, playground or open area for recreational purposes, unless the governmental entity or an employee thereof is guilty of gross and wanton negligence proximately causing such injury . . . .” 75-6102 and -6104 have since been amended, but the amendments do not change materially the language here involved. The trial court held that Riley Field is a public park intended, permitted and in fact used for recreational purposes within the meaning of 75-6104(n); that the City of Derby is a municipality and governmental entity within the meaning of 75-6102(b) and (c); and that the Derby Jaycees, Inc., was at all times and for the purposes of this case an employee of the City, acting within the scope of its employment, within the meaning of 75-6102(d) and -6104. The court then concluded that both the City and the Jaycees were immune from tort liability pursuant to 75-6104(n). It sustained the motions for summary judgment of both defendants. Plaintiff contends that the trial court erred in sustaining the motions for summary judgment for two reasons. First, plaintiff claims that Riley Field is not a “public property intended or permitted to be used as a park, playground or open area for recreational purposes.” Second, it contends that Derby Jaycees, Inc., was not an employee of the City under the definition included within 75-6102(d). We look first to the character of Riley Field. It is owned by the City, and is within the confines of Riley Park, a public park. The Field’s use for softball games is obviously a recreational purpose. Plaintiff argues, however, that the public is excluded from the field while games are in progress; that the field may then be used only by those persons playing on the league teams; and that the field thus loses its public character and becomes semi-private. This is too restrictive a view. The public finds recreation by watching the games, and members of the public who are on the teams participate in the recreational activity. The same argument could be made as to public tennis courts, to which some members of the public are denied access while others play tennis thereon, or to shelter houses in public parks, to which some members of the public are denied access while others, having made previous arrangements, hold family picnics or reunions therein. The ball diamond in Riley Park was obviously built with the intent that it be used by the public as a ball field, which is a recreational purpose. We find no merit to this argument. Plaintiff also argues that the exception provided by 75-6104(n) should be construed to apply only to injuries resulting from natural conditions of public property, and that here injuries occurred due to a dangerous artificial condition that existed, a defective home plate. In support of this contention, she relies upon Coleman v. Edison Tp., 95 N.J. Super. 600, 232 A.2d 187 (1967). That case is factually similar to this one. The New Jersey court found that Coleman had not been injured by the use of any public grounds, but instead had been injúred because of defective equipment brought to the park — a defective home plate. However persuasive the New Jersey court’s reasoning may be, we think the issue was resolved in our case of Willard v. City of Kansas City, 235 Kan. 655, 681 P.2d 1067 (1984). Willard sought damages for injuries sustained when he collided with a chain link fence around a baseball field in a Kansas City park. The trial court granted summary judgment, holding the City immune from liability under 75-6104(n). We affirmed, holding that, in the absence of evidence establishing gross and wanton conduct, the City was immune from liability. Regardless of what causes an injury sustained in a public park, a claimant in this state must offer evidence of gross and wanton negligence; mere negligence on the part of a governmental entity is not sufficient to establish a compensable claim under the statute. We do not recognize the artificial condition or equipment exception which forms the basis of the New Jersey court’s opinion in Coleman. The trial court was correct in sustaining the City’s motion for summary judgment. Finally, we turn to the claim that the Jaycees were not employees of the City — or the Jaycee Corporation was not an employee of the City — within the definition of 75-6102(d). The Jaycees did not have a lease; they were not granted the exclusive use of any property; they did not have a concession; they were not responsible for the maintenance or upkeep of the field. The City retained actual control over the care and maintenance of the area. The Jaycees simply scheduled softball games during the summer months and, in fact, organized the recreational use of Riley Field. We have carefully considered the cases cited by plaintiff, Warren v. City of Topeka, 125 Kan. 524, 265 Pac. 78 (1928); Gage v. City of Topeka, 205 Kan. 143, 468 P.2d 232 (1970), and other authorities cited. An extended discussion of those cases would not be helpful to the plaintiff s cause or aid in the understanding of our opinion here. We find the cases supportive of the trial court’s ruling, not the plaintiff s theory. The statute now before us, 75-6102(d), provides us with a broad definition of “employee.” It includes persons acting on behalf or in service of a governmental entity in any official capacity, whether with or without compensation. The only exclusion from the definition is that of an independent contractor, and clearly the Jaycees do not fall within that exception. The Jaycees were simply assisting the City in carrying out the public purposes for which Riley Field was built and maintained. The Jaycees, in our opinion, clearly fall within the statutory definition of “employee.” We conclude that the trial court was correct in so holding. The judgment of the district court is affirmed. Prager, J., concurring.	[ -80, 108, -35, -52, 31, 66, 40, -114, 59, -111, 119, 87, -19, -49, 9, 124, 35, 109, 84, 111, -45, -77, 51, -125, -112, 83, -13, 95, -77, 111, -16, -11, 76, 80, 10, -43, -58, 74, -59, 22, -114, -74, 43, -48, -47, 64, 44, 59, 34, 94, 16, -121, -5, 40, -68, -29, -22, 44, 89, 61, 81, 112, -118, -107, -4, 20, -94, -123, -66, -93, -54, 56, 16, 52, 9, -24, 83, -92, -126, 117, 45, -71, 13, -93, 35, 33, 60, -81, -24, -71, 14, 83, -97, -90, -79, 25, 99, -119, -76, -99, 87, 16, 64, -18, -25, 69, -36, 44, 11, -54, -108, -111, 79, 68, -46, 76, -21, 39, 53, 65, -52, -30, 93, -123, 50, 19, -36, -38 ]
The opinion of the court was delivered by McFarland, J.: This is an appeal by the defendant railroad, Burlington Northern Railroad Company, from a judgment for $434,000 entered against it in favor of the plaintiff, Sylvester Gaulden. The plaintiff, a former employee of the railroad, brought this action to recover damages for personal injuries under the provisions of the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq. (1982) (FELA). This is the second time the case has been before this court. In the appeal from the first jury trial herein, this court reversed the $750,000 judgment against the railroad for failure of the trial court to submit the issue of the negligence of a third party to the jury. (Gaulden v. Burlington Northern, Inc., 232 Kan. 205, 654 P.2d 383 [1982]). The appeal now before us arises from the jury trial held upon remand. Defendant railroad contends the jury’s verdict finding zero fault on the part of the third party (Jack A. James) was contrary to the evidence and the court’s instructions and that the verdict was excessive. The facts may be summarized as follows. During the nighttime hours of November 22, 1979, a switching operation was being conducted by defendant railroad in Augusta, Kansas. The engine involved was pushing eleven tank cars at a speed of three to five miles per hour. As the train passed over a switch 575 feet west of the State Street crossing, warning flashing lights were activated at the crossing. Plaintiff was serving as a brakeman at all relevant times herein. He was riding on the north side of the lead tank car. He was carrying a walkie-talkie radio for communication with the engineer, a heavy coat, and a lantern. Grant Vance, serving as head brakeman, was riding on the south side of the lead tank car. A head brakeman is required to flag the intersection from the ground during switching operations such as this. No one flagged the intersection. Jack A. James was operating his 1972 Ford pickup truck in a southerly direction on State Street at a speed of 20 to 25 miles per hour. As he approached the flashing intersection lights, he stopped or paused (the evidence is conflicting), then accelerated into the intersection. Realizing a collision between the lead tank car and the truck was imminent, plaintiff jumped from the tank car, severely injuring his knee when he landed on the pavement. The train struck the rear panel of the pickup truck. Defendant railroad contends the jury’s verdict finding zero fault on the part of the truck driver, Jack A. James, was contrary to the evidence and the court’s instructions. In particular, defendant relies upon Instruction No’s 16 and 17 as follows: “INSTRUCTION NO. 16 “As standards of ordinary care, certain duties are imposed by law. They apply to persons who use the streets and highways. The violation of a duty is negligence.” “INSTRUCTION NO. 17 “The laws of Kansas provide that whenever any person driving a vehicle approaches a railroad grade crossing and a clearly visible electrical signal device gives warning of the immediate approach of a railroad train, the driver of such vehicle shall stop within 50, but not less than 15 feet from the nearest rail and shall not proceed until he can do so safely.” Defendant does not contend these instructions were erroneous, rather it claims the jury did not follow the instructions. Instruction No. 17 is taken from PIK Civ. 2d 8.43 and closely follows K.S.A. 8-1551. Defendant contends that the application of these instructions to the evidence precluded a finding of zero fault on the part of Jack A. James and such finding constitutes arbitrary action by the jury. Plaintiff directs our attention to Instruction No. 21 as follows: “Your first obligation is to determine the fault, if any, of the persons involved in the occurrence. Next, you must assign a percentage to each person’s fault. This percentage figure for each person may range from zero percent (0%) to one hundred percent (100%). When the percentage of fault of all persons being compared are added together, the total must equal one hundred percent (100%). “The persons to whom you have the discretion to assign fault are: Sylvester Gaulden Burlington Northern, Inc. Jack A. James “Your next obligation is to determine the amount of damages sustained by the Plaintiff Sylvester Gaulden. “In arriving at the full damage figure, you should not consider the question of fault. Do not reduce the damages by any percentage of fault.” This instruction was given without objection from the defendant. Further, at no time did the defendant object to submitting the issue of James’ liability to the jury or, prior to entry of the verdict, seek a ruling that James was at fault as a matter of law. Nevertheless, defendant is, in essence, now seeking liability to be imposed upon James as a matter of law. It is unusual for a driver whose motor vehicle collides with a train at an intersection where the flashing lights were operating to be held zero at fault. However, this case presents an unusual factual situation. Considering the evidence supporting the zero assessment of fault against James in its most favorable light, the following emerges. The railroad intersection warning lights had been installed approximately one month before the accident herein occurred. It was common knowledge in Augusta the lights did not operate properly. That is, on a number of occasions the lights had been activated when no train was present. Jack A. James was a resident of Augusta. Mr. James was not called as a witness in the case. The jury could have concluded Mr. James had knowledge of the lights’ prior malfunctions. Further, from the evidence, the jury could have concluded Mr. James stopped at the intersection as required by K.S.A. 8-1551 (Instruction No. 17). What could have, or should have been seen or heard by Mr. James before he started across the railroad tracks? There was no flagman on the ground with a light warning of the train — contrary to the railroad’s rules and regulations. It was nighttime. The eleven tank cars were being pushed at three to five miles per hour. The lead car was black in color. No light or horn was present on the front of the lead car. There were no lights along the tracks. The engineer did not blow the train whistle. The railroad regulations require the train whistle to be blown con tinuously until the first car is through the intersection. There was evidence the circumstances herein (darkness, slow moving black tank cars, etc.) would have made the approaching train virtually invisible to a motorist at the intersection. Emergency brakes on the train were not activated although the train could have been stopped within ten feet had they been activated. The brakemen did not notify the engineer when they saw the James vehicle. An additional factor which the jury could have considered in determining the credibility of witnesses is that the railroad investigator filing the initial accident report falsified his report to reflect the railroad had been operating in full compliance with all regulations at the time of the collision and was blameless in all respects. A verdict or finding of a jury cannot be disturbed by the court if there is substantial competent evidence in the record to support it. Kleibrink v. Missouri-Kansas-Texas Railroad Co., 224 Kan. 437, 581 P.2d 372 (1978). We conclude there was substantial competent evidence supporting the jury’s finding of zero fault on the part of Jack A. James and, accordingly, the finding will not be disturbed on appeal. Next, the defendant railroad contends the verdict was excessive in amount as to the railroad. The jury assessed 70% of the fault to the railroad and 30% to the plaintiff. The jury assessed plaintiffs damages at $620,000. Applying the percentages of fault, judgment was entered against the railroad for $434,000. Plaintiff s injuries were severe and permanent in nature. Defendant railroad does not contend the jury’s assessment of damages in the amount of $620,000 was, in any way, improper or excessive. Rather defendant contends that the jury’s finding of Zero fault on the part of Jack A. James resulted in defendant’s share of those damages being excessive. We have previously held that the jury’s finding of zero fault on the part of Jack A. James is supported by substantial competent evidence and, accordingly, cannot be disturbed on appeal. This issue is, therefore, now moot. In support of its contentions relative to these two issues, defendant raises certain other arguments including an allegedly prejudicial, but unobjected-to, remark by plaintiff s counsel dur ing his opening statement. It is sufficient to say we have considered all arguments made and find them to be without merit although not specifically addressed in this opinion. The judgment is affirmed. Herd, J., not participating.	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The opinion of the court was delivered by Herd, J.: This is an action incident to the dissolution of a closely held corporation. William G. Schraft, a fifty percent shareholder, sued Dan Leis, the other fifty percent shareholder, who had been general manager of the corporation. Schraft alleged Leis received unauthorized salary and profit-sharing benefits, wrote checks after dissolution, and unfairly competed with the corporation. Schraft also sued the corporation for rent, damage to rental property, and indebtedness on a note. Leis counterclaimed for supervised dissolution of the corporation, tortious interference by Schraft with the corporation’s business, and use of corporate property for personal benefit. Continental Structures, Inc., was formed in March 1974, by appellant, William G. Schraft; appellee, Daniel Leis; and Roy Arnett. Each was a one-third shareholder. Arnett and Leis had been employees of a metal building construction company which had been a tenant of Schraft’s. Continental Structures was to engage in the business of metal building construction and repair. Since the alleged overpayment of salary to Leis is the major portion of this lawsuit, we will examine the salary arrangements in some detail. Prior to incorporation, the parties agreed Arnett and Leis would manage the business for which they would receive salaries. Their salaries were initially to be the same as Arnett and Leis had received from their prior employer, which was $300 and $200 per week respectively. Schraft was not involved in management, thus was to receive no salary. After incorporation, each of the shareholders became a director and an officer. Arnett was elected president, Shraft vice-president, and Leis secretary-treasurer. The bylaws, as adopted, contained the following salary provisions: “The Board of Directors, from time to time, as it may determine, shall have authority to appoint such superintendents, general managers or other managing officers as may be deemed necessary or advisable, and to fix the salaries thereof.” The minutes of the corporation also contain the following statement as to salary: “The Board of Directors shall approve a salary . . . [for Amett and Leis] consistent with his position and what the corporation can reasonably afford based on profits and expenses.” However, there was never a formal corporate resolution setting a specific salary for Arnett or Leis. Beginning in 1974, the salaries of Arnett and Leis were increased without formal corporate action. By the end of 1974, Arnett had gone from $300 to $400 per week and Leis from $200 to $250, and then to $300 per week. On March 28, 1975, Arnett wrote a letter to Schraft wherein he apprised him of the salary increases. The letter stated: “It was my understanding that as President of Continental Structures, Inc. ... I would take a salary relevant to the position and what the business could afford, based on profits etc.” Schraft acknowledged receipt of the letter but did not discuss the salary matter with Arnett at that time. The letter also referred to a “monthly computer cost analysis” which, according to Schraft, was subsequently discussed. Schraft desired the analysis so he could have a monthly operating statement for the business. He testified when the company was formed it was agreed the company’s financial information would be placed in a computer and the parties would receive a monthly computer analysis. Arnett testified, in accordance with his letter, that he did not feel the expense of the computer was justified since the corporate books reflected the costs of doing business. He, therefore, terminated the reports. Schraft testified he repeatedly requested a monthly “comprehensive cost analysis.” Schraft claims the failure to provide such statements resulted in his not being aware of the salary increases. Schraft, however, admitted receiving various financial statements from Continental. He estimated that between 1974 and 1978 he received six or seven such statements. Arnett testified Continental’s first accountants prepared such statements routinely on a quarterly and year-end basis as well as on demand. Such statements were delivered to all three shareholders. Arnett also testified that from 1974 to 1976 Continental was a sub-chapter S corporation and copies of the corporate tax returns were delivered to the shareholders during these years. Schraft testified he did not see the returns until 1980. The building leased by Continental for offices was owned by Schraft. Schraft’s office was located in the same building. As a result, the books, records, and tax returns of Continental were readily available to Schraft. He testified he did not avail himself of the opportunity to view the company financial statements. Schraft also admitted between 1974 and 1977 he did not talk to Continental’s accountants. In 1977, Continental changed its accountant to Ray Eyman, who was recommended to the company by Schraft. Eyman had prepared Schraft’s personal tax returns. Schraft testified he talked to Eyman from time to time and received verbal information from him about the company. From 1979 on, Eyman kept the corporate books at his home. Eyman also furnished financial statements to Schraft, as had the previous accountants. In August 1978, Arnett was terminated as president and manager of the compány because of a seventy thousand dollar loss for 1977. Schraft testified although he did not see the actual 1977 tax return until it was filed in 1981, Eyman furnished him with the figures from the front page of that return at the time of Arnett’s termination. The first page of the 1977 return shows the compensation of the managing officers. It was, of course, in excess of the initial amounts agreed upon. Arnett testified that some time after his termination in August and before November 1978, Schraft mentioned the matter of unauthorized salary. Arnett ignored the matter. Schraft denied that he learned of Arnett’s salary at this time. In November 1978, the company agreed to buy Arnett’s shares. After the buy-out, Schraft and Leis each became fifty percent shareholders. Leis became president of the company. Schraft testified that after the meeting electing Leis president, Leis stated that he should receive the same salary Arnett had. Schraft made no reply. He explained his lack of response saying he did not want to discuss the matter at that time. He later assumed the subject was dropped since it was not brought up again. He never asked Leis about the salary and did not check the books of the company. Schraft became treasurer of the company, as well as vice-president, when Leis became president. The duties of the treasurer specified in the bylaws were to “have custody of all money ... of the corporation and .... keep regular books of account . . . .” In November 1979, Leis and Schraft discussed a list of employees and proposed wages, At the conclusion Leis told Schraft he wanted an additional $150 per week, raising his salary to $650 per week. Schraft claims this is the first time he knew Leis was receiving a salary greater than the original $200 per week. After the November 1979 meeting on salaries, the relationship between Schraft and Leis deteriorated. Their efforts to arrive at an agreement to buy or sell the company failed. In April 1980, Schraft filed the present action. At a special meeting of the board of directors, held August 14, 1980, it was agreed to dissolve the corporation. Various resolutions, incident to the dissolution, were adopted. These resolutions were: (1) The corporation would proceed to pay off its liabilities; (2) the officers were directed to do all things necessary to dissolve the corporation; (3) all employees, except Delbert Story, were to be terminated at 5:00 p.m., August 15, 1980; (4) no distribution of assets to the shareholders would be made without mutual agreement; (5) the checking account would be changed to require two signatures on each check; (6) all officers were terminated immediately except to sign instruments necessary to liquidate and dissolve the corporation; and (7) all credit cards were cancelled. The next day, on August 15, 1980, Leis signed payroll checks for the employees without Schraft’s co-signature. Among these checks were three salary checks to himself, each in the amount of $429.96. Following the resolution to dissolve the company, Leis formed a new company, Superior Structures, Inc. Schraft testified Superior did work on a building for a former client of Continental’s, completing the work before August 26, 1980. Trial was to the court. At the close of Schraft’s case, the court dismissed the claims against Leis for unauthorized salary, unfair competition, and writing checks the day after dissolution. In addition, the court dismissed a portion of Schraft’s claim for rent against Continental and dismissed other claims of which no complaint is made on appeal. Leis had counterclaimed against Schraft for tortious interference with Continental’s business and unauthorized use of corporate assets. At the close of Leis’ evidence, the court dismissed the tortious interference claim and the unauthorized use claim except for Schraft’s use of corporate credit cards after dissolution. The court made findings of fact and conclusions of law on the remaining issues. Schraft was awarded judgment against Continental of $3,300 for rent and $3,000 on a note. Continental was granted judgment against Schraft for $115.00 on the credit card claim. The court granted Leis’ request for supervised dissolution of the company. Schraft filed a motion to amend the judgment or for a new trial. The court denied the motion but made additional findings. Schraft appealed. Appellant Schraft first argues the trial court erred in dismissing his claims for breach of fiduciary duty and unfair competition. Schraft’s principal claim in this case is that Leis received unauthorized salary in the amount of $75,000 from Continental Structures, Inc. He contends he had no knowledge prior to 1979 Leis’ salary had been increased beyond the initial $200 per week. He maintains the payment of salary in excess of the original $200 constitutes breach of the corporate bylaws and Leis’ fiduciary duty to the corporation and appellant individually. Leis contends it was agreed prior to incorporation that he and Arnett would receive salaries in the same amount as they were receiving in their prior employment with salary increases allowed consistent with the condition of the company and services they performed. He acknowledges no formal board of directors action was taken to increase either his or Arnett’s salaries. But appellee also contends there was an implied agreement to pay a reasonable salary for his work. He also argues Schraft had knowledge, actual and constructive, of the salary increases and failed to complain or take any action. Appellant argues the corporate bylaws provide the board of directors is to set salaries and since no formal board action was ever taken to increase appellee’s salary above the initial $200, all salary received above that amount is unauthorized. The bylaws of a corporation are the rules of law for its government. The term “bylaw” may be further defined according to its function, which is to prescribe the rights and duties of the members with reference to the internal government of the corporation, the management of its affairs, and the rights and duties existing among the members. Bylaws are self-imposed rules, resulting from an agreement or contract between the corporation and its members to conduct the corporate business in a particular way. Until repealed, bylaws are the continuing rule for the government of the corporation and its officers. See 18 Am. Jur. 2d, Corporations § 168. As previously stated, it is undisputed no formal board action was taken to set appellee’s original salary despite the agreement between the parties that the board would approve all salaries. Rather, it was by informal agreement that it was initially set at the $200 level. Thus, Schraft ratified the setting of Leis’ salary by a method other than that authorized by the corporate bylaws. It has been stated: “Corporations have power to waive provisions of their bylaws introduced for the protection of the company, and they may do so expressly or impliedly. Also, corporate bylaws may be waived by a continued disregard thereof by the parties for whose benefit they were enacted.” 18 Am. Jur. 2d, Corporations § 173, pp. 703-04. See also 8 Fletcher, Cyclopedia of the law of Private Corporations § 4200, pp. 730-31 (rev. perm. ed. 1982). The use of the bylaws, therefore, was waived by both parties. Appellant next argues appellee is to be held to the terms of his salary contract, regarding the amount of the salary and when it would be increased. For support appellant cites Sweet v. Stormont Vail Regional Medical Center, 231 Kan. 604, 647 P.2d 1274 (1982), and Manhattan Buildings, Inc. v. Hurley, 231 Kan. 20, 643 P.2d 87 (1982). Appellee does not dispute this. There is disagreement, however, as to the terms of the employment contract. The trial court heard conflicting testimony as to the employment contract and found the parties had agreed salaries would be taken based on the condition of the company and services performed. Arnett testified at trial the salaries taken were consistent with that standard. Further, appellant admitted the $650 per week appellee requested in November 1979, was fair compensation for the work appellee performed. We have held where the trial court has made findings of fact and conclusions of law, the scope of review on appeal is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. See City of Council Grove v. Ossmann, 219 Kan. 120, Syl. ¶ 1, 546 P.2d 1399 (1976). The trial court’s finding that the salary taken was fair for the work performed is supported by the evidence and must, therefore, be upheld. The trial court fortified the foregoing finding by also finding there was an implied agreement appellee would receive a fair salary for his duties as a managing officer of the corporation. A director or officer of a corporation working as an operating manager has a claim for the value of his services even if there has been no resolution of the board of directoi'S fixing his compensation. See 19 Am. Jur. 2d, Corporations § 1402, p. 795. See also Sauberli v. Sledd, 143 Kan. 350, 55 P.2d 415 (1936). Thus, in the absence of an express agreement as to the amount of his salary and the terms of increases in that salary, there was an implied contract to pay a fair and reasonable salary to appellee. The trial court properly found the salary received was fair and reasonable for the work performed. It is undisputed Leis owed a fiduciary duty to the corporation and to Schraft. Thus, he owed Schraft the duty of full disclosure of corporate matters. See Sampson v. Hunt, 233 Kan. 572, 665 P.2d 743 (1983); Newton v. Hornblower, Inc., 224 Kan. 506, 582 P.2d 1136 (1978). The trial court found this dixty properly discharged as to the salary issue since appellant had both actual and constructive knowledge of the salary increase. The trial coui't’s finding was supported by substantial competent evidence and will not be disturbed on appeal. The trial coxxrt further found the appellant was barred from asserting the profit-sharing claim by estoppel, waiver, laches and ratification. These rxxlings ax-e based on the finding that Schraft had signed the corporate minutes establishing and terminating the profit-sharing plan. Estoppel involves an assextion of lights inconsistent with past conduct, silence by those who oxxght to speak, or situations whex'e it would be unconscionable to permit pei'sons to maintain a position inconsistent with one in which they have already acquiesced. See Harrin v. Brown Realty Co., 226 Kan. 453, 458-59, 602 P.2d 79 (1979). Waiver implies a party has voluntarily and intentionally renounced or given up a known right, or has caused or done some positive act or positive inaction which is inconsistent with the contractual right. Waiver is consensual in nature but the intention may be inferred from conduct and the knowledge may be actual or constructive. See Stratmann v. Stratmann, 6 Kan. App. 2d 403, 410-11, 628 P.2d 1080 (1981). The doctrine of laches is an equitable device designed to bar stale claims where an excessive amount of time has passed prior to the assertion of a claim. Delay, by itself, does not constitute laches and an action generally will not be defeated by laches alone unless some prejudice has resulted therefrom to the rights or interests of the adverse party. See Stratmann at 411. Ratification is the adoption or confirmation by a principal of an act performed on his behalf by an agent which act was performed without authority. Upon acquiring knowledge of his agent’s unauthorized act, the principal should promptly repudiate the act, otherwise it will be presumed he has ratified and affirmed the act. See Equity Investors, Inc. v. Ammest Group, Inc., 1 Kan. App. 2d 276, Syl. ¶¶ 5-6, 563 P.2d 531, rev. denied 225 Kan. 843 (1977). Appellant argues that since appellee’s conduct was inequitable, appellee may not rely on estoppel. In Newton v. Hornblower, Inc., 224 Kan. 515, we held the person raising estoppel is himself bound to exercise good faith. The trial court specifically found in this case there was no evidence of deceit on the part of appellee. Appellant indicates no evidence to refute this finding. The appellee was thus not barred from raising estoppel. The trial court found the affirmative defenses of estoppel, waiver, laches and ratification applied to appellant’s claim for unauthorized profit-sharing payments. Appellant testified at trial that in 1977 he was presented with the two sets of minutes of the board of directors’ meetings, one dated March 12, 1974, and the other March 9, 1976. One established and the other terminated an employee profit-sharing plan. The minutes were prepared to satisfy an IRS audit. Appellant testified he had not known of the profit-sharing plan prior to signing the minutes in 1977. Appellant testified he discovered much later that money had been distributed to employees, including $2,102.46 to appellee, under the plan. Appellant contends the payments constituted a breach of fiduciary duty since they were done without his knowledge. Appellant testified, however, he signed the corporate minutes discussing the plan in 1977. Thus, he had actual knowledge of the plan several years before filing this action but failed to complain of it at the time. There is no evidence that payments made under the plan were concealed from the appellant or that he inquired about the plan after signing the minutes. The trial court, therefore, did not err in applying estoppel, waiver, laches and ratification to appellant’s claim for improper payments under the profit-sharing plan. Appellant also contends appellee breached a fiduciary duty to Continental when appellee’s new company, Superior, did work for a former client of Continental’s shortly after the dissolution resolution of August 14, 1980. The work was a new job, but Continental had done work for the client before. In Parsons Mobile Products, Inc. v. Remmert, 216 Kan. 256, Syl. ¶¶ 7-8, 531 P.2d 428 (1975), this court held: “When the customer list of a business is not confidential and the business is of such a nature as to rely on open competition to secure orders a former employee may solicit former customers of his employer without being guilty of unfair competition.” (Syl. ¶ 7.) “An officer or director is not chargeable with lack of good faith toward his corporation in regard to a contract previously held by it once the corporation has refused to renew or accept that contract. In such a case the officer or director is free to form a new company and secure a contract for the new company.” (Syl. 118.) In this case, after the resolution to dissolve was adopted Continental was not in a position to work for the client. The trial court found there was no company for appellee or Superior Structures to compete against. We agree. Appellant next claims the trial court erred in dismissing his claims for checks which were written solely by appellee on August 15, 1980. As part of the August 14, 1980, dissolution agreement the checking account was to be changed to require the signatures of both appellant and appellee on all company checks. Appellant contends appellee had the burden as a fiduciary to establish these checks were fair and taken in good faith since they were written contrary to the dissolution agreement. The record shows the checks written by appellee were for his wages and vacation pay. Appellant does not argue that appellee was not entitled to this money, but complains only that the checks were written without his co-signature. The checks were for wages, reasonable in amount, and there was no damage to appellant by the failure of appellee to have them co-signed. Thus, the trial court did not err in ruling appellee did not breach a fiduciary duty by writing the wage checks without the co-signature of appellant. The final issue raised by appellant as to the breach of a fiduciary duty is that the court erred in dismissing the claim for punitive damages. Punitive damages are proper when a breach of fiduciary duty is involved. Newton v. Hornblower, Inc., 224 Kan. 506, Syl. ¶ 13. In this case, the trial court properly dismissed the diaim for breach of fiduciary duty against appellee; thus, under the circumstances it was required to also dismiss the claim for punitive damages. Appellant next argues the trial court abused its discretion in refusing to consider on appellant’s motion for new trial the affidavits of witnesses who had testified at trial. The affidavits included in the motion were those of Arnett; Don Riley, Continental’s attorney; and Shirley Garrity, appellant’s accountant. In Arnett’s affidavit, he states after the pre-incorporation agreement a misunderstanding arose as to whether the salaries were to remain at the initial level. Arnett’s position was the salaries could be increased. Consistent with his trial testimony, the affidavit states he expressed this position in a March 1975 letter to Schraft. The affidavit states, however, Schraft objected to this and it was then agreed that the board of directors would determine the salaries. In denying the motion for new trial, the trial court stated it had not considered the affidavits. The court noted each affiant had testified at trial, and that Arnett’s affidavit contradicted his trial testimony. The court concluded such contradictory evidence is not allowed after the fact. On appeal, appellant argues Arnett’s affidavit shows the statement in his letter respecting salary was never the agreement of the parties and the trial court’s finding to that effect is erroneous. Motions for new trial are governed by K.S.A. 60-259, which provides: “A new trial may be granted to all or any of the parties and on all or part of the issues when it appears that the rights of the party are substantially affected: “[Because of] [e]rroneous rulings or instructions of the court. “. . . That the verdict, report or decision is in whole or in part contrary to the evidence. “. . . For newly discovered evidence material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial.” We have held the granting or denial of a new trial on grounds of surprise or newly discovered evidence is discretionary on the part of the trial court, and will not be reversed unless a clear abuse of discretion is shown. See Bott v. Wendler, 203 Kan. 212, 229, 453 P.2d 100 (1969). The burden is on the party seeking the new trial to show the new evidence could not, with reasonable diligence, have been produced at trial. Where the party does not meet this burden, a trial court does not abuse its discretion in refusing to consider the contents of a supporting affidavit. See Connolly v. Frobenius, 2 Kan. App. 2d 18, 25, 574 P.2d 971, rev. denied 225 Kan. 843 (1978). In this case, Arnett, Riley and Garrity all testified at trial as appellant’s witnesses. Appellant had every opportunity to examine each of them and elicit the information set out in the affidavits. The appellant failed to show the new evidence, particularly that included in Arnett’s affidavit, could not have been produced at trial. The trial court did not abuse its discretion in refusing to consider the affidavits or in denying the motion for a new trial. The next issue is whether the trial court erred in ruling there was no evidence of a rental agreement on Continental’s offices which were located at 805 South Main, Wichita, in a building owned by appellant, and that appellant failed to mitigate his damages. In addition to the office space, Continental also rented warehouse space from appellant at 1711 South Knight, Wichita. Schraft testified he was seeking $8,880 in rent from the company for the period September 1, 1980, to September 1, 1981. This sum represented a monthly rental of $740 for both the office space and the warehouse. Appellant testified he could not separate the rent for the two facilities. Among the resolutions adopted by the board of directors at the August 14, 1980, meeting dissolving the corporation was the following: “FURTHER RESOLVED: Delbert Story, employee of Continental Struetures shall be plaeed in charge of seeing that all physical assets of the corporation are delivered to 1711 South Knight, Wichita, Kansas, as soon as possible.” The intention of the shareholders was for Continental to move from the office space on Main to the warehouse as soon as practical. Despite this intent and resolution,, the furniture and other office equipment was not moved from the office on Main Street until a year later, in August 1981, when an auctioneer removed it for sale. The trial court found there was insufficient evidence of a rental agreement for 805 South Main and that appellant had failed to mitigate his damages. On a motion to amend or for new trial the court found additionally appellant had directed Delbert Story to change the locks on Continental’s office on Main shortly after the August 14 resolution. Leis was not given a set of new keys. The court found the furniture and equipment had remained on the premises because of the actions of appellant and he had breached his duty to the corporation to preserve its assets. Further, appellant made no effort to relet the offices until the furniture was removed in August of 1981. The court did find rent was due for the warehouse space at 1711 South Knight. Rent for the warehouse was set by the court at $275 per month, plus interest. On appeal, appellant complains of the court’s ruling concerning the existence of a rental agreement for 805 South Main. Appellant points to appellee’s answer to the second amended petition which contains an admission by appellee that a rental agreement existed for 805 South Main and 1711 South Knight. Despite admission as to the existence of a rental agreement, appellant was properly not allowed to recover due to his failure to mitigate damages and actual expulsion of appellee by changing the locks on the offices. Appellant does not argue the trial court erred in its ruling on mitigation. For this reason, Sehraft was properly denied rent on the office at 805 South Main. Appellant next complains of the court’s proration of the $740 per month lump sum claimed by appellant and the award of $275 per month for the warehouse space. Appellant contends this was done without supporting evidence. Appellant’s second amended petition, however, includes a lease, attached as an exhibit, cov ering only the 1711 South Knight property, with rent set at $275 per month. Since appellant was unable to state how much of the $740 per month he claimed was attributable to the separate properties, the only evidence of rent due for 1711 South Knight was the written lease for $275. The trial court’s ruling is supported by substantial competent evidence. The final issue is whether the trial court erred in allowing the testimony of accountant Steven Houlik from the work papers of Continental’s former accountant or in determining the amount due appellant on a note. From 1977, to the date of dissolution of the company, Ray Eyman was Continental’s accountant. Eyman, however, could not testify at trial for health reasons which had led to memory loss. Accounting testimony, therefore, was received from Shirley Garrity, on behalf of appellant, and Steven Houlik, on behalf of appellee. Garrity testified based only upon her review of the company;s books and records. She stated from her review of the general ledger, Continental owed appellant $7,719.24. On cross-examination, Garrity testified the ledger book was posted only through March 31, 1979. She found no assets and liabilities listed for the period after that date, although there was an operating journal reflecting deposits and payments for the period April 7, 1980, through September 15, 1980. She never obtained or requested Eyman’s work papers. At the August 14, 1980, meeting dissolving the corporation, a resolution was adopted retaining Houlik to bring “the books of account to date, prepare any tax returns . . . and . . . perform any accounting services in conjunction with the liquidation and dissolution of the corporation.” Houlik testified at trial the general ledger was only fully posted through March 31, 1978. It is unclear whether the difference between this date and the March 31, 1979, date testified to by Ms. Garrity is merely a clerical error. Entries after that date were found by Houlik in Eyman’s work papers. Houlik testified there were entries in the work papers for the year ending March 31, 1979, which showed Continental performed jobs for appellant, thereby resolving any indebtedness to appellant. After evaluating the testimony of the two accountants, the trial court determined the books and work papers considered together showed $3,000 was owed by the company to appellant. On appeal, appellant argues the court erred in receiving Houlik’s testimony based on Eyman’s work papers since the work papers were inadmissible hearsay and were admitted without proper foundation. If the work papers were not admitted, the company’s indebtedness to appellant would remain at the $7,719.24 amount shown in the general ledger. The court held the work papers were hearsay but admissible under the business records exception to the hearsay rule, K.S.A. 60-460(m), which allows the admission of: “Writings offered as memoranda or records of acts, conditions or events to prove the facts stated therein, if the judge finds that (1) they were made in the regular course of a business at or about the time of the act, condition or event recorded and (2) the sources of information from which made and the method and circumstances of their preparation were such as to indicate their trustworthi- In State v. Cremer, 234 Kan. 594, Syl. ¶ 2, 676 P.2d 59 (1984), this court discussed the proper foundation for the admission of business records. “K.S.A. 60-460(m) does not require that the custodian of business records be called to lay the foundation facts for their admission into evidence. The foundation facts may be proved by any relevant evidence and the person making the entries in the records need not be called to authenticate them if they can be identified by someone else who is qualified by knowledge of the facts. The policy of the section is to leave it up to the trial court to determine whether the sources of information, method, and time of preparation reflect trustworthiness.” Eyman was not available to testify at trial because of his health problems. It was clear from the testimony of Garrity and Houlik that the formal records of the company were not fully posted after 1978 or 1979. Houlik, who had been hired by corporate resolution to complete the company’s accounting, testified the missing postings were in Eyman’s work papers. Since the papers represented the company’s only accounting after the last posting in the formal books, they appear to be the company’s “books and records.” Houlik had obtained the papers from Mr. Eyman; therefore, Houlik was their custodian. The trial court determined the sources of information and method of time of preparation reflected trustworthiness. The absence of entries in the formal corporate ledgers and the existence of entries in Eyman’s work papers were rationally ex plained. We find no abuse of discretion by the trial court in allowing Houlik’s testimony based upon the records. The judgment of the trial court is affirmed. Holmes, J., not participating.	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The opinion of the court was delivered by Holmes, J.: This is an appeal by the plaintiff, Renee George Mercer, from an order of the trial court granting summary judgment in favor of the defendants, Elden Fritts and his wife, Betty Fritts. The Court of Appeals reversed the trial court’s order and directed that the case be remanded for further proceedings. Mercer v. Fritts, 9 Kan. App. 2d 232, 676 P.2d 150 (1984). We granted a petition for review of that decision. The facts surrounding the injuries received by plaintiff are set forth in detail in the Court of Appeals opinion and need not be repeated here. Briefly summarized it appears plaintiff was an admitted social guest at defendants’ rural home and was allowed to ride a stallion owned by the defendants. Elden Fritts brought a mare into the view of the stallion; the stallion reared and fell upon plaintiff, who sustained serious personal injury. Plaintiff does not contend that the defendants were guilty of any willful or wanton conduct which led to her injuries. The trial court, in granting summary judgment in favor of defendants, ruled that the law of premises liability controlled and in the absence of any willful or wanton conduct the defendant landowners would not be held responsible for injury to a social guest or licensee upon their property. Appellant contends the premises liability doctrine is not applicable and that the law pertaining to injury by an animal is the proper one to be applied to the facts of this case. The Court of Appeals so held and we agree with' the majority of that court. The trial court and Chief Judge Foth, in his dissent in this case, were of the opinion that our decisions in Britt v. Allen County Community Jr. College, 230 Kan. 502, 638 P.2d 914 (1982); Zuther v. Schild, 224 Kan. 528, 581 P.2d 385 (1978), and Gerchberg v. Loney, 223 Kan. 446, 576 P.2d 593 (1978), required the application of premises liability law as opposed to animal law. While it is true that the application of the law of premises liability, as it now stands in Kansas, and animal law to the facts of this case result in inconsistent standards of care, we are of the opinion that the conclusion reached by the majority of the Court of Appeals is correct. The Honorable Frederick Woleslagel, District Judge Retired, sitting with the Court of Appeals, in a well-reasoned opinion, has adequately covered the arguments and positions of the parties in the majority opinion in this case and we see nothing to be gained by repeating what has already been said in that opinion or by unduly extending this opinion. We concur with the results reached in that opinion. Appellant’s second point on appeal is that if this court should determine that premises liability law is controlling then we should reconsider and abolish the distinctions in the duty owed by a landowner to an invitee and that owed to a licensee as adhered to in Britt and its predecessors. In view of our decision that premises law does not apply in this case we do not reach that point. The decision of the Court of Appeals is affirmed, the decision of the district court is reversed and the case is remanded to the district court for further proceedings consistent with the views expressed by the Court of Appeals.	[ -11, 106, -99, -4, 24, 96, 42, -98, 67, -121, -77, 87, 79, -53, 5, 105, -24, 45, 64, 107, -37, -77, 87, -63, -42, -5, -110, 85, -111, 78, -27, -9, 9, 112, 10, 85, -26, -118, 77, 20, -114, 7, 11, -59, -39, -64, -72, 106, 22, 74, 49, 15, -69, 46, 29, 67, 40, 44, 27, 45, -40, -15, -53, 7, 106, 18, 51, 36, -66, -93, 88, 110, -104, 49, 0, -24, 83, -76, -126, 116, 105, -103, 12, 38, 99, 33, 29, -49, 100, -104, 15, 87, 15, -89, -112, 89, 27, 1, -106, -99, 113, 66, 11, 124, -22, -107, 29, -8, 7, -49, -110, -111, -89, 101, -42, -27, -61, -59, 17, 117, -114, -32, 95, 70, 48, 27, -114, -66 ]
The opinion of the court was delivered by Lockett, J.: Michael Douglas Peterson was convicted by a jury of felony murder in violation of K.S.A. 21-3401, and aggravated robbery in violation of K.S.A. 21-3427. He appeals. At approximately 12:30 p.m. on July 14, 1983, the body of Mae Adele Hilleary was found in a Christian Science Reading Room located in Merriam, Johnson County, Kansas. Mrs. Hilleary’s body was discovered by a friend and fellow church member who had gone to the reading room sometime during the noon hour on July 14, 1983. Police were summoned. Attempts by a rescue worker to revive Mrs. Hilleary proved to be unsuccessful. Dr. James G. Bridgens, a pathologist, concluded that the victim had died between 11:00 a.m. and 11:30 a.m. of a single small caliber gunshot wound to the back of the head. Mrs. Hilleary had been filling in as a substitute librarian on the day of her death. Although no money was discovered missing from the sales area of the reading room itself, the perpetrator had apparently taken money and credit cards from the victim’s purse. In addition, the victim’s undergarments had also apparently been taken by the killer, although there was no evidence of sexual abuse. The Metropolitan Major Case Squad, consisting of police officers from surrounding jurisdictions, joined in the investigation. The day following the murder, the Metro Squad interviewed David Messmer, who had been in close proximity to the Christian Science Reading Room at about the time the murder was committed. As he was about to enter his automobile parked in front of the building next to the reading room, Messmer observed a light blue car, which he later identified as a Pontiac Sunbird, driven by a young man of 25 to 35 years of age come speeding out of the alley away from the building, hit a dip as it entered the roadway, apparently scraping the undercarriage, and depart at a high rate of speed. That same night, July 15, 1983, Metro officers were summoned to a halfway house where a resident of the house, John Woolsey, related that the afternoon of the murder he had been walking to the halfway house with a friend when he observed four or five credit cards. He picked one of the cards up and then discarded it without thinking anymore about it until reading about the homicide the next day in the newspaper. He recognized the name of the victim as being the same as the name on the credit card he had picked up. He then returned to the lot and picked up the card which he turned over to the police. Later, a search of the lot by the police led to the discovery of various credit cards bearing the name of the victim. On July 16, 1983, Metro Squad officers were contacted by Elaine Dalton, a detective with the Kansas City, Missouri Police Department, who was not involved in the investigation, but who had information she wanted to pass along to the Metro Squad. Dalton related that a Randy Smith had called her and told her that Michael Peterson should be checked out because he was capable of something like this. Smith told Dalton that Peterson lived with a Michael Taraboulos and that Peterson had access to Taraboulos’ car, a late model blue Oldsmobile. Dalton also told Metro Squad officers that several weeks earlier Peterson had gone into the Christian Science Reading Room in Kansas City, Missouri where her mother, Mrs. Lloree Jones, was working. Peterson had tried to borrow money from her. When Mrs. Jones refused to give Peterson money, he got angry and said “How would you like for me to just slap the hell out of you? I wish you were dead.” Metro Squad officers then interviewed Randy Smith, the head librarian at the Kansas City, Missouri, Christian Science Reading Room. Smith related that he met Peterson when Peterson came into the reading room asking for money, that he found employment for Peterson, and on occasion employed Peterson at the church. Smith further stated that Peterson often took and used Smith’s credit cards and other property without permission. He and Peterson, who was a moody person, had had some violent confrontations in the past over trivial matters. On other occasions, Peterson had tried to “con” money at other Christian Science Reading Rooms. Smith also stated that Peterson had become angry at an employee of the reading room, Mrs. Jones, when she refused to loan him money in the past, and had not shown up for work at the church on the day of the murder. Other officers of the Metro Squad summoned Mike Taraboulos to the Merriam, Kansas, Police Department to search his automobile and to interview him. Taraboulos said that Peterson had been living with him for approximately one week and had access to his gray with dark blue accents 1979 Oldsmobile Cutlass. Peterson had taken Taraboulos to work the morning of July 14, and had picked him up sometime between 5:30 and 6:00 p.m. During the previous week, Peterson had mentioned buying a gun for his own protection. Peterson had purchased Taraboulos’ breakfast the day following the murder with “extra” money. Taraboulos agreed to allow officers to search his car and apartment. About 7:15 p.m. that same evening, police searched the car at the Merriam Police Department headquarters. Nothing was found inside the car, but recent scratches and concrete dust were found on the front, underneath side of the car. Upon entering Taraboulos’ apartment to conduct the search, police officers ascertained that Peterson was present. He was placed in custody and put into handcuffs at 8:00 p.m. Officers then searched the apartment and discovered a map torn from a telephone book on which was marked the location of Christian Science churches in Kansas and one Christian Science Reading Room in Missouri. Also seized was the clothing Taraboulos had described Peterson as wearing the day of the murder. Peterson was then transported to the Kansas City, Missouri, Police Station and advised of his Miranda rights. Following Peterson’s .acknowledgement and waiver of his right to remain silent and his right to an attorney, he was interviewed by Detective Orr and Trooper Kreamer. He initially denied any knowledge of the murder of Mrs. Hilleary, but after further questioning, Peterson admitted he had killed Mrs. Hilleary and described the murder. Following the initial oral confession, other officers again advised Peterson of his rights, obtained a written waiver, and videotaped a second confession. This interview concluded in the early hours of July 17, 1983. At 11:30 a.m. July 17, while still in custody at the Kansas City, Missouri, Police Department, Peterson was interviewed by Detective Burke of the Lenexa, Kansas, Police Department. Detective Burke again advised Peterson of his rights and received a waiver of rights from him. Peterson told the detectives where he had thrown the gun and the victim’s undergarments, and generally described how the killing had occurred. On July 18, 1983, Peterson, while enroute to the Johnson County Jail in Olathe, Kansas, was again advised of his rights which he again verbally waived. Peterson then directed officers to the areas where he claimed to have thrown the gun out of his car after the shooting. During the booking procedure at the Johnson County Jail, Peterson was overheard to say that he had done it, but that he could not be found guilty because everything had been arranged. Members of the Metro Squad searched for the victim’s undergarments and the murder weapon, but none were found. Officers then interviewed Peterson at approximately 8:00 p.m. on July 18, 1983, to attempt to get him to tell them the location of the gun. During the interview, which was tape recorded, Peterson recanted all of his prior confessions and absolutely denied his guilt. On that same day, July 18, 1983, Messmer, the witness who had seen the automobile speeding away from the scene of the homicide, was taken by the police to the storage lot where Taraboulos’ automobile was being held. Messmer could not positively identify the automobile as the one he had observed leaving the scene. Following the denial of defendant’s pretrial motions to suppress his previous confessions, defendant was initially brought to trial on December 5, 1983. The first trial resulted in a hung jury. Defendant was retried and ultimately found guilty of all charges on January 23, 1984. On March 16, 1984, he was sentenced to a term of life imprisonment on the felony murder conviction and to a consecutive term of fifteen to twenty years on the aggravated robbery charge. Peterson argues on appeal that the trial court erred in not granting the motion to suppress his confession. Peterson contends that the police did not have sufficient and probable cause to arrest him, and, they, therefore, committed an illegal arrest. He argues that because his arrest was illegal, any evidence obtained in connection with the arrest, including the confessions, was tainted and could not be used against him. The State claims there was sufficient probable cause for the arrest, and, therefore, the confessions were not tainted. In Wong Sun v. United States, 371 U.S. 471, 9 L.Ed. 2d 441, 83 S.Ct. 407 (1963), the United States Supreme Court held that verbal evidence which derives from an unlawful arrest may not be used against a defendant unless the connection between the arrest and the statement has become so attenuated as to dissipate the taint. In Brown v. Illinois, 422 U.S. 590, 45 L.Ed. 2d 416, 95 S.Ct. 2254 (1975), the United States Supreme Court held that Miranda warnings by themselves were not sufficient to dissipate the taint of an unconstitutional arrest. We considered the admissibility of a statement following an illegal arrest in State v. Johnson, 222 Kan. 465, 565 P.2d 993 (1977). An illegal arrest per se does not require the suppression of all subsequent statements made by the accused. Unless facts of the case establish that an unlawful arrest or detention in and of itself constituted duress which would render a statement by the accused involuntary, the same rule as to admissibility of a statement is applicable as if an arrest and detention were lawful. Under Kansas law, the constitutional validity of a warrantless arrest depends upon whether the arresting officer had probable cause to believe that the person arrested had committed a felony. Under K.S.A. 22-2401(c)(l), probable cause refers to that quantum of evidence which would lead a prudent man to believe that an offense has been committed. The evidence giving rise to probable cause need not be sufficient to prove guilt beyond a reasonable doubt, nor need it be sufficient to prove guilt is more probable than not. State v. Clark, 218 Kan. 726, 544 P.2d 1372, cert. denied 426 U.S. 939 (1976). Peterson was initially arrested in the State of Missouri by Missouri officers accompanied by Kansas officers. In the absence of an applicable federal statute, the law of the state where an arrest without a warrant takes place determines its validity. United States v. Di Re, 332 U.S. 581, 92 L.Ed. 210, 68 S.Ct. 222 (1948). Missouri Revised Statutes § 544.216 provides that law enforcement officers may arrest on view, and without a warrant, any person the officer sees violating or who the officer has reasonable grounds to believe has violated any laws of that state, including a misdemeanor, or has violated any ordinance over which the officer has jurisdiction. In State v. Abbott, 571 S.W. 2d 809 (Mo. App. 1978), .that court determined that in every case in which the existence of probable cause is an issue, the court must exercise a subjective judgment; that in the final analysis the determination of probable cause depends on the particular facts and circumstances of the individual case. Probable cause to arrest without a warrant simply means a knowledge of facts and circumstances sufficient for a prudent person to believe a suspect is committing or has committed an offense. Its existence must be determined by practical considerations of everyday life on which a reasonable person acts and not on the hindsight of legal technicians. It is well established that where a law enforcement officer arrests with a warrant the collective information of the police officers and law enforcement officers involved in obtaining the warrant forms the basis for the probable cause for the arrest with the warrant, even though that information is not within the knowledge of the arresting officer. In addition, an officer without a warrant, who has sufficient personal knowledge or collective information from other law enforcement officers to form the basis for probable cause, can request a second officer who has come in contact with the suspect to arrest the suspect under proper circumstances. The knowledge of the arresting officer is relevant only where an arrest is predicated on that officer’s personal observations and information concerning the criminal act. The correct test is whether a warrant if sought could have been obtained by the arresting officer. In a cooperative investigation by many law enforcement officers, the knowledge of one officer is the knowledge of all in determining probable cause for an arrest, provided there has been communication between the individual officers. The question here is whether sufficient information had been communicated to Detective Orr and Trooper Kreamer for those officers to determine there was probable cause to arrest Peterson. Detective Orr and Trooper Kreamer had knowledge of all the information gathered by the various law enforcement officers except the information concerning Taraboulos’ car, which Peterson had been driving on the day of the murder. Merriam police officers examined the car and found recent scratches and concrete dust on the front and underneath side of the car while officers were searching Taraboulos’ apartment. Under the facts and circumstances of this case the arresting officers had sufficient information to form a basis for probable cause to arrest the defendant without a warrant. The statements given by the defendant were derived from a lawful arrest in Missouri and those statements could be used against the defendant at his trial in Kansas. During the second trial Officer Elaine Dalton testified that her mother told her Michael Peterson came into the Christian Science Reading Room in Kansas City, Missouri, where she was working, and demanded money. This incident had occurred several weeks before the murder of Mrs. Hilleary. Mrs. Jones had related it to her daughter the day the incident occurred or possibly the next day. Mrs. Jones had died in September prior to the trial. The trial court allowed the testimony over the objections of the defendant. The defendant claimed: (1) that the evidence fell within the prohibition of K.S.A. 60-455; (2) that the prejudicial effect of the evidence far outweighed the probative value; and (3) that the testimony was inadmissible hearsay. Was the incident which occurred between Mrs. Jones and Peterson admissible as an exception to the prohibition of K.S.A. 60-455? Subject to certain exceptions, 60-455 prohibits introduction into evidence the fact that a person has committed a crime or a civil wrong on a specific occasion to prove that person’s disposition to commit a crime or civil wrong as a basis for the inference that the individual committed the crime or civil wrong for which he is now being tried. Evidence of a prior crime or civil wrong is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Unless the evidence is relevant to an issue other than disposition to commit crimes or torts, it is inadmissible. Evidence of a prior crime or civil wrong is excluded because of its prejudicial effect to the defendant. At least three types of prejudice arise froip the admission of other crimes or civil wrongs as evidence. First, a jury might well exaggerate the value of the other crime or civil wrong as evidence inferring that, because a defendant has committed a similar crime or civil wrong before, it can be concluded that he committed this one. Second, the jury might conclude that the defendant deserves punishment because he has been a wrongdoer in the past even where the moving party has failed to establish by the proper burden of proof that the defendant has committed the act for which he is now being tried. Third, the jury might conclude that, because of the defendant’s past acts, the evidence on his behalf should not be believed. For an in-depth discussion of the general principles of law followed in applying K.S.A. 60-455, see State v. Bly, 215 Kan. 168, 523 P.2d 397 (1974). In order for the evidence of what occurred between Mrs. Jones and Peterson to be admissible as an exception to the prohibition of 60-455, it must be evidence of a prior crime or civil wrong occurring on a specific occasion. We do not believe that Peterson’s encounter with Mrs. Jones was a crime or civil wrong. Therefore, the evidence of that encounter could not be admitted as an exception to the prohibition of 60-455. We do believe that the evidence of the encounter has a direct bearing on the offense for which Peterson was charged. It was one of the acts and circumstances which was an incident to the litigated act and which was illustrative of the act, and, therefore, a part of the “res gestae.” Prior to the adoption of the Code of Civil Procedure, Kansas courts spoke of “res gestae” as one of the exceptions to the prohibition against the introduction of hearsay into evidence. The res gestae exception to the admissibility of hearsay dealt with declarations made before, during or after the happening of the principal occurrence. These declarations were admissible as part of the res gestae where the declarations were so closely connected with the principal occurrence as to form in reality a part of the occurrence. The adoption of 60-460(d) replaced the res gestae exception with the contemporaneous statement exception to the hearsay rule. Res gestae is a broader concept than an exception to the hearsay ride. It actually deals with admissibility of evidence of acts or declarations before, during or after happenings of the principal event. Those acts done or declarations made before, during or after the happening of the principal occurrence may be admitted as part of the res gestae where those acts or declarations are so closely connected with the principal occurrence as to form in reality a part of the occurrence. State v. Sherry, 233 Kan. 920, 667 P.2d 367 (1983). Res gestae includes those circumstances which are automatic and undesigned incidents of the particular litigated act, which may be separated from the act by lapse of time but are illustrative of such act. It is the whole of the transaction under investigation or being litigated and every part of it. Acts done or declarations made before, during or after the principal occurrence may be admissible as part of the res gestae to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. We believe the incident that occurred between Mrs. Jones and Peterson formed a part of the res gestae made before the happening of the principal occurrence; that the incident was so closely connected it formed in i'eality a part of the occuri'ence and was properly admitted as part of the res gestae. The Kansas Code of Civil Procedure px-ohibits the introduction into evidence of a statement which is made other than by the witness testifying at the hearing which is offered to prove the truth of the matter stated. Thirty exceptions to the prohibition against the admission of hearsay evidence are set out in K.S.A. 60-460. Hearsay evidence derives its value, not only from the witness testifying upon the stand, but more importantly from the veracity and the competency of some other person. Since the declarant is not present and available for cross-examination, both the court and jury are without opportunity to test the credibility of the hearsay statements by having the person who spoke the words before them. One of the reasons for the exclusion of hearsay -statements is that the person who made such statement has not been placed under oath and the declarant is not responsible for the crime of perjury for making a willful, false statement. Exceptions to the hearsay rule were created in the interest of justice. These exceptions are allowed because of the circumstantial guarantee of the trustworthiness of the evidence offered. The circumstantial guarantee is a substitute for the oath of the declarant and his cross-examination by the party against whom the hearsay is admitted. K.S.A. 60-460(d) allows the introduction into evidence of a statement that was made (1) while the declarant was perceiving the event or condition which the statement narrates, decribes, or explains, (2) while the declarant was under the stress of a nervous excitement caused by such perception, or (3) if the declarant is unavailable as a witness, those statements made by the declarant at the time when the matter had been recently perceived by the declarant and while the declarant’s recollection was clear and was made in good faith prior to the commencement of the action and with no incentive to falsify or distort. In State v. Berry, 223 Kan. 566, 575 P.2d 543 (1978), this court allowed the admission of a statement made by a victim to police officers eight days following the shooting. At the time of trial, the declarant had died. This court determined that the victim’s recollection of the events were clear, that the statement had been made in good faith prior to the commencement of the action, and that the statement was made with no incentive to falsify or distort. The requirements of the statute were fulfilled and the trial court’s admission of the statement into evidence was proper. This exception to the hearsay rule was recently considered in State v. White, 234 Kan. 340, 673 P.2d 1106 (1983). In White, the defendant was convicted of the offense of aggravated robbery. Officers received information that a small boy had been left unattended in a black and gold Cadillac. Upon their arrival at the scene, police officers found Joseph Jackson and his one-year-old brother in the Cadillac. Joseph told officers that a man named Wallace had brought them there and had left in another car driven by his father, Howard White. The children were taken to police headquarters. Thinking that the Cadillac might be a possible getaway car, the police staked out the area. Shortly thereafter, a black man ran to the car and got in it. Police officers, while following the car, received word of a holdup at a nearby bank by two black males driving a Buick. Officers had spotted a Buick matching the description of the suspects’ car a short distance from where the Cadillac had been parked. Officers later arrested White. At the time of the trial, Joseph Jackson could not be located. The statements made to the officers explaining why he and his younger brother were alone in the car and where the driver had gone were admitted into evidence. Jackson’s statement was made shortly after he and his brother had been left alone in the car. It was doubtful that a six-year-old would make a statement except in good faith and there was no reason or incentive to falsify or distort the statement. The statements were made prior to the commencement of a criminal prosecution and were admissible under the exceptions to the hearsay rule. In this case, there is no question that Mrs. Jones was unavailable as a witness since she had died prior to trial; nor that Mrs. Jones’ statement to her daughter was one describing or narrating an event. The matter described by. Mrs. Jones had been recently perceived by her and the statement was made on the same day or the following day while her memory was fresh. Under the circumstances, the statement was made in good faith, before there was an action pending. There was no incentive for Mrs. Jones to falsify or distort her statement. Any possible motive for Mrs. Jones to falsify the statement was absent. Defendant argues that the trial court never made findings required by K.S.A. 60-460 for the admission of a hearsay statement. We disagree. During-a hearing outside the presence of the jury, the court stated: “This court is not going to spend a great deal of time on the subject matter of hearsay. The court has heard Mrs. Dalton’s testimony and the testimony relates to conversations she had with her mother, now deceased. The conversation was given at a time when there could have been no motivation as to the innocence or guilt of the defendant Peterson. It cannot be described as a dying declaration, but the court is satisfied that the hearsay aspect of the conversation is not such that it should be ruled inadmissible.” The trial court correctly determined that the statement of Mrs. Jones had satisified the foundation requirements for admissibility into the evidence. Defendant finally complains that the trial judge failed to give an instruction limiting the purpose for which Mrs. Jones’ and Peterson’s encounter was to be considered. If admitted as an exception to 60-455 it was error not to give a limiting instruction. In every case where evidence of other crimes or civil wrongs is admitted pursuant to 60-455, the trial court should give an instruction limiting the purpose for which evidence of a similar offense or civil wrong is to be considered. State v. Bly, 215 Kan. 168, 176, 523 P.2d 397 (1974). Where evidence has a direct bearing on or a relation to the commission of the offense itself, forming a part of the res gestae, such evidence is admissible without a limiting instruction. Under the facts of this case, the trial court was not required to give a limiting instruction because that evidence formed a part of the res gestae. Affirmed. Holmes, J., concurring in the result.	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The opinion of the court was delivered by Lockett, J.: This is an appeal of a trial court’s allowance of attorney fees following remand from this court. This is the fourth appeal of matters concerning the estate of Owen R. Robinson and the second appeal concerning the awarding of attorney fees under K.S.A. 59-1504. The facts as stated in In re Estate of Robinson, 232 Kan. 752, 659 P.2d 172 (1983) (Robinson III), are applicable as background for this appeal. On September 2, 1965, after 35 years of marriage, Owen and Sally Robinson were divorced. The following day Owen executed a will leaving all of his property to his nephew and niece, R. Michael Jennings and Anne Jennings Irving (hereinafter collectively referred to as “Jennings-Irving”). Approximately one year later Owen and Sally Robinson remarried. On August 16,1976, Owen suffered a severe stroke. On September 22, 1976, Owen executed a new will leaving all of his property to his wife, Sally. Owen died on June 26, 1978. Sally sought to have the 1976 will admitted to probate. Jennings-Irving challenged the will. The trial court found that Owen had testamentary capacity at the time of the execution of the 1976 will but concluded that the will was invalid for violation of K.S.A. 59-605 relative to wills prepared by principal beneficiaries. Sally appealed. May 8, 1982, we reversed the judgment, remanding the case to the trial court with directions to admit the 1976 will. In re Estate of Robinson, 231 Kan. 300, 644 P.2d 420 (1982) (Robinson I). After its rejection of the 1976 will, but prior to our order to admit the 1976 will, the trial court held an evidentiary hearing as to the validity of the 1965 will and ultimately admitted the will to probate. Sally appealed from the admission of the 1965 will. May 8, 1982, this court in an unpublished opinion reversed the trial court. In re Estate of Robinson, No. 53,230 (Robinson IT). On January 25, 1982, while the appeals were pending, the trial court held a hearing on the Jennings-Irving petition for allowance of attorney fees for services rendered in district court case No. 78-P-188 (1965 will) and district court case No. 78-P-119 (1976 will). The petition sought allowance solely for Jennings-Irving’s promotion of and opposition to the respective wills. No claim was made for any services to the fiduciary administering the estate. Attorney fees and expenses were allowed Jennings-Irving as follows: (1) $42,800.00 attorney fees to the law firm Foulston, Siefkin, Powers & Eberhardt; (2) $3,506.92 expenses to the same firm, and (3) $17,500.00 attorney fees to the law firm Bond, Bond & Coash. The trial court ordered said fees and expenses in single sums without apportionment between the two cases. When reviewing the award of Jennings-Irving attorney fees in Robinson III, this court held that the trial court erred in preventing attorneys for Sally Robinson from examining a computerized time sheet breaking down the time and expenses of the Foulston firm; that no attorney fees were to be allowed to Jennings-Irving for attorney services rendered in opposing the 1976 will (Robinson I); and that the attorney fees and expenses incurred in the Jennings-Irving unsuccessful opposition to the 1976 will (Robinson II) could not be linked to the attorney fees and expenses incurred in promoting admission of the 1965 will. We reversed and remanded with directions to hold a new hearing on the Jennings-Irving petition for allowance of attorney fees and expenses wherein: (1) all documentary evidence upon which said allowance request is based shall be a part of the record and made available to opposing counsel; (2) the basis on which attorney fees are allowed be made a part of the record in sufficient detail as would permit meaningful appellate review if necessary; and (3) allowance may be made for those reasonable fees and expenses directly incurred by Jennings-Irving as proponents of the 1965 will but excluding any services attributable to the opposition of the 1976 will. The burden of proof is, of course, on Jennings-Irving. (Robinson III) On June 22, 1983, a new evidentiary hearing, as directed in Robinson III, was held before the judge who had presided at all of the prior probate proceedings. At the hearing, petitioners entered into evidence six exhibits which included computerized time records for legal services and expenses of Jennings-Irving’s counsel and other time, service and expense records. These exhibits were a computation of the total time involved in all estate proceedings, not just those relating to the efforts associated with the 1965 will. No documentary evidence was introduced which showed separately and specifically the attorneys’ time and expenses in relation to the probate of the 1965 will. Phil Frick, a member of the Foulston firm, testified that exhibits 1 and 2 were a compilation of his firm’s time records from 1978 up until the hearing, and that they were billing memos, not statements to the clients. Robert Bond, an El Dorado attorney who was associated with the Foulston firm to assist in the case, identified exhibit 4 as a partial time record of his work on the case. Exhibit 4 was prepared by Bond in the month prior to the hearing based on other records in his office. While Bond rounded off the total hours on exhibit 4 to 150, he testified that he probably spent 200 to 225 hours on the case. These hours were for all services rendered, and not limited to the 1965 will work. Richard C. Hite, who qualified as an expert on the value of the services of an attorney, gave opinion evidence for the petitioners based on his review of exhibits 1, 2,4 and 6 and petitioners’ files of the case as to the value of the legal services rendered by counsel for petitioners. Hite concluded that a $100.00 per hour rate overall would be a fair and reasonable fee; that the Foulston firm spent 954 hours on the case; and that Bond spent 200 hours on the case. Hite believed it was impossible to separate out the time for the 1965 will trial, and would allocate two-thirds of the total fee or $76,900.00 as a proper amount for work on the 1965 will case. During the proceedings respondent’s counsel attempted to place into evidence the fee agreement between Jennings-Irving and their attorneys. Mr. Frick, Mr. Bond and Mr. Hite were all asked on cross-examination if they had knowledge of the fee arrangement between Jennings-Irving and the Foulston firm. Each witness stated he had no knowledge as to whether the employment contract was based on a contingent fee, on an hourly rate, or on a mixture of the two. Respondent’s counsel called Mr. Jennings as a witness to determine the nature of the fee arrangement with the attorneys. Petitioners’ counsel objected claiming the information was privileged and irrelevant. The objection was sustained. In a memorandum opinion filed October 31, 1983, the trial court entered an allowance of attorney fees in the amount of $43,780.00 and expenses in the amount of $646.22. Respondent appeals the trial court’s decision. It is a well-established rule that attorney fees and expenses may not be allowed against the estate of a decedent unless authorized by statute. Reznik v. McKee, Trustee, 216 Kan. 659, 534 P.2d 243 (1975). K.S.A. 59-1504 is the applicable statute and states in part: “Whenever any person named in a will or codicil defends it, or prosecutes any proceedings in good faith and with just cause, for the purpose of having it admitted to probate, whether successful or not, or if any person successfully opposes the probate of any will or codicil, such person shall be allowed out of the estate his or her necessary expenses and disbursements in such proceedings, together with such compensation for such person’s services and those of his or her attorneys as shall be just and proper.” The statute provides for two classes of persons to whom fees and expenses are allowed in will contests. First, those who prosecute “in good faith and with just cause” a proceeding to admit a will, whether successful or not; and second, those who successfully oppose a will. Since Jennings-Irving did not successfully oppose the admission of the 1976 will they were denied attorney fees for those services by this court. In recognition that an estate is benefited when real controversies as to the validity or construction of a will are litigated, the statute provides for attorney fees to be paid out of the estate to a successful or unsuccessful litigant. Jennings-Irving were allowed attorney fees for their unsuccessful, good faith effort to have the 1965 will admitted to probate. This allowance is authorized upon the belief that it is a benefit to the estate as an entity to have the question determined where there is doubt as to the admission or construction to be placed upon the will. The case was remanded for the trial court to determine the necessary expenses of services of the proponents and those of their attorneys which were just and proper. Respondent argues any award of attorney fees under K.S.A. 59-1504 are to the litigant and must therefore be based on attorney fees for which the litigants are personally liable; where there is a contingency fee arrangement, unsuccessful litigants have incurred no liability, and the court cannot, therefore, award attorney fees. There are no Kansas cases construing to whom attorney fees are payable under K.S.A. 59-1504. Respondent argues that K.S.A. 59-1504 and K.S.A. 59-1717 have similar language and that cases construing 59-1717 have held that reimbursements for attorney fees are payable to the fiduciary under 59-1717 so that he can pay his attorney. K.S.A. 59-1717 states in part: “Every fiduciary shall be allowed his or her necessary expenses incurred in the execution of his or her trust, and shall have such compensation for services and those of his or her attorneys as shall be just and reasonable.” Statutory provisions for the recovery of attorney fees are compensatory and not penal and, thus, ordinary rules of statutory construction are applied. Wolf v. Mutual Benefit Health & Accident Association, 188 Kan. 694, 703, 366 P.2d 219 (1961). Therefore, the ordinary rules of statutory construction are to be applicable to both statutes. K.S.A. 59-1717 was discussed by this court in In re Estate of Bertrand, 188 Kan. 531, 363 P.2d 412 (1961). The court stated: “The provisions of 59-1717, supra, should be so construed that the fiduciary may safely procure the aid of legal advisers, and thus bind the estate for the payment of what may be found reasonable. The law contemplates that the representative will himself PAY the value of such services, and be reimbursed by receiving credit for the amount paid in settlement of his account. (2 Bartlett, Kansas Probate Law and Practice, § 1001, pp. 506 and 507.) “[I]n most jurisdictions ... an attorney must look for compensation to the personal representative who employed him, in his individual and not in his representative capacity; and for his services the executor is personally responsible.” 188 Kan. at 542. In In re Estate of Sowder, 185 Kan. 74, 340 P.2d 907 (1959), we held where there is no ambiguity in the provisions of a will but a real controversy exists as to the construction of such will on a doubtful question of law, the trial court should allow reasonable attorney fees out of the estate to the defeated as well as the successful party. In dicta, the court found the appellant was entitled to an allowance to pay the fees of his counsel. This view was restated in In re Estate of Showers, 207 Kan. 268, 485 P.2d 299 (1971). That case involved construction of a will, and we determined that costs should be assessed to the estate and the defeated litigant allowed a proper allowance to pay the attorney fees of his counsel. In all three cases, the award of attorney fees was made not to the attorneys but to the litigant who was personally liable to the attorneys. This is also the view in other states when the courts award attorney fees. See In re Katz’ Estate, 40 N.J. Super. 103, 122 A.2d 185 (1956); Carmichael v. Iowa State Highway Commission, 219 N.W.2d 658 (Iowa 1974). K.S.A. 59-1504 says that when “any person named in a will or codicil defends it, or prosecutes any proceedings in good faith . . . or if any person successfully opposes the probate of any will . . . such person shall be allowed out of the estate his or her necessary expenses.” The statute does not say that attorney fees shall be paid directly to the attorney. It says that the fees shall be paid to “such person” who defends, prosecutes or opposes. The general rule as to statutory construction is that words in common usage are to be given their natural and ordinary meaning in arriving at the proper construction of the statute. Szoboszlay v. Glessner, 233 Kan. 475, 664 P.2d 1327 (1983). The respondent is correct. Under K.S.A. 59-1504, “such person” to be allowed necessary attorney fees obviously means the person (Jennings-Irving) who defends or opposes is awarded the attorney fee, not his attorney. The attorney’s rights are derivative of his client’s rights. Only if the client has a claim to make or right to defend does the attorney become involved, and it is to his client that the attorney must look for reimbursement. The Supreme Court mandate in Robinson III said that an allowance should be made for the “reasonable fees and expenses directly incurred by Jennings-Irving.” Incur, as defined in Black’s Law Dictionary 691 (5th ed. rev. 1979), means “[t]to have liabilities cast upon one by act or operation of law ... to become liable or subject to.” Respondent claims if the attorneys for petitioners accepted the case on a contingency fee basis, then the attorneys could not collect their fee unless the judgment was in their favor. The petitioners would not become liable to the attorneys unless they had won. The happening of the contingency is a condition precedent to the right of an attorney to recover for his services and the precise event which was contemplated must happen before the attorney’s right accrues. Cain v. Tuten, 82 Ga. App. 102, 60 S.E.2d 485 (1950). Respondent claims the district court erred when it refused to allow the respondent’s attorney to question Jennings as to the fee contract with his attorneys. Petitioners argue, however, that K.S.A. 59-1504 requires payment of such fees. Paying the fees promotes the public policy behind the statute, because it allows real controversies as to the validity or construction of a will to be litigated. Evidence of the fee arrangement is necessary only to establish there was an attorney-client relationship. The trial court in Robinson III determined that there was an attorney-client contract between Jennings-Irving and the Foulston firm; therefore, no further evidence of the contract’s obligations was relevant to the issue of the amount of fees to be awarded. Petitioners, relying on Wolf v. Mutual Benefit Health & Accident Association, 188 Kan. 694, and City of Wichita v. Chapman, 214 Kan. 575, 521 P.2d 589 (1974), argue that a contingency fee arrangement is irrelevant in determining an award of attorney fees, particularly where a statute mandates payment of attorney fees. Wolf was an action for recovery of monthly benefits alleged to be payable under certain health and accident policies issued by the defendant companies. After commencement of the action, defendants paid the plaintiff all accrued monthly payments, and the plaintiff stipulated that such payment was in full settlement and agreed to dismiss the actions with prejudice. The issue of whether the defendants were liable for attorney fees under G.S. 1949,40-256 (1959 Supp.) was reserved for determination by the court. G.S. 1949, 40-256 (1959 Supp.) provided that, where a judgment is rendered against an insurance company which has refused without just cause or excuse to pay the full amount of a loss, attorney fees shall be awarded to the plaintiff. This court said: “The personal reasons why one insured may enter into a contingent fee contract should not lead a court into making an award of attorneys’ fees by taking such contract into consideration. It would be erroneous, therefore, for the trial court to consider the contingent fee contract for any reason other than to establish the employment of counsel and the purpose for which counsel were employed.” 188 Kan. at 714. The same situation is present in City of Wichita v. Chapman, 214 Kan. 575. The award of attorney fees, pursuant to K.S.A. 26-509, was made dependent by the statute upon the successful determination of the action. The issue in the case was whether the contingency fee arrangement was improperly considered in establishing the amount of attorney fees under 26-509. We said the situation under 26-509 was different from that in Wolf: “Under 26-509, supra, the court may allow as court costs an amount to be paid to the landowner’s attorney as attorney fees. Such an amount is designed to be over and above the jury’s verdict in the condemnation proceeding. But the allowance is by the statute itself made dependent upon the successful determination of the action — the rendering of a verdict by the jury in an amount greater than the appraisers’ award. Thus, the contingency of success inheres in the authorization for an allowance of an amount for attorney fees under 26-509, supra.” 214 Kan. at 587. We concluded by saying the award of attorney fees was discretionary with the court, and there was no evidence undue consideration was given to the contingency fee contract in making the award, K.S.A. 59-1504 provides for the allowance of “just and proper” attorney fees to be recovered as compensation to a person named in a will or codicil who prosecutes any proceedings in good faith and with just cause for the purpose of having it admitted to probate, whether successful or not, or to any person who successfully opposes the probate of a will. It does not intend that a fee based on a contingent fee contract be dependent on successful litigation, but only that a reasonable allowance for attorney fees be awarded to the person. K.S.A. 59-1504 has uniform operation and the same considerations should control in the award of attorney fees. An individual, by entering into a contingent fee contract, does not control the award of attorney fees under the statute; the amount awarded as attorney fees is within the discretion of the trial court. The trial court was correct when it determined the type of fee arrangement entered into between Jennings-Irving and their attorneys was irrelevant. Under K.S.A. 59-1504 it would be erroneous for the court to consider the terms and conditions of the employment contract except to establish the person’s employment of the attorney to represent him. Respondent claims that the petitioners failed to sustain their burden of proof and there was not sufficient evidence for the trial court to award attorney fees. “Burden of proof’ means preponderance of the evidence, that is the greater weight of evidence, in view of all facts and circumstances of the case. Thompson v. Dyson, 120 Kan. 591, 244 Pac. 867 (1926). The burden of proof on any point is upon the party asserting it, and it is incumbent upon that party to prove the allegations of its petition by a preponderance of the evidence. In re Estate of Wright, 170 Kan. 600, 228 P.2d 911 (1951). To determine the sufficiency of the evidence upon appellate review, this court accepts as true the evidence, and all inferences to be drawn therefrom, which support or tend to support the findings in the trial court, and disregards any conflicting evidence or other inferences which might be drawn therefrom. Where findings are attacked for insufficiency of evidence, or as being contrary to the evidence, this court’s power begins and ends with determining whether there is evidence to support such findings. Where the findings are so supported, they will not be disturbed on appeal. The trial court in its memorandum opinion explained how it reached its decision: “In making it’s decision concerning fees, the Court has utilized the exhibits and testimony presented at the hearing June 22, 1983, along with the docket sheets from the Clerk’s Office, the court file, and the Court’s own recollections from having been present at all proceedings held in this case. “Many entries on the timesheets submitted by Jennings-Irving are not specific enough to be attributed item by item to either the 1965 will or the 1976 will. However, most of the legal matters in these two cases flowed in a fairly orderly progression and the Court has been able to associate periods of increased lawyer activity with the filing of pleadings or preparation for hearings. By this method, the Court has been able to attribute blocks of lawyer time to one will or the other.” An expert witness testified as to the value of the services of the attorneys and the difficulty in determining what hours were attributable to which case. The trial judge determined to the best of his ability, based on his participation and knowledge of the case, the work and expenses attributable to the 1965 will and awarded attorney fees. The trial court should give due consideration to the opinions of the expert witnesses as to the value of legal services, but is not controlled by such evidence, since the court itself is an expert on this subject and may apply its own knowledge and professional experience in determining the value of the legal services rendered. Under K.S.A. 59-1504, when determining the compensation to be recovered for attorney fees, the trial court considers the amount and character of the services rendered; the labor, time and trouble involved; the nature and importance of the litigation or business in which the services were rendered; the responsibility imposed; the amount of money or the value of the property affected by the controversy, or involved in the employment; the skill and experience called for in the performance of the services; and the professional character and standing of the attorneys. 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The opinion of the court was delivered by Schroeder, C . J.: This is a medical malpractice action brought by George Douglas, Jr., the surviving spouse of Patricia Douglas, on his own behalf and on behalf of their infant son, Patrick Douglas, arising from Patricia Douglas’ death on December 28, 1981 at Suburban Medical Center, following administration of a local anesthetic for a Caesarean section. The suit was brought against Humana of Kansas, Inc., the operator of Suburban Medical Center, and Dr. Carl J. Lombardino, a staff anesthesiologist at Suburban who administered the anesthetic to Patricia Douglas. The action sought damages for George Douglas’ emotional distress caused by the events he witnessed, and damages sustained by the next of kin of Patricia Douglas as a result of her death. The jury found that none of the defendants were at fault. The plaintiffs moved for a new trial which was denied by the trial judge. Numerous trial errors are asserted by the plaintiffs on appeal. On December 27,1981, Patricia Douglas, age 31, was admitted to Suburban Medical Center for childbirth. Her obstetrician was Dr. Hal Younglove. At 12:00 p.m., on December 28, Mrs. Douglas was taken to the operating room where a Caesarean section was to be performed. Her husband was admitted with her to observe the delivery. Dr. Carl Lombardino, a staff anesthesiologist, was to anesthetize Mrs. Douglas in preparation for the delivery. The procedure intended was a lumbar epidural in which a local anesthetic is injected in the lower back area outside the membrane that covers the spinal cord to desensitize the nerves there. In administering a lumbar epidural, the anesthesiologist must take care not to penetrate the spinal cord because this would create too strong a block, resulting in paralysis. The anesthesiologist must also take care not to penetrate any blood vessels which are engorged during pregnancy. Penetration of the blood vessels is referred to as an intravascular injection. If an intravascular injection occurs, the body’s circulatory system carries the anesthetic to the brain within 30 seconds. Convulsions and respiratory arrest may occur. If the patient convulses and stops breathing, there is a resuscitation procedure which, if followed, will normally bring the patient back. The anesthetic involved in this case was bupivacaine, which is marketed under the name Marcaine by Breon Laboratories. At 12:20 p.m., Dr. Lombardino first injected a 3 cc. test dose of Marcaine into Mrs. Douglas and then aspirated (pulled back on the plunger of the syringe) to see if any blood would come back into the syringe. There was no aspiration of blood to indicate to Dr. Lombardino that he was in a vein. Dr. Lombardino then injected a therapeutic dose of 21 cc.’s of Marcaine at a rate of 1 cc. per second over a period of twenty seconds. At 12:25, Mrs. Douglas began having violent convulsions. Mr. Douglas was immediately taken from the room. As soon as she began convulsing, Mrs. Douglas was turned from her side onto her back. An oxygen mask was placed on Mrs. Douglas’ face simultaneously as she was placed on her back by Judy Peck, a certified registered nurse anesthetist. It took approximately 30 seconds to get Mrs. Douglas on her back. Nurse Elias testified that she entered the delivery room at 12:25 p.m. and saw Mrs. Douglas on her side having a seizure. She then assisted in turning Mrs. Douglas onto her back. She observed Nurse Peck ventilating Mrs. Douglas as soon as she had been turned. By the time Mrs. Douglas was on her back, Dr. LaSalle, a staff anesthesiologist, had been called “stat” (meaning “come now - immediately”). Dr. Younglove, the obstetrician, was also summoned. There is some dispute as to whether a formal Code Blue was ever called, but the testimony established that all of the necessary doctors were present when needed. Nurse Elias testified that she did not call a Code Blue because all of the right doctors were present. Mr. Douglas testified that he heard a Code Blue call on the intercom. Mrs. Douglas was given 200 mg. of Pentathol after she was on her back. Pentathol was given for the purpose of stopping the seizure. She was also given 40 mg. of Succinylcholine to relax her jaw so that she could be intubated. Dr. Lombardino then unsuccessfully attempted intubation. Dr. LaSalle arrived within 15-30 seconds after this attempt and successfully intubated Mrs. Douglas within ten seconds. At that time, Nurse Peck was also giving closed chest massage which she continued to administer. The intubation was completed sometime between 12:27 and 12:30 p.m. Nurse Elias testified that she listened to the fetal heart tones at 12:28 and remembers that Mrs. Douglas had been intubated at that time. CPR was started at 12:27 p.m. Dr. Younglove, the obstetrician, arrived in the operating room at 12:27 p.m. He testified that Mrs. Douglas had been intubated by 12:29. Intubation had to have been completed before he could begin delivery. The delivery took between 30 seconds and one minute, and at 12:30 p.m. a viable male infant was delivered. After Dr. LaSalle was in the room, Mrs. Douglas was hooked up to a monitor and it was determined that her heart was in ventricular fibrillation, meaning her heart was moving irregularly and abnormally without generating any blood pressure. Defibrillation was first attempted after the baby was born but before the incision was closed, sometime between 12:33 and 12:35 p.m. At 12:35 p.m. Mrs. Douglas was given an ampule of sodium bicarbonate to balance the acid that is produced in the blood as a result of the convulsions. This dose was repeated at 12:40 and at 12:45 and again at 12:55. The blood gas was first read at 1:00 and indicated that, although Mrs. Douglas was well oxygenated, her acidity was too high. This was brought to within the normal range by 1:30. The resuscitation measures were continued for two and one-half hours after Mrs. Douglas first convulsed. She was finally pronounced dead at 3:03 p.m. At trial, the plaintiffs alleged that Mrs. Douglas died as a result of the inappropriate administration of the regional anesthetic and the subsequent incorrect and substandard behavior of Dr. Lombardino in attempting to resuscitate her and by the inappropriate preparations by the hospital for drug availability in case of emergency. The defendants’ position was that Dr. Lombardino was not negligent, that he followed all recognized procedures, that all drugs were available when needed, and that the reason-for Mrs. Douglas’ death was her reaction to the cardiotoxic nature of Marcaine — a fact unknown to anyone at the time ofher death. The plaintiffs’ position was based on the common medical belief at the time that an anesthetic injected directly into the bloodstream interferes with respiration, and morbidity or mortality is a result of this lack of oxygen to the brain which is preventable by proper resuscitative measures. The plaintiffs’ expert witness, Dr. Abouleish, a well-qualified anesthesiologist, expressed the opinion that Mrs. Douglas died because of substandard resuscitative measures, including too large a dose of Pentathol after the convulsion occurred which added to the depression of her heart, too small a dose of Succinycholine to completely relax her, and too long a delay in the administration of sodium bicarbonate. He also testified that the hospital was negligent because the emergency resuscitative drugs were not immediately available in the operating room. The experts called by the defendants stated they believed Dr. Lombardino had followed acceptable medical practice. Both the defendants’ experts and the plaintiffs’ experts testified that the intravascular injection of Marcaine was inadvertent. The reason there was no aspiration of blood into the syringe was probably due to a collapse of the blood vessel wall against the needle. The defendants’ expert, Dr. Shnider, testified that while the test dose of 3 cc.’s might not have been enough to determine if the injection was in a blood vessel, it was a dose commonly recommended and would indicate if the needle was in the spinal area. The defendants’ experts, Dr. Albright and Dr. Shnider, both testified that the amount of Marcaine given and the rapidity of its injection were well within the standard of care in December of 1981 and did not exceed the manufacturer’s recommended dosage. Dr. Lombardino testified that all the resuscitative medications were drawn out and ready prior to the time that the procedure started; someone had to go across the hall to get the tray of medicine, but they were available as soon as he needed them. Nurse Peck recalled that the medications were already in the room. Both Dr. Shnider and Dr. Albright testified that the amounts of Pentathol and Succinycholine given were within the standard of care. Although Dr. Shnider would have recommended less Pentathol, he testified that Pentathol does not cause the heart to go into fibrillation, which is what happened to Mrs. Douglas. He further testified that the amount of Succinycholine was appropriate because it did what it was supposed to do - it relaxed her enough to be intubated. Dr. Shnider also testified that although ideally a blood gas test should have been taken earlier, under the circumstances of the delivery of the baby and the closed chest massage, the doctors did the best they could. The amount of sodium bicarbonate given prior to the blood gas test was within the recommended amount. After the defendants’ experts testified that Dr. Lombardino had followed acceptable medical practice in attempting to resuscitate Mrs. Douglas, they stated that the only reasonable explanation of Mrs. Douglas’ death was that the anesthetic she was given — Marcaine — was cardiotoxic. According to this theory, in a small number of cases when the anesthetic is injected intravascularly it directly depresses the heart and prevents resuscitation. This is opposed to the usual case where cessation of the heart is secondary to lack of oxygen which is caused by the paralysis of the brain. The defense theory was based on the testimony of Dr. Albright and Dr. Shnider, both highly respected and qualified anesthesiologists. The evidence showed that in 1979, Dr. Albright had published an editorial proposing his hypothesis that Marcaine could be directly cardiotoxic. He wrote this editorial after learning of several instances of sudden cardiac arrest following injection of Marcaine into the patient’s vein. In May of 1980, after learning of other similar incidents, Dr. Albright published an abstract of his theory entitled “Cardiac and CNS Reactions to Etidocaine and Bupivacaine.” In May of 1981, the United States Food and Drug Administration convened hearings of its special Anesthetic and Life Support Drug Advisory Committee in connection with Dr. Albright’s hypothesis. Dr. Albright was not present at the meeting. Dr. Albright was present at the next meeting in May of 1982. At that meeting, the FDA concluded that the theory was not proven and that laboratory confirmation was needed before they could conclude that this drug had more cardiotoxicity than any other clinically used drug. Dr. Albright expressed his opinion that Mrs. Douglas died as a result of the direct cardiotoxicity of Marcaine. In his testimony, he stated that .75% Marcaine (the recommended concentration which was used on Mrs. Douglas) should be reduced. He acknowledged that at the time of trial, the consensus in his field did not share his opinion as to the cardiotoxicity of Marcaine. Dr. Shnider, also an expert for the defense, testified that he had performed animal (sheep) studies as a result of reading the Albright theory. The validity of the test method he employed is not at issue. Basically, he compared Marcaine to another local anesthetic, Xylocaine. After conducting two studies, he found that none of the sheep injected with either a low dose or high dose of Xylocaine died, and none developed ventricular arrhythmias (fibrillation). However, one out of six sheep injected with a low dose of Marcaine died, and all six sheep injected with the high dose of Marcaine died. Even the sheep that did not die with the low dose of Marcaine did get serious ventricular arrhythmias. All the proper resuscitative measures were taken with each of the sheep. Dr. Shnider expressed the opinion that his sheep studies gave a proper representation of how the drug would act in humans. He also opined that with respect to humans, Marcaine is cardiotoxic in normal therapeutic doses when accidentally injected into a blood vessel. He testified that he now recommends a test dose of Marcaine mixed with Epinephrine which would indicate to the anesthesiologist whether he was injecting into a vein. This procedure was also recommended by the FDA at their 1982 meeting. Dr. Shnider testified that Dr. Lombardino acted properly in attempting to resuscitate Mrs. Douglas and in his opinion her death was due to the cardiotoxic effect of Marcaine. At the time this case went to trial, only part of Dr. Shnider’s sheep study had been published. He was in the process of writing an article and preparing an abstract for presentation. The FDA did not have any of Dr. Shnider’s data on the second sheep study at the time of its May 1982 meeting. The plaintiffs sought to prove that the theory held by Dr. Albright and Dr. Shnider is not held by the medical community as a whole and is based on insubstantial evidence. Dr. Abouleish, plaintiffs’ expert, attacked in detail the conclusions of Albright and Shnider. The evidence of the cardiotoxic nature of Marcaine was admitted over the objection of the plaintiffs. At the close of the trial, the jury was instructed on this theory and the plaintiffs now claim this was error. The jury was instructed to compare the fault of the drug’s manufacturer, Breon, if they found that Marcaine was cardiotoxic. The plaintiffs claim this was error as Breon had not been joined and there was no evidence presented by which to establish its legal liability. Also over plaintiffs’ objection, the court allowed testimony of the theory that Mrs. Douglas had an anaphylactic (severe allergic) reaction to Marcaine. Dr. Pham, who performed the autopsy, expressed this opinion in his autopsy report. Based on Dr. Pham’s report, Dr. Younglove testified that the death of Mrs. Douglas was caused by an anaphylactic reaction. All experts agreed that this conclusion was probably not correct, but Dr. Shnider and Dr. Albright believed it was natural for a pathologist to reach this conclusion based on the autopsy findings. The court submitted this issue to the jury. After deliberating, the jury returned a verdict that Dr. Lombardino, the hospital, and Breon were all free from fault. The plaintiffs first contend that the trial court erred in submitting two different standard of care instructions for the jury to use in evaluating Dr. Lombardino’s conduct. The court included both PIK Civ. 2d 15.01 and PIK Civ. 2d 15.12 (1981 Supp.) in its instructions to the jury. These instructions read as follows: 15.01. “In performing professional services for a patient, a (physician)(dentist) has a duty to use that degree of learning and skill ordinarily possessed and used by members of his profession and of his school of medicine in the community in which he practices, or in similar communities, and under like circumstances. In the application of this skill and learning the (physician)(dentist) should also use ordinary care and diligence. “A failure to do so is a form of negligence that is called malpractice.”(Emphasis added.) 15.12. “A (physician)(surgeon) who holds himself out to be a specialist in a particular field of medicine must use his skill and knowledge as a specialist in a manner consistent with the special degree of skill and knowledge ordinarily possessed by other specialists in the same field of expertise at the time of the (diagnosis) (treatment).” Plaintiffs argue that since it was clearly established at trial that Dr. Lombardino was a specialist, the giving of both instructions had the potential of misleading the jury. Plaintiffs contend that the two instructions are “inconsistent” and cite the Notes on Use for PIK Civ. 2d 15.12 (1981 Supp.), which state in part: “This instruction should be used rather than PIK 15.01 when the defendant has held himself out as being a specialist in an area commonly recognized as such in his profession. If there is a dispute as to which standard is applicable in light of the evidence in the case, both instructions should be given, with the appropriate modifications being made if necessary to avoid confusion for the jury.” While the Notes on Use do provide guidelines, they are not authority on which we rely. PIK Civ. 2d 15.12 more clearly defines the duty of a specialist, but we do not find it inconsistent with PIK Civ. 2d 15.01. Before the enactment of PIK Civ. 2d 15.12, PIK Civ 2d 15.01 was used to define the duty of a specialist as well as that of a general practitioner by stating that a physician was to use that degree of learning and skill ordinarily possessed and used by members “of his school of medicine.” The comment to PIK Civ. 2d 15.01 explains what is meant by “his school of medicine”: “A doctor is entitled to be judged according to the standards of the particular school of medicine to which he belongs. If a doctor is a specialist and the patient accepts treatment with that understanding, it is the generally accepted rule that a physician, surgeon or dentist who holds himself out to be a specialist is bound to bring to the discharge of his professional duties as a specialist that degree of skill, care, and learning ordinarily possessed by specialists of a similar class, having regard to the existing state of knowledge in medicine, surgery and dentistry, that is, a higher degree of skill, care, and learning than that of the average practitioner.” In this case, it was clearly established that Dr. Lombardino, as an anesthesiologist, was a specialist. A reading of the record reveals that all “standard of care” testimony was clearly that of standard of care of a specialist. Since there was no dispute in the evidence that the defendant was a specialist, the jury could not have been confused on this point. The PIK Civ. 2d 15.01 instruction gave the jury a frame of reference so they could see that Dr. Lombardino, as a specialist, was being held to a higher degree of care than a general practitioner. If there had been a dispute in the evidence as to whether Dr. Lombardino was a specialist, then the giving of both instructions, without modifications or explanations, might have been confusing. But, in this case, there was no dispute. Instructions are to be considered together and read as a whole, without isolating any one instruction; if jury instructions properly and fairly state the law as applied to the facts of the case when considered as a whole, and if the jury could not reasonably be misled by them, the instructions should be approved on appeal. Powers v. Kansas Power & Light Co., 234 Kan. 89, 671 P.2d 491 (1983). We do not find that the jury could have been misled by the two instructions given on the standard of care. The plaintiffs cite several cases from other jurisdictions which they contend support their position that it is reversible error to instruct the jury as to both the general practitioner standard of care and the specialist standard of care. After reviewing these cases, we find that none of them stand for that proposition. In Atkins v. Clein, 3 Wash. 2d 168, 100 P.2d 1 (1940), the jury was given one instruction that a specialist was to be held to the knowledge and skill of like specialists, and another instruction that a specialist was to be held to the degree of care and skill used by physicians generally. Since the latter instruction was incorrect and clearly in conflict with the first instruction, the court found reversible error. No such error was made in the instructions in the present case. Similarly, in McPhee v. Reichel, 461 F.2d 947 (3rd Cir. 1972), the trial court gave three different standards to apply to a specialist, some of which were incorrect. One of the instructions referred to the care which “he would exercise based on his ability, his background, and his expertise.” 461 F.2d at 951. The other cases relied on by plaintiffs are simply not in point because no specialist instruction was given when the doctor was a specialist. See Coleman v. Wilson, 85 N.J.L. 203, 88 A. 1059 (1913); Robbins v. Footer, 553 F.2d 123 (D.C. Cir. 1977); Stevens v. Duxbury, 97 Nev. 517, 634 P.2d 1212 (1981). Since we find no case which supports plaintiffs’ position, and since we believe the instructions were not conflicting or confusing, we find that there was no error by the trial court in submitting the two instructions. The plaintiffs’ next contention is that the trial court erred in admitting evidence of an anaphylactic reaction to Marcaine and in submitting the issue to the jury. Dr. Pham, the hospital’s pathologist, performed the autopsy of Mrs. Douglas. In his report, he concluded: “The possibility of an anaphylactic reaction to Marcaine is likely to be the cause of shock of this patient, particularly with the immediate onset of cardiac arrest and seizures following injection. The pathological findings of massive edema and congestion of the visceral organs are changes consistent with shock of various causes including an anaphylactic reaction.” Dr. Younglove, the treating obstetrician, concluded in the discharge summary of the hospital chart that the cause of death was an anaphylactic reaction. He based his opinion on Dr. Pham’s report. Dr. Pham was unavailable to testify at trial. The defendants, in order to introduce the “anaphylactic theory” as a defense in this case, sought to introduce the entire pathological report of Dr. Pham as well as the testimony of Dr. Younglove about his conclusions. Plaintiffs submitted two motions in limine on this issue: a motion to exclude the opinion portion of the autopsy report and opinion evidence of Dr. Pham, and a motion to exclude discharge summary and case summary opinions for medical records. These motions were argued prior to trial. We note that at all times, plaintiffs sought only to exclude the opinion portion of the autopsy report by Dr. Pham and the hospital record which contained the opinion of Dr. Younglove. At no time did the plaintiffs move to exclude all evidence or testimony concerning the anaphylactic theory. During the pretrial hearing on the motion in limine, the following statements were made: “[Defense counsel] . . . So, I think you’re taking a big step by saying we’re not even going to mention anaphylactic reaction. “[Plaintiffs’ counsel]: I don’t think I’ve asked you to say that. “[Defense counsel]: We’re going to say the evidence of anaphylactic reaction is the conclusion of Dr. Pham and Dr. Younglove. “[Plaintiffs’ counsel]: Younglove will be here to testify. I’m just asking that the portion of the record that’s conclusional be kept out and they can get into anaphylactic reaction if they’ve got significant admissible evidence on it.” In the argument concerning the exclusion of the hospital record which contained Dr. Younglove’s opinion on an anaphylactic reaction; plaintiffs’ counsel admitted that the motion was moot if, in fact, Dr. Younglove was going to appear and testify. The trial court originally sustained the motion in limine- with respect to the autopsy, but reserved the option of changing the ruling. The trial court denied the motion concerning the hospital record. Later, the court did allow the autopsy report to be admitted in its entirety, including the conclusion that the cause of death was an anaphylactic reaction. Prior to this ruling, plaintiffs’ counsel expressly waived any objections they may have had about the defense being allowed to cross-examine Dr. Abouleish, plaintiffs’ expert, on the possibility of an anaphylactic reaction. Also, prior to this ruling, plaintiffs’ counsel questioned Dr. Abouleish about this theory. Subsequent to the denial of the motion in limine on the autopsy report, the defendant called Dr. Albright to the stand. When he was asked to comment on Dr. Pham’s conclusion in the autopsy report, the plaintiffs’ counsel did not object. The entire autopsy report was read into evidence later in the trial without any objection from plaintiffs. K.S.A. 60-404 provides: “A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.” As stated, the plaintiffs did not file a motion in limine to exclude all evidence, and opinions thereof, of an anaphylactic reaction. As to this evidence outside the scope of the motion, plaintiffs failed to make contemporaneous objections when it was introduced and, in fact, the plaintiffs’ counsel elicited testimony from several witnesses on this theory. The failure of plaintiffs to object contemporaneously to this evidence prohibits them from complaining about its admission. State v. Phipps, 224 Kan. 158, 578 P.2d 709 (1978). Similarly, the failure of plaintiffs to object to the reading of Dr. Pham’s conclusion in the autopsy report constitutes a waiver of any objection they had to the court’s denial of the motion in limine. As stated in Reeve v. McBrearety, 8 Kan. App. 2d 419, 660 P.2d 75 (1983): “When a motion in limine is denied, the moving party must object to the evidence at the trial to preserve the issue on appeal. See Annot., 63 A.L.R. 3d 311.” 8 Kan. App. 2d at 422. Therefore, the plaintiffs waived any claimed error by failing to contemporaneously object to the admission of this evidence. Plaintiffs also claim that it was error to submit the issue of an anaphylactic reaction to the jury. Instruction No. 9 stated in part: “The defendants claim that the cardio.toxic or allergenic nature of Marcaine made resuscitation impossible.” When this instruction was read .to the jury, plaintiffs stated, “no objection.” Pursuant to K.S.A. 60-251(b), a party cannot assign as error the giving of an instruction unless the party objects to the same before the jury retires, unless the instruction is clearly erroneous. See also Powers v. Kansas Power & Light Co., 234 Kan. at 92. We do not believe this instruction was “clearly erroneous.” The plaintiffs argue that there was not proper foundation for the giving of this instruction because such a theory was derived from “mere speculation” on the part of Dr. Pham. They also argue that the unanimous testimony of the experts in the field was that there was no basis for a finding that an anaphylactic reaction was the cause of death. We disagree with both of these contentions. Although Dr. Pham used the word “possibility” in his conclusion, this does not indicate his conclusion was mere speculation. When the report is taken as a whole, the conclusion reflects a professional opinion as to the cause of death and is admissible. Nunez v. Wilson, 211 Kan. 443, Syl. ¶ 2, 507 P.2d 329 (1973). Both Dr. Shnider and Dr. Albright testified it was understandable that Dr. Pham reached this conclusion. We have found that this issue was voluntarily tried by all parties. Even though the evidence as to the cardiotoxicity of Marcaine was more abundant, and probably more persuasive than this theory, we feel it was for the jury to weigh the evidence given. We agree with the following statement by the trial court in its memorandum opinion: “I do not believe there was any confusion on the part of the jury as regards to the question of anaphylactic reaction. Although one might have desired a quicker admission that this was not a viable diagnosis, the fact that the pathologist and treating physician thought her reaction was an anaphylactic one underlined the defendants’ position that if Dr. Lombardino’s actions were correct, the only explanation had to be a physical reaction .by Mrs. Dpuglas to the drug. The fact that the defendants' evidence later showed that it could not have been an anaphylactic reaction and was more probably a cardiotoxic reaction, does not make the evidence inadmissible. The Court believes it was appropriate to allow the evidence in both as a portion of the medical record and as a reflection of the belief of some of the physicians involved that the death was not due to physician error.” The plaintiffs argue that the instruction on anaphylactic reaction prejudiced them because the only possible explanation of the verdict finding no one at fault was that the jury concluded Mrs. Douglas died of an anaphylactic reaction. This contention is without merit. It is more likely that the jury found Marcaine to be cardiotoxic and found Breon, the manufacturer, free from fault because it had complied with FDA labeling requirements and had no reason to know of the possible danger of Marcaine. For these reasons, we hold that it was not error to either allow into evidence the anaphylactic reaction theory or to instruct the jury on that theory. The plaintiffs next contend the trial court erred in admitting evidence concerning the theory that Marcaine is cardiotoxic and in submitting this issue to the jury as a possible cause of Mrs. Douglas’ death. They also contend the court erred in instructing the jury to compare the fault of Breon, the manufacturer of Marcaine, who was not joined as a defendant in this action. Prior to the trial, the plaintiffs filed a motion in limine to exclude all testimony that Marcaine may be cardiotoxic. This motion was overruled by the court. The plaintiffs at no time renewed their objection when the evidence was offered at the time of trial. For the same reasons and authorities previously cited in regard to the plaintiffs’ failure to contemporaneously object to the anaphylactic reaction evidence, the plaintiffs are not in a position to claim error on the admission of this evidence. Also, the plaintiffs did not object when the instruction on the cardiotoxicity of Marcaine was read to the jury. Again, by failing to object, the plaintiffs waived their right to assert error in the giving of this instruction. Even if the plaintiffs had properly objected to the evidence and the instruction to the jury, we believe this evidence was properly admitted into evidence and submitted to the jury. In Kansas, the admissibility of expert testimony is governed by K.S.A. 60-456(b), which states: “If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.” The evidence clearly established that Dr. Shnider and Dr. Albright were experts in the field of anesthesiology. They testified as to their opinions based on facts and data perceived by them. The fact that their opinions were not as yet accepted by the majority of the medical community does not mean the jury should not have heard their opinions. The plaintiffs have cited no authority which would support such a “majority rule” approach. Most of the cases on which plaintiffs rely deal with a different evidentiary issue than the one herein involved. Those cases deal with the admissibility of new scientific tests or techniques, rather than an opinion arrived at through accepted tests and techniques. In Tice v. Richardson, 7 Kan. App. 2d 509, 644 P.2d 490 (1982), the issue was whether human leucocyte antigen tests were a scientifically recognized method to prove paternity. The scientific recognition of tests or methods was also involved in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); State v. Washington, 229 Kan. 47, 622 P.2d 986 (1981); Reed v. State, 283 Md. 374, 391 A.2d 364 (1978); and United States v. Brown, 557 F.2d 541 (6th Cir. 1977). It is true that a new scientific procedure or test must have a certain degree of reliability before it may be offered as evidence to prove a proposition; however, in the instant case, the procedure involved (animal tests) is not at issue. Plaintiffs cite two other cases which, although they do not deal with a test or procedure, are also distinguishable from the case at bar. In Matter of Miller v. Nat. Cabinet Co., 8 N.Y.2d 277, 204 N.Y.S.2d 129, 168 N.E. 2d 811 (1960), the plaintiff sought to introduce testimony from a doctor of a possible connection between leukemia and exposure to a certain chemical. The expert doctor testified that he believed a person exposed to the chemical might develop leukemia. In reaching its decision of whether his testimony should have been admitted, the reviewing court stated: “[The doctor] made crystal clear, however, that, when he used the word ‘possible’ in answering the hypothetical question, he meant that and nothing more. He demonstrated this beyond peradventure when he was asked on cross-examination what made him feel that this decedent’s disease resulted from the cause mentioned, by replying: ‘I didn’t say that. I was asked whether this could follow benzol. I didn’t say this particular man had it.’ ... . . . . This admission by [the doctor] that he was not testifying whether the leukemia of this decedent was caused by exposure to benzol nullifies any inference that could possibly be drawn in favor of claimant. His testimony thus loses ‘all probative force when supplemented and explained’ by the testimony which he gave on cross-examination (citations omitted).” 8 N.Y.2d at 282-83. Also, there was no statistical evidence offered in the Miller case to support a possible causal connection. For these reasons, the court found there was insufficient evidence to submit the issue of causation to the jury. In the instant case, two acknowledged experts, Dr. Albright and Dr. Shnider, testified as to their belief in the cardiotoxic nature of Marcaine and listed experimental and statistical bases for their beliefs. Therefore, their testimony was not purely conjectural as was the testimony in Miller. Also distinguishable is Puhl v. Milwaukee Automobile Ins. Co., 8 Wis. 2d 343, 99 N.W.2d 163 (1959), where the plaintiff sought to prove that the Down’s syndrome of a child was caused by a prenatal injury from an automobile accident. The doctor who testified was found by the court not to qualify as an expert on causes of the syndrome. 8 Wis. 2d at 351. The doctor did testify that he believed the accident caused the baby’s defect, but in his explanation he relied on the authority of an expert in the study of Down’s syndrome. In finding the doctor’s testimony should not have been admitted, the court stated: “True, there is usually no requirement that before an expert may give an opinion he must demonstrate that most, or all, or many other experts would agree with his opinion. However, the medical testimony given here is not of an expert in this field of medicine, and his opinion was based on the views of one authority out of several.” (Emphasis added.) 8 Wis. 2d at 353. In the case at bar, the defendants presented the two leading authorities on the study of Marcaine. Therefore, Puhl is clearly distinguishable. In State v. Churchill, 231 Kan. 408, 413, 646 P. 2d 1049 (1982), this court stated: “It is well established that the qualifications of expert witnesses and the admissibility of expert testimony are matters which lie within the sound discretion of the trial court; its rulings upon such testimony will not be disturbed on appeal, unless the appellate court finds an abuse of discretion.” There was no abuse of discretion in allowing testimony of the cardiotoxic nature of Marcaine even though the theory was not as yet widely- accepted in the field. We note that along with the “cardiotoxic” testimony, the jury also heard testimony and opinions of other experts who disagreed with the validity of this theory. The fact that this theory was a minority view goes only to the weight the jury may give it, and not its admissibility. Plaintiffs further assert that the fault of Breon should not have been determined by the jury. Because the jury was allowed to consider a possible defect in the drug - cardiotoxicity - as the cause of Mrs. Douglas’ death, the court instructed the jury that it was to compare the fault of the drug’s manufacturer, Breon. The plaintiffs did not join Breon as a defendant in this action. Kansas law authorizes the comparison of the fault of a non-joined party under K.S.A. 60-258a. See Brown v. Keill, 224 Kan. 195, 206-07, 580 P.2d 867 (1978). Since the jury found Breon was not at fault, it is impossible to see how the plaintiffs were prejudiced by the consideration of Breon’s fault. This court disregards alleged technical errors which do not affirmatively appear to have affected the rights of the complaining party. Grubb, Administrator v. Grubb, 208 Kan. 484, 491, 493 P.2d 189 (1972). Therefore, we find that it was not error to instruct the jury on comparing the fault of Breon. Plaintiffs next contend the trial court erred by denying a new trial on the ground that the jury’s verdict of “no fault” was against the weight of the evidence. The trial court’s decision to deny a motion for new trial is discretionary and shall not be disturbed in the absence of an abuse of the exercise of the power of discretion. Bott v. Wendler, 203 Kan. 212, 229, 453 P.2d 100 (1969). An abuse of discretion exists only when no reasonable man would take the view adopted by the trial court. Wilson v. American Fidelity Insurance Co., 229 Kan. 416, 422, 625 P.2d 1117 (1981). When the verdict is attacked as contrary to the evidence, the reviewing court must determine only if the evidence, with all reasonable inferences to be drawn therefrom, when considered in a light most favorable to the successful party, will support the verdict. Timsah v. General Motors Corp., 225 Kan. 305, Syl. ¶ 1, 591 P.2d 154 (1979). We find that it was reasonable for the trial court to have found there was substantial competent evidence to support the verdict, and, as such, there was no abuse of discre tion. We find persuasive the trial court’s statement on this matter in its memorandum decision: “In the instant case two acknowledged experts, Drs. Albright and Shnider, testified as to their belief in the cardiotoxic nature of Marcaine and listed the experimental and statistical bases for that belief. This belief was challenged by Dr. Abouleish and through the published opinions of other experts. “We are not dealing in this situation with insubstantial claims based on relatively uninformed sources. Whether or not Dr. Albright will eventually be proven right or wrong is not for the determination of this Court. The science of medicine is a constantly changing one. The standards of practice of today vary significantly from those of a comparatively short time ago. The types of incidents we are dealing with in thé instant case are infrequent ones which require a number of coincidental events to occur before there can be meaningful statements as to causality. As the Court understood the situation, every time a procedure of this type is attempted, there is a chance of one in one-to-two thousand that there will be an inadvertent intravascular injection of the drug, notwithstanding reasonable precautions being taken. Many times when there are inadvertent injections of these types, the patient survives. The theory has been that all patients should survive if proper resuscitative methods are used. Dr. Albright has stated that due to what he perceives as the cardiotoxic nature of Marcaine, some people, even if all proper resuscitative measures are taken, will not survive due to the basic effect of the drug, plus their individual susceptibilities to the drug and its effects. “From a clinical standpoint it would be very difficult to separate out those cases where the deaths were due to physician negligence or error and the drug’s lethal effects which overcome the resuscitative efforts. The sheep studies tended to show, at least in sheep, that Marcaine does have a cardiotoxic effect under certain conditions, sometimes fatally so. The significance of these tests was contested at trial, but the jury apparently found them to be convincing. “The Court feels that what apparently was the verdict of the jury could have been reasonably deduced from the evidence. That conclusion was that, as the defendants’ experts testified, Dr. Lombardino did what he was supposed to do, the hospital did what it was supposed to do, the physicians helping Dr. Lombardino did what they were supposed to do, and that the drug manufacturer had exercised all reasonable efforts to make a safe drug. It is significant to note that concern and evidence of Marcaine’s dangerousness was not seriously raised in the medical community by Dr. Albright and Dr. Shnider until after this event occurred. The Court feels it was reasonable for the jury to find that this was a situation where science had not progressed to the point that those involved in the procedure in 1981 could reasonably have known that Mrs. Douglas was facing a greater danger than anyone anticipated.” “. . . The Court feels that the experts and the evidence were sufficient to require the Court to submit it to the jury for consideration. To do otherwise, in the court’s opinion, would have been to purposefully exclude what appeared to be probative evidence of the true cause of Mrs. Douglas’ death. The jury could have decided that this conventional wisdom of the medical community was correct and the court would have sustained a verdict on that basis. However, the court views this as a jury question which should not be disturbed now.” Finally, the plaintiffs contend the trial court erred in denying a new trial based on newly discovered evidence. In this regard, plaintiffs claim that Dr. Lombardino’s testimony at trial concerning the number of times he performed lumbar epidurals was contrary to his deposition. They also claim that new evidence will show that Dr. Lombardino left Suburban Medical Center because his work there was unsatisfactory. Finally, plaintiffs allege that newly discovered information suggests that the routine dosage of Marcaine used at Suburban Medical Center was higher than the dosage Dr. Lombardino testified was given and the plaintiffs speculate that the hospital records were altered prior to trial. K.S.A. 60-259(a) lists five grounds for a new trial, including, “newly discovered evidence material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial.“ In Schraft v. Leis, 236 Kan. 28, 686 P.2d 865 (1984), this court set out the rule for reviewing the trial court’s decision of refusing to grant a new trial based on newly discovered evidence: “The granting or denial of a new trial on grounds of surprise or newly discovered evidence is discretionary on the part of the trial court, and will not be reversed unless a clear abuse of discretion is shown. The burden is on the party seeking the new trial to show the new evidence could not with reasonable diligence have been produced at trial. Where the party does not meet this burden, a trial court does not abuse its discretion in refusing to consider the contents of a supporting affidavit which contains the new evidence.” Syl-¶ 13. With regard to the number of epidurals performed by Dr. Lombardino and his reason for leaving Surburban, the plaintiffs have not sustained their burden of showing that they could not have discovered this “new” information prior to trial. In regard to plaintiffs’ claim that the routine dose of Marcaine given at Suburban was higher than that claimed to have been given by Dr. Lombardino, the plaintiffs’ counsel has submitted an affidavit stating that he was given this information by a witness who has since withdrawn the statement (refuses to give an affidavit). This court was presented with the same situation in Sims v. Schrepel, 208 Kan. 527, 492 P.2d 1312 (1972), where it was held that evidence in support of a motion for new trial sought on the basis of newly discovered evidence must be produced by the affidavit, deposition, or oral testimony of the witnesses themselves, and not of the attorney for the losing paity. This is in accordance with K.S.A. 60-259(g). The affidavit submitted by plaintiffs’ counsel in this case is not in compliance with 60-259(g) and a new trial will not be granted on this ground. The trial court’s denial of the motion for new trial based on newly discovered evidence was proper and we uphold that decision. The defendant, Humana, submitted a brief in which it argues that the trial court erred in submitting to the jury any question of the hospital’s negligence and that the court erred in not directing a verdict in its favor on the issue of the agency relationship. These issues are apparently a cross-appeal by Humana. Since no notice of cross-appeal was filed, we have no jurisdiction to consider these matters. Chetopa State Bancshares, Inc. v. Fox, 6 Kan. App. 2d 326, 334, 628 P.2d 249 rev. denied 229 Kan. 669 (1981). The judgment of the lower court is affirmed.	[ 112, 107, -3, -3, 58, 99, -86, 26, 115, -6, -10, 113, -83, -30, 13, 109, -65, 37, 65, 97, 113, -77, 7, 107, -10, 121, 50, -61, 115, 94, -28, -99, 73, 96, 10, 21, -30, 10, -35, 86, -116, 6, -23, -26, -45, -126, -80, 51, -36, 71, 49, 79, -93, 40, 54, -17, -84, 42, 123, -92, -128, -16, 41, -123, -35, 16, -72, 4, -100, 37, -4, 22, -103, -80, 32, -24, 48, -90, -53, 116, 33, -55, 28, 100, -18, 32, 77, -11, 96, -72, 31, -49, 13, -121, -125, 89, -15, -117, -105, -71, 120, 84, 14, 124, -20, -35, 94, -20, -110, -117, -44, -77, -50, 96, 28, 12, -25, -114, 2, 17, -39, 32, 92, 23, -5, 95, 90, -78 ]
The opinion of the court was delivered by Prager, J.: This is an administrative appeal from an order of the Board of Tax Appeals of the State of Kansas (BOTA) denying the claims of two corporate taxpayers for an exemption from taxation of certain personal property owned by them and used in the operation of their cattle feedlots. The district court of Shawnee County affirmed the order of BOTA, and the taxpayers then filed an appeal to this court. The taxpayers, appellants in this case, are T-Bone Feeders, Inc., and J & J Feeders, Inc., applicants for the exemption. The Kansas Livestock Association was permitted to intervene in the case in support of the taxpayers. The appellees participating in this appeal include Philip W. Martin, Director, Division of Property Valuation of the State of Kansas; Harley T. Duncan, Secretary of Revenue; and the Board of County Commissioners of Sherman County. They will be referred to as the taxing agencies. The claim of exemption in this case was made by the taxpayers on the basis of K.S.A. 1982 Supp. 79-20U and 79-201j, which were enacted in 1982. K.S.A. 1982 Supp. 79-201j provides an exemption from ad valorem taxation for farm machinery and equipment in the following language: “79-20lj. Property exempt from taxation; farm machinery and equipment. The following described property, to the extent specified by this section, shall be exempt from all property or ad valorem taxes levied under the laws of the state of Kansas: “All farm machinery and equipment. The term ‘farm machinery and equipment’ means that personal property actually and regularly used exclusively in farming or ranching operations. The term ‘farm machinery and equipment’ shall not include any passenger vehicle, truck, truck tractor, trailer, semitrailer or pole trailer, other than a farm trailer, as the terms are defined by K.S.A. 8-126 and amendments thereto. “The provisions of this section shall apply to all taxable years commencing after December 31, 1981.” (Emphasis supplied.) K.S.A. 1982 Supp. 79-20U, which was enacted along with 79-201j in Chapter 390, Laws of 1982, sets forth the legislative purpose of the tax exemption: “79-201Í. Purpose for farm machinery and equipment property tax exemption. It is the purpose of K.S.A. 1982 Supp 79-201j of this act to promote, stimulate and develop the general welfare, economic development and prosperity of the state of Kansas by fostering the growth and development of agricultural endeavors within the state. Agriculture, as conducted in farming and ranching operations throughout the state, is the primary basis of the Kansas economy. Communities, regions, and the state as a whole are materially dependent upon agricultural endeavors and derive substantial financial benefit from the success of Kansas agriculture. Farming and ranching operations require the investment of large sums of capital for the purpose of providing the land on which the operations are conducted, and the farm machinery and equipment necessary to satisfactorily carry out such endeavors. Because of agriculture’s unique requirements of substantial capital investment, the property tax burden becomes a deterrent to such investment and, in some instances, an encouragement to farm and ranch abandonment. Kansas, and all its citizens, will benefit from any improvement in the economic environment of Kansas agriculture. The exemption from the ad valorem property tax of farm machinery and equipment actually and regularly used in farming and ranching operations will constitute an incentive to agriculture and will improve the general economy of the state. Considering this state’s heavy reliance on agriculture, the enhancement of agricultural endeavors is deemed to be a public purpose which will promote the general welfare of the state and be for the benefit of the people of the state.” (Emphasis supplied.) In order to determine the question of exemption raised in this case, it is necessary to interpret the legislative intent as expressed in the two statutes set forth above and to apply the same to the undisputed factual circumstances present in this case. Simply stated they are as follows: T-Bone Feeders, Inc., and J & J Feeders, Inc. (the taxpayers) are separately engaged in the commercial feedlot business. T-Bone Feeders, Inc., is a Kansas corporation, 97% owned by members of the House family, who are responsible for the management of the feedlot which has a capacity of 5,500 head. Recent occupancy varies from 3,700 to 4,200 head, of which approximately 70% are owned by the House family. In 1983 the family’s cultivated farming operations included 6,030 acres owned by them and 3,840 acres leased from others, on which land they produced a substantial part of the grain and other foodstuffs fed to feedlot cattle. J & J Feeders, Inc., is a Kansas corporation, wholly owned by John Cogswell who also owns and operates one hundred quarters (25 sections) of grassland on which he maintains an extensive cattle herd. The feedlot, near Goodland, has a capacity of7,500 head, with an estimated break-even point of 3,500 head. From one-third to one-half of the cattle on feed are owned by Mr. Cogswell, with the remainder belonging to other persons. The Cogswell pastures annually provide some 500 tons of hay for feedlot use. Grains and other foodstuffs are purchased from neighboring farmers. The Kansas Livestock Association was permitted to intervene in the case before BOTA on behalf of the Kansas livestock industry and the cattle feedlots which are members of the association. It supported taxpayers’ applications for exemption before BOTA and joins the taxpayers in this appeal. The personal property for which exemption is claimed includes such items as grinders, loaders, tractors, dirt movers, sprayers, hay trailers, feed boxes and other equipment used in the feeding and maintenance of the cattle and the general upkeep of the feedlot facilities. Equipment and machinery used on farms and ranches are not involved in this case. The physical facilities maintained by these taxpayers are typical of the feedlots operated throughout the state. Their sole purpose is to complete the final conditioning of beef animals, at the end of which period the cattle are shipped to nearby packers for slaughter and processing. Termed “feeder cattle,” most animals are about two years old and weigh from 500 to 750 pounds when they enter the feedlots. They previously have been on grass, wheat pasture or other type of forage and usually have not been fed a substantial amount of grain. When received at the feedlot they are vaccinated, dipped, tagged for identification and subjected to other veterinary procedures. They are then confined in pens of 100 to 200 head and fed concentrated diets of grain, rpughage and supplements to produce the maximum gain in the shortest period of time. Usually, the feeding cycle is from three to six months, depending on the size and condition of the animal when it is received, the feeding formula used, weather conditions and other factors. The basic issue in the case is stated by the taxpayers in the following manner: Is the machinery and equipment actually and regularly used exclusively in the operation of cattle feedlots exempt from personal property taxation under the provisions of K.S.A. 1982 Supp. 79-20U and 79-201j, when the owners of such feedlots,' in addition to feeding their own cattle, feed cattle belonging to other persons? Following the filing of the claims for exemption, BOTA set the claims for hearing and afforded the parties a full opportunity to present their evidence and legal arguments. After hearing all the evidence and having received briefs of counsel for the taxpayers and the taxing agencies, BOTA on May 2, 1983, denied the taxpayers’ applications for exemption. In denying the claims for exemption, BOTA found that the taxpayers’ machinery and equipment used in their feedlot operations were not used exclusively in farming or ranching operations. BOTA concluded that the taxpayers used their machinery and equipment for a dual purpose: (1) In a service-oriented business in connection with cattle owned by the taxpayers; and (2) as instruments of husbandry with respect to cattle owned by the taxpayers. In arriving at its decision, BOTA noted the term “agricultural” is a much broader term than “farming or ranching.” BOTA recognized that commercial feedlots are agricultural endeavors or agri-businesses, but held they do not fall in the category of “farming or ranching operations.” The taxpayers appealed the order of BOTA to the district court of Shawnee County pursuant to K.S.A. 74-2426(d)(2) which affirmed the decision of BOTA in a short memorandum decision stating it agreed with the conclusions reached by BOTA. As we view it, the sole issue presented on appeal is whether the machinery and equipment used by the taxpayers in their commercial feedlot operations constituted “personal property actually and regularly used exclusively in farming or ranching operations,” so as to be exempt under the provisions of K.S.A. 1982 Supp. 79-20lj. Before considering this basic issue, it would be helpful to consider the scope of review of an appellate court on appeal from an administrative decision and the accepted legal principles applied in Kansas where a claim is presented for exemption from ad valorem taxation. The BOTA decision which is before us for review is an administrative decision and is subject to the same limited review as are decisions of other administrative tribunals. Northern Natural Gas Co. v. Dwyer, 208 Kan. 337, 492 P.2d 147 (1971), cert. denied 406 U.S. 967 (1972). On appeal from an administrative decision, a district court may not hear the appeal de novo, but is restricted to considering whether, as a matter of law, (a) the administrative tribunal acted fraudulently, arbitrarily, or capriciously; (b) the administrative order is substantially supported by the evidence; and (c) the tribunal’s action was within the scope of its authority. Lauber v. Firemen's Relief Association, 202 Kan. 564, 451 P. 2d 488 (1969). Whether certain property is exempt from ad valorem taxation is a question of law if the facts are agreed upon, and is a mixed question of law and fact if the facts are controverted. State, ex rel, v. Davis, 144 Kan. 708, 709, 62 P.2d 893 (1936). In the case now before us, there is no factual dispute. The issue presented to the district court and on appeal to this court is strictly a question of law: Whether the taxpayers’ farm machinery and equipment, used in the operation of their feedlots, is exempt as farm machinery and equipment under the provisions of K.S.A. 1982 Supp. 79-201j. In cases involving questions of claimed exemption from ad valorem taxation, the following rules and legal principles have been established as guidelines to be followed by the courts: (1) Taxation is the rule; exemption is the exception. All doubts are to be resolved against exemption and in favor of taxation. Manhattan Masonic Temple Ass’n v. Rhodes, 132 Kan. 646, 649, 296 Pac. 734 (1931); (2) Constitutional and statutory provisions exempting property from taxation are to be strictly construed. Lutheran Home, Inc., v. Board of County Commissioners, 211 Kan. 270, 275, 505 P.2d 1118 (1973); In re Board of Johnson County Comm’rs, 225 Kan. 517, 519, 592 P.2d 875 (1979); (3) The burden of establishing exemption from taxation is on the one claiming it. Seventh Day Adventist v. Board of County Commissioners, 211 Kan. 683, 690, 508 P.2d 911 (1973); (4) The question is not whether or not the property is used partly or even largely for the purpose stated in the exemption provisions, but whether it is used exclusively for those purposes. Clements v. Ljungdahl, 161 Kan. 274, 167 P.2d 603 (1946); In re Board of Johnson County Comm’rs, 225 Kan. at 519. (5) The phrase “used exclusively” in the constitution and statutes means that the use made of the property sought to be exempted from taxation must be only, solely, and purely for the purposes stated, and without participation in any other use. Seventh Day Adventist v. Board of County Commissioners, 211 Kan. 683. With these basic legal principles in mind, we turn now to the somewhat difficult task of determining the legislative intent in enacting K.S.A. 1982 Supp. 79-20U and 79-201j. K.S.A. 1982 Supp. 79-20U is quoted in full above, and states the purpose for the farm machinery and equipment property tax exemption. It is stated there that the purpose of K.S.A. 1982 Supp. 79-20lj is to promote, stimulate, and develop the economic development and prosperity of the State of Kansas by fostering the growth and development of agricultural endeavors within the state. The legislature recognizes that agriculture, as conducted in farming and ranching operations throughout the state, is the primary basis of the Kansas economy. The language used in the statute indicates that the term “agriculture” is a broader term than “farming and ranching operations.” The term “agricultural endeavors” is used several times in 79-20U, but the legislature in granting the statutory exemption under 79-20lj did not grant the exemption to all “agricultural endeavors.” On the contrary, it restricted and limited the exemption only to that machinery and equipment which was “actually and regularly used exclusively in “farming or ranching operations.” It has been recognized that the term “agriculture” is a term much broader in meaning than the terms “farming” or “ranching.” BOTA specifically recognized those cases which hold that commercial feedlots fall into the category of agricultural endeavors. See for example Fields v. Anderson Cattle Co., 193 Kan. 558, 396 P.2d 276 (1964), and Brookover Feed Yards, Inc. v. Carlton, Commissioner, 213 Kan. 684, 518 P.2d 470 (1974). That fact, however, does not make a commercial feedlot a “farm” or “ranch.” Various jurisdictions have recognized this distinction, holding that an exemption for “agricultural purposes” is much broader than one for farms. See the many cases cited in the annotation in 97 A.L.R.2d 702 on the subject of construction and application of the terms “agricultural,” “farm,” or “farming,” or the like, in zoning regulations. In Weed v. Monfort Feed Lots, 156 Colo. 577, 402 P.2d 177 (1965), certain corporations, which operated feedlots where cattle were finished for market and which used motor vehicles to transport livestock and feed for the cattle, claimed that they were exempt from the ton mile tax because they were “farmers or ranchers.” At the trial court level, it was determined that the feedlot operators were farmers and ranchers and, as such, were exempt from the tax. On appeal, the Supreme Court of Colorado reversed, holding that the Colorado statute granting the exemption should be strictly construed and that the feedlot operators were not farmers or ranchers within the meaning of the statutory exemption. The Kansas legislature, in several statutory enactments, has obviously recognized that a feedlot operation is an agricultural pursuit but something different from a “farm” or “ranch.” In 1963, the legislature enacted K.S.A. 47-1501 et seq., providing for the regulation of feedlots within the state. In K.S.A. 47-1501, the words “feed yard feeding” are defined as the feeding of livestock in lots or pens which are not used normally for raising crops and in which no vegetation, intended for livestock feed, is growing. The term “feedlot” is defined to mean (1) a livestock feedlot, or feed yard, having more than one thousand head of livestock at one time during the licensed year, or (2) any other livestock feedlot whose operator elects to come under the act. In K.S.A. 47-1502, it is stated that the feeding of livestock, and animal husbandry, shall be construed to be an agricultural pur suit. K.S.A. 47-1503 requires a feedlot operator to obtain a license from the livestock commissioner authorizing and permitting such operation. A feedlot operator is required to pay a license fee, the amount of which depends upon the feedlot capacity. By this act, it is clear that the legislature has recognized that there is a distinction between cattle feeding in a commercial feedlot and cattle feeding in places used normally for raising crops and where there is vegetation growing, intended for livestock feed, which could only be a farm or ranch. In another chapter of the Kansas statutes, the legislature has also recognized the distinction between a feedlot and a farming or ranching operation. At K.S.A. 17-5902 et seq., which regulates and places restrictions on agricultural corporations, such corporations are prohibited, either directly or indirectly, from owning, acquiring, or leasing any agricultural land in the state. These restrictions are subject to certain exceptions including agricultural land held or leased by a corporation for use as a feedlot. K.S.A. 17-5904(a)(8). In K.S.A. 17-5903, the terms “feedlot” and “farming” are distinguished. K.S.A. 17-5903(e) defines “feedlot” to mean “a lot, yard, corral, or other area in which livestock fed for slaughter are confined.” The term includes, within its meaning, agricultural land in such acreage as is necessary for the operation of the feedlot. “Agricultural land” is defined as land suitable for use in farming. “Farming” is defined as the cultivation of land for the production of agricultural crops, the raising of poultry, the production of eggs, the production of milk, the production of fruit or other horticultural crops, grazing or the production of livestock. It is stated specifically that farming does not include a contract to provide spraying, harvesting, or other farm services. A reading of K.S.A. 17-5902 et seq. demonstrates to us that the legislature considers a feedlot to be something different from a farm or ranch. It is a well recognized rule of statutory construction used to determine legislative intent that ordinarily identical words or terms used in different statutes on a specific subject are interpreted to have the same meaning in the absence of anything in the context to indicate that a different meaning was intended. Callaway v. City of Overland Park, 211 Kan. 646, 652, 508 P.2d 902 (1973); Banister v. Carnes, 9 Kan. App. 2d 133, 136, 675 P.2d 906 (1983); Williams v. Board of Education, 198 Kan. 115, 124, 422 P.2d 874 (1967). We have concluded that machinery and equipment used in a commercial feedlot operation are not personal property used exclusively in farming and ranching operations and are not included within the exemption from property or ad valorem taxes provided under K.S.A. 1982 Supp. 79-201j. Although, as noted above, feedlot operations are agricultural endeavors and highly specialized agri-businesses, we hold that it was not the intent of the legislature to include such operations within the category of “farming or ranching operations” under that statute. The taxpayers further contend on appeal that the action by BOTA unconstitutionally established a class of . farmers and ranchers who will enjoy the tax exemption, while others, similarly situated, will be required to pay personal property taxes on their farm machinery and equipment. In urging this point, the taxpayers have assumed that a feedlot operator who feeds only his own cattle will be exempt from the tax while a feedlot operator who feeds the cattle of other persons will not be exempt. We do not so construe the statute. The two taxpayers in this case are operators of commercial feedlots. Although they feed some of their own cattle, they also feed cattle owned by others. As noted above, we have held that a feedlot operation is not a farming or ranching operation within the tax exemption provided under K.S.A. 1982 Supp. 79-201j. This case does not involve a factual situation where a farmer or rancher has a particular area of his farm or ranch used to feed his cattle and to prepare them for slaughter. Whether or not such a place for feeding cattle would be considered an integral part of the farming and ranching operation or an entirely separate operation would, of necessity, depend upon the facts and circumstances of each particular case. Our ruling here is restricted in its application to commercial feedlots maintained separately and apart from a farm or ranch. We thus hold that, under the factual circumstances present in this case, the taxpayers were not entitled to the tax exemption provided under K.S.A. 1982 Supp. 79-20lj and that BOTA and the district court were correct in so holding. The judgment of the district court is affirmed.	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The opinion of the court was delivered by Prager, J.: This case involves a dispute between two lien claimants over the priority of their lien interests in the proceeds from the sale of 85 cattle belonging to the debtors, W.J. Ferbrache, Grace Ferbrache, and James L. Ferbrache. Northeast Kansas Production Credit Association (PCA) is the owner of a security interest in the cattle which was perfected in January of 1981. Dan V. Groth, D.V.M., claims a veterinarian lien on the 85 cattle pursuant to K.S.A. 47-836. The facts in the case are not disputed and are as follows: On or about January 30, 1981, the Ferbraches, farmers and cattlemen, executed two security agreements with Northeast Kansas Production Credit Association (PCA) pledging as collateral, among other items, all livestock now owned or hereafter acquired by way of replacement, substitution, increase, or addition. The Ferbraches also executed a financing statement covering the same property which was filed with the Brown County Register of Deeds, thereby perfecting the security interest of PCA. On or about February 5, 1981, the Ferbraches executed a promissory note to PCA in the amount'of $283,894.23 which was due on February 1,1982. The Ferbraches failed to pay the indebtedness due on the note and, in November of 1982, PCA filed an action for foreclosure of the security agreement. From January 1977 to July 1983, Dr. Groth performed veterinary services on 2,000 to 3,000 head of Ferbrache cattle. The Ferbraches failed to keep their account current, and, as a result, by August of 1983, the unpaid bill for services performed on the cattle for the six-year period totaled $21,334.15. On August 18, 1983, Dr. Groth executed and filed a lien statement for his services with the Register of Deeds. On. the same day, the Ferbraches voluntarily delivered 85 head of cattle to Groth to prepare them for sale. At the time, Groth claimed a veterinarian lien on the 85 cattle pursuant to K.S.A. 47-836. The 85 head of cattle were later sold by agreement of all parties in PCA’s foreclosure action. The proceeds from the sale of the 85 cattle, in the amount of $24,356.79, was paid into court. This dispute is over who is entitled to the proceeds of the sale. PCA claimed that it was entitled to the proceeds in order to satisfy its security agreement. Dr. Groth claimed that he had a prior veterinarian lien on the proceeds which should be applied to satisfy his total claim of $21,334.15. The parties agreed that Dr. Groth had a prior veterinarian lien on the 85 head of cattle at least for his services in preparing them for sale, since he had possession of the cattle when they were sold by agreement of the parties. They disagreed as to the amount of his lien. The case was tried by the Brown County District Court which awarded Dr. Groth $1,027.70 for presale expenses and veterinary services to the 85 head of cattle incurred during the last period he had possession of the cattle from August 18, 1983, until they were sold on September 17,1983. The remainder of the proceeds of the sale of the cattle was awarded by the trial court to PCA in partial satisfaction of its security agreement. Dr. Groth then appealed. Dr. Groth claims that he is entitled to $21,334.15 for his veterinary services rendered to the 2,000 to 3,000 head of cattle of the Ferbraches from 1977 to 1983. Dr. Groth bases his claim on K.S.A. 47-836 which provides for a lien for veterinary services in the following language: “47-836. Lien for veterinary services; preference. A veterinarian, or a veterinary partnership offering veterinary service to animals in the field or otherwise, who shall, at the request of the owner or lawful possessor of any animal, bestow any professional attention, care, vaccines, antisera, virus, antibiotics, or other medical treatment, food or service upon the same shall have a lien upon such animal for the just and reasonable charges therefor, and may hold and retain possession of such animal until such charges are paid. The lien hereby created shall have preference over any and all other liens or encumbrances upon such animal or animals, regardless of where such veterinary service has been rendered.” In this case, the court is required to interpret K.S.A. 47-836 and to apply it to the facts now before us. At the outset, it would be helpful to review some of the basic legal principles which are applicable to liens on personal property. Certain liens on personal property for services rendered in repairing or improving the same were recognized at common law. All of these liens were possessory liens which required the lien claimant to retain possession of the property and then to enforce his lien by proceeding with a civil action. If the lien claimant voluntarily delivered possession of the personal property to the owner, the lien was deemed to be extinguished. Later, various state legislatures, including the Kansas legislature, enacted statutes which provided for statutory liens on personal property. Many of these statutes expanded the scope of the common-law liens by providing for perfection of a lien by some form of statutory notice. In 1868, the Kansas legislature first enacted statutes providing for certain liens on personal property. Statutory liens on personal property may be found today at K.S.A. 58-201 et seq. That chapter provides for various liens including liens for material and services furnished (K.S.A. 58-201); liens for threshing or harvesting grain (K.S.A. 58-203); liens for feed and care of livestock (K.S.A. 58-207); liens for a forwarding merchant, warehouse keeper, carrier or other bailee (K.S.A. 58-208); liens for seeding and baling broomcorn and baling hay (K.S.A. 58-218); an agister’s lien (K.S.A. 58-220); liens for work, labor or materials supplied by cleaning establishments (K.S.A. 58-222); and liens on mobile homes (K.S.A. 58-227). Prior to the enactment of K.S.A. 47-836 in 1969, a veterinarian had no separate lien provided for by statute, and any claim of lien by a veterinarian had to be asserted under one of the statutory liens. We also should note K.S.A. 58-215, which provides as follows: “The voluntary delivery to the owner or claimant of any personal property by any person claiming a lien thereon, as provided in this act, shall be held to be an abandonment of such lien, and such lien may also be waived by special contract.” Since the beginning of statehood, the policy of the Kansas law has been opposed to secret liens on personal property. That public policy is expressed in Loader v. Bank, 113 Kan. 718, 216 Pac. 264 (1923). Loader involved an action to enforce an agister’s lien on livestock covered by a chattel mortgage. In the opinion, the court noted that the essence of the common-law lien was possession, and relinquishment of possession relinquished the lien. The court stated, “The policy of the law is against secret liens, and the court knows of no noncontract lien on personal property, good as against purchasers or mortgagees, not dependent either on possession or on some form of statutory notice.” p. 720. Later, in Hoy v. Griffin, 137 Kan. 872, 875, 22 P.2d 449 (1933), the court held that an agister’s lien is waived ifthe owner assumed possession or control of the animals. In a more recent case, Chasteen v. Childers, 218 Kan. 519, 546 P.2d 935 (1976), it was held that any lien claimed for the feed and care of horses was abandoned by the lien claimant’s voluntary surrender of the horses to the owner. The court applied K.S.A. 58-215. We also note the provisions of the Uniform Commercial Code in regard to the priority of liens claimed on personal property. K.S.A. 84-9-310 provides as follows: “84-9-310. Priority of certain liens arising by operation of law. When a person in the ordinary course of his business furnishes services or materials with respect to goods subject to a security interest, a lien upon goods in the possession of such person given by statute or rule of law for such materials or services takes priority over a perfected security interest unless the lien is statutory and the statute expressly provides otherwise.” In both the Official UCC Comment and the Kansas Comment to that section, it is stated that the primary requirement is that the statutory lienor be in possession of the goods. With these legal principles in mind, we turn to a consideration of K.S.A. 47-836 which provides for a lien for veterinary services. It is important to note that that statute, which is quoted in full above, makes no provision whatsoever for the filing of a statutory notice. In view of the public policy of the Kansas law against secret liens, we have no hesitancy in holding that the lien provided for by K.S.A. 47-836 is a possessory lien and, in order to enforce the lien, a veterinarian must retain possession of the animal until the charges are paid. If the legislature had desired to provide for a statutory notice of lien following delivery of possession to the owner, it could have done so, but it did not. We are obligated to enforce K.S.A. 47-836 as written. We hold that delivery of possession to the owner of an animal serviced by a veterinarian results in a loss of the lien. The district court, in entering judgment awarding Dr. Groth $1,027.07 for services rendered during the last period of possession from August 18, 1983, to September 17, 1983, and the remainder of the proceeds of the sale to PCA, reasoned as follows: “The Court is of the opinion that regardless of how a veterinary lien is to be perfected a veterinary performing services upon a certain head of livestock has a lien only upon that particular animal for the just and reasonable charges therefor, and that such veterinary does not have a statutory lien upon certain livestock for services to other livestock which have been disposed of. The Court is of the opinion that the legislature intended that a veterinary is entitled to a lien upon an identifiable animal upon which he rendered services to the extent of the reasonable charge for the services rendered to that specific animal and none others.” In our judgment, that issue was correctly decided by the trial court. K.S.A. 47-836 provides, in substance, that a veterinarian who shall at the request of the owner of any' animal bestow any professional service upon the same shall have a lien upon such animal for the just and reasonable charges therefor, and may hold and retain possession of such animal until such charges are paid. In view of this language, it is clear to us that Dr'. Grotlvs veterinarian lien covered only his services provided the 85 head of cattle actually in the possession of Dr. Groth as lien claimant. The statutory language precludes any claim of a veterinarian lien for services provided to the other 2,000 to 3,000 head of cattle which have been disposed of by the Ferbraches. Dr. Groth was entitled to a possessory veterinarian lien only on the 85 head of cattle in the amount of $1,027.07 for the veterinary services performed by him on those particular' cattle during the period from August 18, 1983, until they were sold on September 17, 1983. 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The opinion of the court was delivered by Lockett, J.: This is a consolidated appeal involving a bifurcated trial. The first action, for breach of contract to collect insurance benefits pursuant to a proof of loss claim filed with the appellee insurance company for a fire loss to the appellants’ residence, was tried to a jury. The second part of the bifurcated action, concerning the failure of the insurer to reserve its rights before making an election for partial payment of insurance proceeds and for determination of whether the insurer’s contract was void as against public policy, was tried before a second judge. In 1978, the appellants, David and Marlene Neises, who were engaged in the construction/remodeling business at Solomon, Kansas, began building a Shane Modular Home to qualify as representatives for that company. To cover the costs as the work progressed, the Neises obtained construction loans from the Solomon State Bank (Bank). The Neises occupied the house as their family residence while constructing the home. In late 1979, the construction/remodeling work in the Solomon area slowed considerably, and David Neises decided to relocate the family business in Wichita. The Neises purchased a residence there in the fall of 1980. The value of the Solomon house was appraised at $104,640.00. From the end of 1979 through the spring of 1981, though listed with various realtors at various prices, the Neises were unable to find a buyer for the house. When the Neises were unable to pay their mortgage payments for the Solomon house, in March of 1981 the Bank requested that the property be listed for sale at $47,500.00. On May 18, 1981, the Bank instructed its attorney to foreclose on the real estate. On June 24, 1981, the Neises conducted an auction of the residence. The mortgage holder, the Bank, was the highest bidder at the auction, bidding the amount due on their mortgage. Owing money on two mortgages, the Neises declined to sell to the Bank. Following the unsuccessful auction, David Neises approached a friend, Charles Halton of Wichita, and persuaded Halton to enter into a sham sales contract for the purchase of the residence in Solomon. On June 29, 1981, a sham contract was signed, and David Neises notified the Bank that a purchaser for the residence was willing to pay $58,500.00, and he had received a check for $5,000.00 as earnest money. From the time construction of the home was commenced, the Neises had homeowners insurance coverage on their Solomon house in the amount of $80,000.00 with Kansas Fire and Casualty Insurance Company. When the house became vacant, it no longer qualified for coverage under a homeowner’s policy. An independent agent, at the request of Kansas Fire and Casualty, contacted Marlene Neises and advised her of the need to rewrite coverage. The Neises decided to cancel coverage with Kansas Fire and Casualty Insurance Company and obtain fire and extended coverage with the appellee, Trinity Universal Insurance Company óf Kansas, Inc. (Trinity) for $80,000.00. The premium was paid by the Neises and accepted by Trinity and the policy issued. By July 31, there had been no indication Mr. Halton was a qualified buyer, so on August 4, 1981, a foreclosure action was filed by the Bank. After meeting with their attorneys in late October, 1981, the Neises filed their answer out of time. On August 9, 1981, between 3:00 and 4:00 a.m., the home in Solomon was wholly destroyed by fire. The fire had been deliberately set by placing tires in the structure at different locations on the lower and upper levels and pouring a flammable liquid over them. On September 25, 1981, David Neises filed a proof of loss. Trinity denied payment claiming the insured had burned the home. Trinity did pay the Bank, under the binder issued, the amount of the outstanding mortgage. Legal actions were commenced by the Neises to collect the insurance proceeds. During the jury trial, the judge admitted as evidence some, but not all, of the results of a psychological stress evaluation (PSE) prepared from an interview with David Neises. The interview was conducted by Ivan Saunders, an independent fire investigator employed by Trinity to investigate the fire. The court found that certain PSE evidence was probative and material. In those instances where Trinity’s counsel could corroborate by substantial evidence the results of the test, independent of the PSE test, the court allowed the PSE testimony to be presented to the jury as evidence based upon a scientific technique. The .Neises argue that the admission of the results of the PSE evaluation were prejudicial and reversible error. Trinity disagrees. Saunders testified at trial as to his experience as an examiner and his use of the PSE equipment. He had based his evaluation of David Neises on a taped interview. Neises-was unaware that the interview was being tape recorded and would be evaluated. Trinity proffered the evaluation of the responses to 22 questions, but the court allowed only 11 responses for which there existed substantial independent evidence to be presented to the jury. The PSE is basically a voice lie-detector test. The principle underlying the test is that the human voice has many frequencies or a number of sound waves. In áddition to the voice that can be heard, there are a series of low frequency sound waves which are inaudible to the human ear. When a person is under stress or lying, these sound waves tend to disappear, due to physiological changes in the body. In order to conduct the test, the subject is asked certain questions and the answers are recorded on a tape recorder. This tape is reduced in speed and is fed into a psychological stress evaluator, which is similar to an electrocardiogram machine. Based on the reading of the chart from this machine, the examiner determines whether the subject is lying or telling the truth. The PSE does not detect deception per se. It records reactions to a given situation, most commonly a question and answer session. Those reactions may be charted, and the interpretation of those reactions may lead the examiner to conclude that an individual is lying. Lie detection relies on one basic principle: an individual undergoing stress will exhibit certain involuntary reactions caused by that stress. See Kenety, The Psychological Stress Evaluator: The Theory, Validity and Legal Status of an Innovative “Lie Detector,” 55 Ind. L. J. 349 (1980). In Kenety’s article, he noted that the PSE and the polygraph operate similarly. Both rely on the fact that deception causes stress and that stress causes psycho-physiological changes. While the polygraph measures changes in the subject’s heartbeat, respiration and perspiration, the PSE measures changes in ihe subject’s voice. While Kenety stated that the PSE has many advantages over the polygraph, he said that the PSE has had far less scientific substantiation than the polygraph: “There have been no controlled scientific field studies of the PSE conducted by a disinterested party. The results of laboratory simulations have been inconclusive and conflicting, and although field results and manufacturers’ studies have indicated that the PSE may have considerable utility, as yet they have not been validated by independent research. These field tests hold out the hope that the PSE could be a valuable tool in the detection of deception and indicate that further study is warranted. As yet, however, the extent of its validity remains undetermined.” 55 Ind. L. J. at 357. This court considered the admissibility of new scientific evidence in State v. Washington, 229 Kan. 47, 622 P.2d 986 (1981). In that case, we followed the test enunciated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), stating: “[BJefore a scientific opinion may be received as evidence at trial, the basis of that opinion must be shown to be generally accepted as reliable within the expert’s particular scientific field. . . . [I]f a new scientific technique’s validity has not been generally accepted or is only regarded as an experimental technique, then expert testimony based upon its results should not be admitted into evidence.” 229 Kan. 53. In Washington, this court refused to abolish the Frye test, stating that to do so would produce utter chaos and resulting injustice in criminal cases. The court in Washington ruled that the multi-system method of blood analysis of polymorphic enzymes was generally accepted as reliable in the scientific community and that expert testimony on that subject was admissible. In Tice v. Richardson, 7 Kan. App. 2d 509, 644 P.2d 490 (1982), the Court of Appeals, using the Frye test, held that the human leucocyte antigen test is sufficiently established to have gained general acceptance in the particular scientific field to which it belongs as a reliable test to prove paternity. Only one state has allowed admission of PSE results in court, while two states have refused to allow such evaluations. In Simon Neustadt Fam. Ctr. v. Bludworth, 97 N.M. 500, 641 P.2d 531 (Ct. App. 1982), the New Mexico court found that PSE evaluations did not substantially differ from polygraph tests, that polygraph tests were admissible in New Mexico, and that PSE evaluations should be admissible at the discretion of the trial court. Two states have rejected the use of PSE evidence. In Smith v. State, 31 Md. App. 106, 355 A.2d 527 (1976), the Maryland court said: “The difference, if any, between the psychological stress evaluation test and a lie detector test is too minor and shadowy to justify a departure from our prior decision. A lie detector test by any other name is still a lie detector test.” 31 Md. App. at 120. Louisiana has also rejected use of PSE evidence in State v. Schouest, 351 So.2d 462 (La. 1977). Kansas first considered whether to allow the admission of polygraph test results into evidence in State v. Lowry, 163 Kan. 622, 185 P.2d 147 (1947). The court, in finding such evidence inadmissible, said that to allow such evidence would impair the vital function of cross-examination. While the operator, appearing as a witness, might be questioned as to his qualifications, experience, his methods, and on similar matters, the machine itself could not be subjected to any type of examination. While some studies have shown that polygraph tests have an 85 to 90 percent accuracy rate, there have been no such independent studies done to verify the results of PSE tests. The Frye test requires that a new scientific technique gain such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting such expert testimony. Mr. Saunders, owner of Associate Research Consultants, testified not only as to the results of his investigation, but also attempted to lay the foundation for the admission into evidence of the results obtained by use of a new scientific technique, the PSE equipment. Mr. Saunders advised the court and jury that he was a member of Kansas Association of Psychological Stress Evaluators and that such association consists of approximately fifty-eight (58) members who are trained in the use of psychological stress evaluators and furthermore, that a psychological stress evaluator is an instrument which is used to detect deception in statements and that its use is primarily investigative. When asked to explain how an investigation utilizes the psychological stress evaluator, Mr. Saunders advised the jury: “All investigator will use a psychological stress evaluator to verify statements matte by victims and/or suspects in a crime. “The way the psychological stress evaluator woiks, all human beings have a conscience and everything that you do, see or hear is stored in your subconscious mind. When a person tells a deceitful answer to a question, there’s a phenomena which occurs.” Mr. Saunders advised the court pursuant to appellee’s proffer that the psychological stress evaluator was invented by two former Army officers, Col. McClouston and Col. Bell, and used by Army Intelligence in 1960 through 1965. Furthermore, that Col. McClouston and Col. Bell retired from military service and started the company of Dektor, which marketed and sold the machine to the public. Upon voir dire by appellants’ counsel, Mr. Saunders answered the following questions: “MR. WATERS: . . . [T]his testimony — the Army — you say that the Army — the court of military justice has accepted this as evidence in court martials? “A. No.” And again when questioned by appellants’ counsel, Mr. Saunders stated: “Q. (By Mr. Waters:) Well, I simply asked if you know whether or not it’s been accepted by the court martials — by the court of military justice. “A. I do not know if it’s been used in court martials, no. “Q. Can you give us the citation of the court of last resort of any case of any state where this machine has been accepted as being evidence of— of deception from a witness? “A. Sir, I cannot do that without checking books. There has been some cases but I do not have ’em available for me to ... . “Q. You can say with certainty it has not been accepted by the Kansas Supreme Court? “A. Not to my knowledge.” And later concerning the same line of questioning, Mr. Saunders stated in answer to the following questions: “Q. ... I asked you if there was not a physiological function involved. “A. There’s a phenomenon involved. I know — I am not — unsure if it’s physiological — “Q. Please define a phenomena. “A. That’s a — in my interpretation, not quoting from Webster or anything like that, but a phenomena is a thing that takes place which is unexplainable at that time — its an unknown happening. “Q. Alright, so we have — we know we have a physiological function and psychological functions and you’re adding one or you have one called a ‘phenomenal function.’ You’re saying it — it’s unknown. “A. Right. “Q. And who knows about it. “A. I do not know. “Q. Nobody knows about it. “A. Its still a phenomena.” Mr. Saunders continued to answer questions from appellants’ counsel as follows: ■ “Q. Have you heard an expert testify in court concerning the reliability of this instrument? “A. No. “Q. Most important, do you know if in that case some expert was able to tell the Court how the machine worked — how it worked physiologically or psychologicall — physiologically or functionally — how it worked? “A. To my knowledge, it was about in the same line that I explained the phenomena which occurred that causes the reaction that we read on the chart. “Q. In other words as far as you know the only explanation that’s ever been given to any court as to how this machine works is the explanation you’ve given' today. “A. To my knowledge. “Q. And that is an ‘unknown phenomena.’ “A. Right. I have not witnessed any actual testimony in any court other than myself. “Q. An unknown — an unknown phenomena. “A. Right. “Q. And you believe the Court accepted that as evidence of reliability — “A. Yes. “Q. — that there’s an unknown phenomena that causes it to be reliable. “A. Yes sir.” There has been no evidence presented in this case to show that PSE tests have any standing in the scientific community. The court erred in allowing admission of the PSE results. The admission of the evidence of the PSE results did prejudice the substantial rights of the Neises and affords basis for reversal and a new trial. The Neises also allege that Trinity’s counsel violated the court’s order in limine as to the questioning of Ivan Saunders concerning the results of the PSE. Upon a request for clarification by appellee’s counsel as to whether the order excluded all further testimony by the witness regarding any other PSE responses, the court stated that he would rule on it on a question-by-question basis; i.e., “that the court will rule on objections and the evidence as it comes to the jury at this point.” Having determined that the admission of the PSE results was improper, any questions concerning the order in limine allowing testimony as to the PSE become moot. The Neises contend that the court incorrectly instructed the jury that Trinity’s burden of proof in a fraud case involving an insurance contract was “more probably true than not.” They argue that the jury should have been instructed that while the burden was a preponderance, the evidence must be “clear and convincing.” Trinity argues that the court presented the correct instruction to the jury since this is an action based upon a breach of the insurance contract, not fraud. Kansas has not directly considered this issue. The Tenth Circuit held in a Kansas case, Jamaica Time Petroleum, Inc. v. Federal Insurance Company, 366 F.2d 156 (10th Cir. 1966), that the insurer must establish by a fair preponderance of the evidence the incendiary origin and responsibility of the insured therefor to sustain the defense of arson in an insured’s action to recover under a fire policy. This is the rule followed in most jurisdictions. See Mele v. All-Star Ins. Corp., 453 F. Supp. 1338 (E.D. Pa. 1978); Ferguson v. Am. Family Mut. Ins. Co., 566 F. Supp. 1090 (E.D. Mo. 1983); Joubert v. Travelers Indem. Co., 736 F.2d 191 (5th Cir. 1984); George v. Travelers Indemnity Co., 81 Mich. App. 106, 265 N.W.2d 59 (1978); Dean v. Insurance Co. of North America,_Ind. App. __, 453 N.E.2d 1187 (1983); Schultz v. Republic Ins. Co., 124 Ill. App. 3d 342, 464 N.E.2d 767 (1984); Quast v. Prudential Property and Cas. Co., 267 N.W.2d 493 (Minn. 1978); Bufkin v. Texas Farm Bureau Mut. Ins. Co., 658 S.W.2d 317 (Tex. Civ. App. 1983); Godwin v. Farmers Ins. Co. of America, 129 Ariz. 416, 631 P.2d 571 (Ct. App. 1981). At least three jurisdictions, however, take a different view of the burden of proof. In Carpenter v. Union Insurance Society of Canton, Ltd, 284 F.2d 155 (4th Cir. 1960), the court said that if the fire was an incendiary fire for the purpose of collecting insurance, it was a fraudulent fire, and fraud must be proven by clear and convincing evidence. This is similar to the reasoning of the Virginia courts. See Mize v. Harford Ins. Co., 567 F. Supp. 550 (W.D. Va. 1982). The New York courts also require clear and convincing evidence. Hutt v. Lumbermens Mut. Cas. Co., 95 App. Div.2d 255, 466 N.Y.S.2d 28 (1983). This is not a case of fraud on the insurance company by misrepresentation on the proof of loss claim form. .The insurance company’s defense was one of arson, an entirely different type of defense. The company is not claiming that the insurance contract is void because, at the time it was obtained, the insureds had the intent to commit arson and collect under the policy. Rather it claims that the Neises committed an unlawful act, arson, or procured its commission, which is a simple breach of contract. Strong principles of public policy deny the insured the right to recover when he intentionally sets on fire property covered by the insurance contract. The insurer’s evidence that the insured set or otherwise caused the fire need not be clear and convincing, exclude any reasonable doubt, preclude any other possibility, or be the only reasonable explanation for what occurred. Rather, the insurer’s evidence need only be by a preponderance of the evidence or more probably true than not. In the present case, there was no error in the trial court’s application of the preponderance of the evidence standard. When an insured brings an action based upon insurance for losses suffered, and an insurer raises an affirmative defense such as arson to deny payment for the insurer’s losses, the insurer must show by a preponderance of the evidence that the fire was of an incendiary origin and that the insured caused the fire. The Neises’ property suffered fire loss on August 9, 1981. The Neises’ insurance policy with Trinity contained a standard mortgage clause which provided that any loss payable under the' policy shall be payable to the mortgagee as his interest appears, even though the claim by the insured may be denied. On September 28, 1981, Trinity paid the Bank $39,565.61, which fully satisfied the outstanding mortgage obligation of the Neises to the Bank on the Neises’ property in Solomon. On December 28, 1981, Trinity informed the appellants’ counsel that it refused to pay on the appellants’ claim. The Neises filed suit claiming Trinity had failed to reserve its rights before electing to pay the Bank and to determine whether the insurer’s contract was void as against public policy. This portion of the bifurcated action was tried before a different judge than the one who presided at the jury trial. The trial judge denied the Neises’ claims. The Neises appealed. The Neises argue that by paying the mortgagee, the insurer treats the policy as a valid policy, and, therefore, cannot deny payment to appellants. They claim that the insurer has made an election by making partial payment to the mortgagee, and, therefore, should be estopped from acting inconsistently with that election. Trinity argues that under the standard mortgage clause, Trinity was required by law to pay to the Bank the amount of the Bank’s interest, but this in no way determined whether Trinity had to pay the appellants/insureds. The Neises mistakenly base their argument on Insurance Co. v. Marshall, 48 Kan. 235, 29 Pac. 161 (1892). The facts in that case differ significantly from the present case. In that case, the plaintiff issued an insurance policy to one of the defendants upon a house and made the loss payable to the mortgagee. The mortgagee assigned the notes, mortgage and insurance policy to another, with the knowledge of the insurer. When the property was totally destroyed by fire, the insurer paid the assignee, and took an assignment of the notes, mortgage and policy to itself, and then denied there was a valid policy. The issue in that case was whether there was a valid insurance policy. In Insurance Co., this court agreed with the finding of the lower court “that the [fact that the] insurance company paid to the holder of its policy the amount named therein clearly established the fact that it recognized the policy as a valid and subsisting obligation.” 48 Kan. at 237-38. In the present case, there was no question as to whether the insurance policy owned by the Neises was valid or in force. Trinity recognized the validity of the policy and, because there was a valid policy in force, paid the Bank under the standard mortgage clause. Insurance Company does not in any way stand for the principle that bécause the insurance company paid the mortgagee, it must also pay the insured under the policy. The standard or union mortgage clause of an insurance contract has been analyzed by this court on several occasions. We have been consistent in holding that such a clause creates a new and independent contract which entitles the mortgagee to recover under the policy of insurance, notwithstanding the effect of any act or neglect on the part of the owner or mortgagor of the property. Fancher v. Carson-Campbell, Inc., 216 Kan. 141, 144, 530 P.2d 1225 (1975). The facts of Prather v. National Fire Ins. Co., 153 Kan. 477, 112 P.2d 99 (1941), are similar to those of the present case. In Prather, the defendant insurer had issued a fire insurance policy to plaintiffs. The house burned and the plaintiffs notified their insurance agent of the loss. The insurance company refused to pay the loss under the policy, but later settled with the heirs to the property who claimed to have legal title. The plaintiffs claimed the right to the insurance proceeds, since they were buying the property on a contract basis from the heirs. The plaintiffs made the same argument in the trial court as the appellants are making here, that since the defendant recognized the policy was valid by making the payment to the heirs, it could not claim it was void as to the plaintiff. They contended that the insurer waived the defense of fraud by the plaintiff when it made payment to the heirs. The court said: “[T]hat the policy in this case provided that loss under the policy should be payable to the Beaver estate, mortgagee, as its interest might appear, and that the insurance as to the interest of the mortgagee should not be invalidated by any act of the mortgagor. “This court has held that such a provision constituted a separate contract between insurer and the mortgagee and that the insurer was liable to the mortgagee as to its interest even though it might have a defense against liability on the policy as to the mortgagor. (See Fuller v. Fire Insurance Co., 117 Kan. 282, 231 Pac. 53, also Metropolitan Life Ins. Co. v. Mennonite Mutual Fire Ins. Co., 131 Kan. 628, 293 Pac. 402.) Since that is the rule, the insurer in this case did not waive any defenses it might have had as to its liability to the party who appeared as the mortgagor in the policy. (See 7 Couch on Insurance, 5577, also Clark v. Casselman, 177 Cal. 82, 169 Pac. 1005, also Glaser v. Williamsburg, Etc., Ins. Co., 72 Ind. App. 319, 125 N.E. 787.)” 153 Kan. at 481. Kansas follows the majority rule, i.e., that a standard mortgage clause operates as a distinct and separate contract between the insurer and the mortgagee. Based on this contract, the insurer, Trinity, was required to pay the mortgagee, Solomon State Bank, despite any acts of the insured which may have affected the rights between the mortgagor and the insurance company. There was no clause in the insurance contract which required the insurer to reserve its rights before paying the mortgagee. The decision of the trial court in favor of the insurer is affirmed. The Neises argue that the part of the standard mortgage clause which allows an insurer to pay a mortgagee pursuant to an insurance policy, while denying payment to its own insured, to receive an assignment and transfer of the mortgage and all securities held as collateral to the mortgage debt, and then to proceed against its own insured to foreclose such mortgage is a violation of public policy. Trinity argues that subrogation and assignment are specifically authorized by Kansas cases and are supported by public policy in that it helps keep insurance companies’ costs down. In Bank v. Insurance Co., 104 Kan. 278, 178 Pac. 413 (1919), this court considered whether in an action on a fire insurance policy, the insurance company, upon satisfaction of a judgment against it in favor of a mortgagee under a mortgage clause of the policy, is entitled to subrogation to the claims of the mortgagee, where it has a valid defense as against the assured. There the insurer was under no obligation to the insureds by virtue of the policy, but it had been compelled to pay their debt by virtue of the judgment in the bank’s favor. Since neither of the insureds could acquire any right to the insurance because the policy was void as to them, the company, having paid their debt, was entitled to the rights the bank acquired under the mortgage. 104 Kan. at 281. In Metropolitan Life Ins. Co. v. Mennonite Mutual Fire Ins. Co., 131 Kan. 628, 293 Pac. 402 (1930), the court held that under the “union mortgage clause,” where it appears that the insurance company is not liable to the mortgagor and owner to whom the policy was issued, but is liable to the mortgagee, the insurance company upon payment of the amount of its policy is entitled to be fully subrogated to the security held by the mortgagee to the extent of the amount paid by it in accordance with the subrogation clause set forth in the mortgage clause attached to its policy. The issue was also discussed in Dervold v. Republic Mutual Fire Ins. Co., 142 Kan. 43, 45 P.2d 839, (1935), and in Drewicki v. Fidelity & Guaranty Fire Corp., 162 Kan. 10, 174 P.2d 75 (1946). Cases where subrogation and assignment have been allowed include: Lovell v. Insurance Co., 302 N.C. 150, 274 S.E.2d 170 (1981); Hawkeye-Security Insurance Co. v. Apodaca, 524 P.2d 874 (Wyo. 1974); Phalen Park State Bank v. Reeves, 312 Minn. 194, 251 N.W.2d 135 (1977); and State Farm F. & Cas. v. Brethren Mut., 39 Md. App. 570, 386 A.2d 1249 (1978). Subrogation is the right of one who has paid an obligation which another should have paid to be indemnified by the other. Black’s Law Dictionary 1279 (5th ed. 1979). In the present situation, the insurer has paid the mortgagors’ debt. The bank has received full payment and to allow it to keep the property and collect on it again would allow the Bank to be unjustly enriched. To allow the property to return to the insureds debt-free would unjustly enrich them. It is against public policy for an insured who burns his property to collect insurance on the property. By having the property returned to him after the insurer has discharged the debt for which the insured was personally liable would certainly unjustly benefit the insured. The only choice then is to assign the property to the insurer so that it may be indemnified, at least to some extent, for its loss due to the acts of the insured. Case No. 56,441 is reversed and remanded for a new trial. Case No. 56,970 is affirmed.	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The opinion of the court was delivered by Holmes, J.: This is an appeal by plaintiffs, in two comparative negligence actions, from orders of the trial court granting directed verdicts in favor of the defendant, Board of County Commissioners of Franklin County, Kansas (Franklin County), and that portion of the jury’s verdict which contributed 10% of the fault for the vehicle collision to the plaintiff, Corrinne M. Toumberlin. Separate cases were filed on behalf of the plaintiffs, Kenneth L. Toumberlin, and his wife, Corrinne M. Toumberlin. The cases were consolidated for trial, remain consolidated on appeal, and were transferred from the Court of Appeals pursuant to K.S.A. 20-3018(c). The facts will be set forth in some detail. The cases arose out of the collision of two pickup trucks, which occurred on September 10, 1982, at the intersection of two county roads northwest of Ottawa in Franklin County. Plaintiff Kenneth L. Toumberlin, accompanied by his wife, plaintiff Corrinne M. Toumberlin, was driving north in his pickup truck. Defendant George P. Haas was westbound in his pickup truck. The two trucks collided in the intersection, both plaintiffs sustained physical injuries, and both vehicles suffered major damage. The intersection was not controlled by any type of traffic sign on either road. Plaintiffs sued Haas and Franklin County, alleging negligence by Haas in the operation of his vehicle, and by Franklin County for failing to place proper warning signs at the intersection and for failing to clear away brush growing along the southeast corner of the intersection, which plaintiffs claimed obstructed their vision to the east. At trial plaintiffs testified they had lived near the intersection for approximately four years before the accident, and prior to the collision they were thoroughly familiar with the conditions at the intersection. There was conflicting testimony regarding whether Kenneth L. Toumberlin brought his vehicle to a stop upon approaching the intersection. Both' plaintiffs testified that he did stop. However, an accident reconstruction expert called as a defense witness testified plaintiff s vehicle was traveling at a speed of approximately thirty-one miles per hour when the collision occurred. The sheriff s deputy who investigated the accident testified that when he positioned his patrol vehicle at the location where plaintiffs claimed they stopped, he had unobstructed vision for over a quarter of a mile to the east in the direction from which Haas had approached the intersection. Plaintiffs produced testimony from neighbors that the view was totally obstructed by weeds, trees and brush growing along the south side of the east-west road. Plaintiffs presented no evidence that signs of any type were legally required under the Manual on Uniform Traffic Control Devices adopted pursuant to K.S.A. 8-2003. The Franklin County engineer testified, on behalf of the county, that both of the roads in question were low-volume roads which, in his professional judgment, did not justify or require any type of traffic control sign. He also testified that if he were to install signs at the intersection, he would place stop signs on the north-south road, the road on which plaintiffs testified they actually stopped their vehicle prior to entering the intersection. Plaintiffs also testified that neither of them saw the Haas vehicle until they were in the intersection and the defendant’s truck hit them. Although defendant Haas testified he tried to stop, the front of his vehicle collided with the right front side of the plaintiffs’ truck. At the close of all the evidence the trial court ruled that the County’s duty to place warning signs at the intersection and clear away the brush was discretionary under the Kansas Tort Claims Act (KTCA), K.S.A. 1983 Supp. 75-6101 et seq., and therefore the County was not liable to plaintiffs in damages. The court also noted that as plaintiffs testified they actually stopped at the intersection and looked both ways, the absence of a sign which would have required the same thing was “immaterial.” Although Franklin County was held immune from liability, its fault was nevertheless submitted to the jury for comparison with that of the other parties. The jury assessed fault for the collision 50% to Kenneth Toumberlin, 10% to Corrinne Toumberlin, 20% to George Haas, and 20% to Franklin County. Both plaintiffs were awarded damages. Plaintiffs have not appealed the jury’s findings with respect to damages or its assessment of 50% fault to'Kenneth Toumberlin. The appeal questions the directed verdict in favor of Franklin County on grounds of governmental immunity under the discretionary act exception to the KTCA, and the jury’s assessment of 10% fault to Corrinne Toumberlin. Plaintiffs’ first claim that notwithstanding the provisions of the Kansas Tort Claims Act, this court should declare that the state, counties and townships labor under a common-law duty to maintain roadways under their control in a safe, reasonable manner. In Carpenter v. Johnson, 231 Kan. 783, 649 P.2d 400 (1982), Chief Justice Schroeder discussed at length the nature of the duty and obligation owed by the state, counties and townships to maintain public roadways under the KTCA. In Carpenter it was asserted that the failure to erect a curve warning sign constituted negligence subjecting the state and county to liability under the KTCA. The defendants, on the other hand, contended that the determination of whether to erect a traffic control sign is strictly discretionary and an exception to the KTCA general rule of liability for negligence. The court stated: “The Kansas Tort Claims Act, K.S.A. 1981 Supp. 75-6101 et seq., a so-called ‘open ended’ tort claims act, makes liability the rule and immunity the exception. K.S.A. 1981 Supp. 75-6103(a) states the general rule: ‘Subject to the limitations of this act, each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state.’ (Emphasis added.) See generally Note, Governmental Liability: The Kansas Tort Claims Act [or The King Can Do Wrong], 19 Washburn L.J. 260 (1980). “Although liability is the rule, as emphasized above, it is not a rule without limitations. Exceptions from liability enumerated in K.S.A. 1981 Supp. 75-6104 indicate the legislature has not rejected the concept of immunity. Robertson v. City of Topeka, 231 Kan. 358, 360, 644 P.2d 458 (1982). The manner in which the Kansas Tort Claims Act changed prior law remains to be analyzed as specific factual situations come before this court. “Carpenter, the plaintiff-appellant in this action, argues the general law in Kansas before the Tort Claims Act recognized the right of a person to sue the government for damages sustained resulting from the negligent failure to post warning of a curve or turn. K.S.A. 1978 Supp. 68-419 (repealed L. 1979, ch. 186, § 33) imposed liability for defects on county and township roads. See e.g., Hampton v. State Highway Commission, 209 Kan. 565, 498 P.2d 236 (1972); Carder v. Grandview Township, 2 Kan. App. 2d 7, 573 P.2d 1121, rev. denied 225 Kan. 843 (1978); Annot., 55 A.L.R.2d 1000. Municipalities had a common law liability for street defects. Grantham v. City of Topeka, 196 Kan. 393, 411 P.2d 634 (1966). Three specific circumstances convince us this prior law concerning highway defects should not be engrafted onto the Tort Claims Act. First, the legislature specifically repealed the highway defect statutes. Second, under the prior law, the alleged defect was the sole focus of the inquiry regardless of any discretion which might have been exercised. Hampton v. State Highway Commission, 209 Kan. at 577-78. Third, under the prior law, no essential distinction existed between defects resulting from maintenance or failure to place signs. Compare Grantham v. City of Topeka, 196 Kan. 393, with Carder v. Grandview Township, 2 Kan. App. 2d 7. As discussed more fully herein, the Tort Claims Act distinguishes between sign maintenance and sign placement, with the exercise of discretion a significant inquiry with regard to liability for sign placement.” Carpenter v. Johnson, 231 Kan. at 784-85. The defendants in Carpenter relied upon K.S.A. 1983 Supp. 75-6104(g) for their contention that the determination of whether to erect a traffic sign was an exception in the act which relieved the governmental entity of any liability. This court refused to adopt such a broad interpretation of the act and instead found that “the totality of the circumstances” controlled in determining whether the decision with respect to any particular sign was discretionary in nature and exempt from liability. This court stated: “In conclusion, the trial court held that K.S.A. 1981 Supp. 75-6104(g), the signing exception of the Kansas Tort Claims Act, constituted an absolute bar, as a matter of law, to any action against a governmental entity for failure to cause the initial placement of any traffic signal, road sign or warning device. In so doing, the trial court reasoned that such determination was a wholly discretionary function expressly excepted from the Kansas Tort Claims Act. We do not agree. “Whether or not the placement of a warning sign on the particular curve in controversy herein was discretionary or mandatory depends upon the totality of the circumstances involved and may not be determined as a matter of law without regard thereto. We therefore conclude the trial court erred in sustaining the motion for summary judgment in favor of the governmental entities.” 231 Kan. at 790. The trial court decision in Carpenter was reached as a matter of law on a motion for summary judgment and not on the totality of the circumstances involved. In the present case, the trial court’s ruling against the plaintiffs on the discretionary nature of the duty of Franklin County came after the conclusion of all the evidence. Plaintiffs had presented absolutely no engineering testimony that the placement of any type of sign at the intersection was warranted or required under the terms of the Manual on Uniform Traffic Control Devices. Plaintiffs presented no engineering studies or accident history regarding the intersection which would have justified any type of sign. The only engineer who did testify stated that no sign was required or justified at the intersection due to the low volume of traffic. Based on the total lack of evidence presented by the plaintiffs to support the proposition that some type of sign was mandated at this intersection, the trial court was clearly correct in ruling that there was insufficient evidence for the case to go to the jury on the issue of whether the placement of a sign was mandatory or discretionary. The only testimony heard by the court supported the proposition that signing at this particular intersection was discretionary. The trial court also commented that the absence of any traffic control sign had no bearing on the cause of the accident. When entering his order for a directed verdict, the trial judge commented that the plaintiffs had testified that they stopped at the intersection even though there was no sign present. The county engineer had testified that if traffic volume and the lack of any justification for traffic control were to be ignored, he would post stop signs controlling the traffic on the north-south road on which plaintiffs were traveling. Although plaintiffs did not suggest the possibility of some other sort of warning sign, it is clear from the evidence that such a sign would not have prevented the accident since both plaintiffs were admittedly quite familiar with the intersection and traveled through it almost every day. It is obvious that the failure to post a warning or stop sign at this particular intersection could not, under plaintiffs’ own evidence, constitute the proximate cause of the collision in this case. Turning to plaintiffs’ contention that Franklin County was negligent in not removing the weeds, brush and other growth along the right-of-way, we are of the opinion that the trial court was also correct in determining no such mandatory duty existed in this case. The evidence is clear that whatever obstruction existed it was not upon the traveled portion of the highway but was alongside it on the remaining right-of-way. The county engineer testified there are over one thousand, seven hundred intersections in Franklin County. Many of them have the view obstructed in various ways by brush, undergrowth, weeds, signs, buildings, structures, etc. While our earlier cases involving obstructions to the view at an intersection were based upon the statutory duty to maintain the highways free from defects, they are still persuasive in considering liability under the KTCA. In Lyke v. State Highway Comm., 160 Kan. 709, 165 P.2d 228 (1946), an intersection of two highways was obscured because about one-eighth of a mile west of the intersection the highway was located on land that was from three (3) to nine (9) feet lower than the area about the intersection. More importantly, the State maintained large piles of chat, a chat hoist and a road grader near the intersection and off the traveled portion of the roadway. Plaintiffs contentions were stated by the court as follows: “His allegations are that the piles of chat, the chat hoist and the road grader so interfered with plaintiffs view that he could not see the Beason truck as it approached the intersection, and also interfered with the view of Beason; that there were no signs along the highway indicating that he was approaching an intersection, and that this interference with his view, and lack of road signs, amounted to a defect in the state highway, for which the highway is liable under G.S. 1935, 68-419.” 160 Kan. at 710. The court rejected all of these contentions and stated: “If there were obstructions to the view from the side it simply placed upon the plaintiff a greater degree of care in his approach to the intersection.” 160 Kan. at 711. See also Moore v. State Highway Comm., 150 Kan. 314, 92 P.2d 29 (1939); Bohm v. Racette, 118 Kan. 670, 236 Pac. 811 (1925). It can be seen that, even when there was a statutory duty to keep highways free from defects, the statute was not thought to create liability for obstructions to vision lying off the traveled portion of the roadway. We do not believe that it was the intention of the legislature to create such a duty by the passage of the KTCA. There can be no doubt that even with the repeal of the statutory liability for defects in the highways, a duty to maintain the highways remains under the general liability for negligence created by the KTCA. Although the scope of that duty is to be determined on a case-by-case basis and no hard and fast rule can be stated which would cover all possible future factual situations, Carpenter makes it clear that the Manual on Uniform Traffic Control Devices is to be used as a guide for state and local highway engineers in exercising their professional judgment as to any particular highway problem. However, whether a particular set of facts falls within any of the exceptions created by K.S.A. 1983 Supp. 75-6104 must be determined by considering “the totality of the circumstances” in the particular case. Carpenter v. Johnson, 231 Kan. at 790. We find no error in the trial court’s directed verdict in favor of Franklin County. We also find no error in the trial court’s instruction to the jury that even though Franklin County was immune from liability under the KTCA its fault, if any, must be considered and determined by the jury. Wilson v. Probst, 224 Kan. 459, 581 P.2d 380 (1978). The last issue on appeal is whether the jury’s assessment of 10% negligence to Corrinne M. Toumberlin is contrary to the evidence. When a verdict is attacked on the ground it is contrary to the evidence, it is not the function of this court on appeal to weigh the evidence or pass on the credibility of the witnesses. If the evidence with all reasonable inferences to be drawn therefrom, when considered in a light most favorable to the successful party below, will support the verdict this court should not intervene. Timsah v. General Motors Corp., 225 Kan. 305, Syl. ¶ 1, 591 P.2d 154 (1979). Regarding the passenger’s negligence, the trial court’s instruction to the jury was as follows: “If a passenger has knowledge of danger and the circumstances are such that an ordinary person would speak out or take other positive action to avoid injury to himself or herself, then it is his or her duty to do what the ordinary person would do under the circumstances. Unless such knowledge and circumstances exist, the passenger may rely upon the driver to attend to the operation of the vehicle.” The instruction is taken verbatim from PIK Civ. 2d 8.91, and plaintiffs make no contention it was erroneous. Without reviewing the evidence, suffice it to say there was substantial competent evidence which, if believed, supports the jury’s verdict and therefore the verdict will not be disturbed on appeal. The judgment is affirmed.	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The opinion of the court was delivered by Herd, J.: Edna Alice Ward (formerly Dallas) appeals from a judgment determining that her former husband, Earl Clay Dallas, has paid all past due child support. The Court of Appeals affirmed the ruling of the trial court in an unpublished opinion filed February 23, 1984, and we accepted review. The parties were divorced on June 22,1967. The court ordered the appellee to pay $175 per month for the support of the Dallas’ two minor children. In March of’1969, the appellee fell behind in his child support payments and for the next ten years he paid less than the required $175 per month. His usual payments were between $130 to $145. By February 1979 he was substantially in arrears. The older of the two children turned eighteen that month, and the $175 monthly obligation was hence reduced by half, to $87.50, under the rule in Brady v. Brady, 225 Kan. 485, 491, 592 P.2d 865 (1979). The appellee continued to pay $145 per month until January 1980. That month he paid nothing and for the first time, the appellant filed a garnishment against him. The appellee resumed payments, which continued until May 1982, a full year after the second child turned eighteen. In December, 1982, the appellant moved for an order determining the amount of unpaid child support. The trial court ruled that any payments due before January 21, 1975, were unenforceable dormant judgments. The court also held the appellee had paid all past due support which had not become doi'mant: “6) That between February 1975 and February 1979 (when the obligation was reduced to $87.50 per month) the defendant was delinquent in child support in the total sum of $1,675.20 which is broken down to be $1,440.00 in past due support and $235.20 in accrued interest. “7) That by applying the amount over-paid by defendant from February, 1979 first interest and then the past due child support, the Court finds the defendant to have completely paid off any arrearage by May, 1981, after the defendant’s obligation to pay child support ceased. “8) That all payments by defendant since May, 1981, are now considered by the Court to be gratuitous payments of support due prior to February, 1975, which are not now collectable because such judgments lapsed and were not revived. “9) That the defendant’s obligation to pay child support has long since terminated and there are no amounts of past due support which may be collected.” The sole issue on appeal is whether the trial court erred in holding child support payments due before January 21, 1975, were dormant pursuant to K.S.A. 60-2403. Installment payments for child support become final judgments when due. Such judgments may be enforced like other judgments and are subject to the dormancy statute, K.S.A. 60-2403. See Riney v. Riney, 205 Kan. 671, Syl. ¶ 1, 473 P.2d 77 (1970). The appellee paid less than the required amount 132 times between March, 1969, and February, 1980, so there were 132 separate judgments against him. The trial court ruled that all payments due before January 21,1975, were dormant judgments. The total amount of the dormant judgments was $3160, excluding interest. Appellant first argues it is against public policy to apply the dormant judgment statute to underpayments of child support. She then cites cases pertaining to the statute of limitations. These cases, as well as K.S.A. 60-520, provide that partial payment by a debtor will toll the statute of limitations. The statute of limitations however, is not at issue here; rather, the dormant judgment statute, K.S.A. 60-2403, is controlling. It provides: “If execution, including any garnishment proceeding and any proceeding in aid of execution, shall not be sued out within five (5) years from the date of any judgment, including judgments in favor of the state or any municipality in the state, that has been or may hereafter be rendered, in any court of record in this state, or within five (5) years from the date of any order reviving such judgment, or if five (5) years have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment, including court costs and fees therein shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor.” (Emphasis added.) We note this statute speaks of “all judgments” making no exception for child support judgments. It makes no provision for partial payments tolling dormancy. Only the issuance of execution or garnishment will toll the dormancy statute. See First National Bank v. Harper, 161 Kan. 536, 169 P.2d 844 (1946). Appellant did not seek execution or garnishment until January 21, 1980, thus the judgments for unpaid child support due more than five years before that date are dormant. Let us now turn to a consideration of how many of the judgments are dormant. Appellant argues that once appellee fell behind in his payments, each payment made thereafter should apply first to interest and then to principal on the overdue child support payments. Only after such application of the funds would payments be applied to the current support obligation. This is known as the United States Rule. Under this theory, the judgments, otherwise dormant, would have been paid in full, leaving only the more recent judgments unpaid. In Shutts, Executor v. Phillips Petroleum Co., 222 Kan. 527, Syl. ¶ 24, 567 P.2d 1292 (1977), cert. denied 434 U.S. 1068 (1978), we followed Jones v. Nossaman, 114 Kan. 886, 221 Pac. 271 (1923), and Christie v. Scott, 77 Kan. 257, 94 Pac. 214 (1908), and held the United States Rule applied to a partial payment on an interest-bearing debt, in the absence of an agreement or a statute to the contrary, and such payments applied first to interest, then to principal. The application of the United States Rule to the child support judgments in this case would leave only the non-dormant judgments unpaid. The Court of Appeals, citing Aetna Casualty and Surety Co. v. Hepler State Bank, 6 Kan. App. 2d 543, Syl. ¶ 13, 630 P.2d 721 (1981), in this case held: “If a debtor owes a creditor more than one debt, in the absence of a direction from the debtor to the creditor as to how a payment is to be applied, the creditor may elect to apply it to any debt he chooses.” It then applied Aetna to the instant case and ruled there was no showing Mrs. Ward elected to apply each monthly payment to interest and overdue principal. The court then concluded, after examining appellant’s record of payments from Mr. Dallas, that she had applied each payment as a partial payment of the $175 judgment due each month. Our examination of exhibit B confirms this finding. Thus, under the Aetna rule which allows the creditor, under the circumstances of this case, the privilege of applying a partial payment on multiple debts to the debt of her choosing, Mrs. Ward chose to apply the payments to the current monthly obligation'. Her choice precludes the application of the United States Rule on all of the payments not in excess of the monthly judgments. This is consistent with other decisions of this court with regard to underpayment of child support. In McKee v. McKee, 154 Kan. 340, 118 P.2d 544 (1941), we treated a $10 monthly deficiency in child support over a 19-year period as shortages for each month. Thus, the dormancy statute applied, allowing recovery for the deficiencies only in the last five years. See also Riney v. Riney, 205 Kan. at 679; Peters v. Weber, 175 Kan. 838, 843-44, 267 P.2d 481 (1954); Sharp v. Sharp, 154 Kan. 175, 181, 117 P.2d 561 (1941). In addition, K.S.A. 60-1610(a)(l) provides for support and education of minor children, making no provision for application of the funds other than for such support. The statute thus contemplates the use of such funds for support rather than for the reimbursement of funds to the custodial parent for past deficiencies. This shows Mrs. Ward correctly applied the support payments to current support. We hold the United States Rule is not applicable to child support payments which are not overpaid. Such payments are exceptions to that rule. However, since the parties made no choice about overpayments, we conclude the United States Rule is applicable to such payments. In the absence of direction from either the debtor or creditor, overpayments of child support shall be applied first to interest, then to overdue support dating back to the earliest nondormant judgment. The judgments of the Court of Appeals and the trial court are affirmed.	[ -16, 127, -75, 124, 10, 98, 11, -104, 22, -87, 49, 87, -85, 64, 20, 105, 18, 59, 100, 96, 65, -73, 7, 64, -18, -13, -5, -44, -111, 89, -28, -42, 77, 48, -118, -43, 102, -56, -63, 24, -50, -122, -71, 93, 81, 2, 52, 33, 18, 15, 49, -122, -77, 42, 60, 90, 40, 47, 91, -71, 8, -14, -118, 5, -17, 64, -79, 22, -74, -123, 72, 46, -100, 48, 2, -24, 50, -92, -122, 116, 75, -69, 13, 116, 102, 113, 61, -49, -8, -120, 38, -42, -99, -90, -102, 88, 11, 15, -74, 29, 108, 84, 15, -4, 78, -123, 60, -28, 65, -118, -44, -79, -55, 112, 10, 26, -25, -89, 50, 113, -49, -94, 92, 70, 115, -109, -122, -98 ]
The opinion of . the court was delivered by Prager, J.: This is a direct appeal in a criminal action from jury convictions of rape (K.S.A. 1983 Supp. 21-3502) and aggravated sodomy (K.S.A. 1983 Supp. 21-3506). Many of the facts are undisputed and essentially are as follows: The victim, whom we will call Mrs. T, was separated from her husband and lived with her two and one-half year old son in Leavenworth. Several weeks earlier, her husband had moved out of the family home and was staying in the home of a mutual friend in Kansas City, Kansas. At 10:30 p.m. on May 5, 1983, Mrs. T and her son caught a ride from Leavenworth to Kansas City and proceeded to the home of the mutual friend so that she could talk with her husband. Although Mrs. T talked with him, she was not able to persuade him to come home. During the evening, the defendant, Richard Roger Bressman, arrived at the friend’s home. Having failed to convince her husband to come home, Mrs. T began looking for a ride back to Leavenworth. Apparently no one wanted to furnish her transportation. She then asked defendant Bressman to drive her home and offered him $10 for gas. He reluctantly agreed and they left the friend’s residence at approximately midnight in his car with defendant driving and Mrs. T and her son as passengers. At this point, the facts in the case enter the area of dispute. According to Mrs. T’s testimony, they first stopped to obtain gas and then proceeded toward Leavenworth. On the way, defendant drove the car off of Highway K-7 onto State Avenue and then proceeded along a dirt road. According to Mrs. T, defendant stopped the car, threatened her with a knife, and forced her to disrobe. Then he forced her to have vaginal and oral sex. She testified that she tried to run away from him twice. She saw the lights of a car approaching the area. She ran toward it and screamed for help. It was a patrol car with a deputy sheriff driving. The officer yelled for defendant and he came out of the woods and surrendered. Mrs. T, who was partially disrobed, dressed and awakened her son who was still peacefully sleeping in the back of defendant’s vehicle. The defendant was arrested and taken to the Wyandotte County jail. Mrs. T was taken to the Bethany Medical Center for an examination. The defendant’s testimony was substantially different. He testified that he pulled off the road because he had to go to the bathroom and felt sick to his stomach. He testified that, after the car stopped, Mrs. T began unbuttoning her shirt and asked if he wanted to have sex. The defendant testified that he declined and went into the woods to urinate and vomit. According to defendant, Mrs. T followed him into the woods. He told her to go back to the car. Shortly thereafter, the patrol car arrived, and Mrs. T told the officer that she had been raped. Defendant was then arrested. Defendant denied that he had had any sexual relations with Mrs. T or molested her at any time. Some of the evidence presented in the case partially corroborated Mrs. T’s version of the incident. Other evidence corroborated the testimony of the defendant. Mrs. T was taken to the Bethany Medical Center where all of the tests customarily made to determine whether sexual acts had taken place were made. These tests included an examination of all clothing; saliva tests; head, pubic hair, and urine analyses; vaginal swabs; and a physical examination of Mrs. T. Some of the materials were analyzed at the medical center. The remaining materials were sent to the KBI laboratories in Topeka for analysis. All of the State’s expert witnesses testified that none of the tests provided any evidence to show that sexual acts had taken place. There was testimony from the deputy sheriff that, when he arrived at the scene, he observed someone running through the woods. He then saw the defendant emerge from the woods with his pants down, his zipper open, and his belt dragging on the ground. The officer also found two open knives in the woods next to a creek bed. The defendant was tried to a jury which brought in a verdict of guilty on both counts. Defendant appealed. The first point raised by the defendant on the appeal is that the trial court erred in limiting defense counsel’s cross-examination of the complaining witness regarding her past history of gonorrhea. Mrs. T testified, both at the preliminary hearing and at trial, that, during the time defendant was forcing her to engage in sexual acts, she told defendant to stop because she had gonorrhea. At that point, defendant did cease raping her and forced her to perform oral sex. In her statement to sheriffs officers, Mrs. T stated she told the defendant she had gonorrhea to get him to stop raping her. The officer inquired as to whether or not she actually had gonorrhea, and she replied that she did not. Mrs. T had gonorrhea tests at Bethany Hospital on the day of the incident which were negative. She had been treated for gonorrhea not long before the incident of May 5, 1983. Prior to trial, defense counsel filed a motion in limine to determine the extent to which he could inquire into Mrs. T’s past history or treatment for gonorrhea. In his argument, he mentioned records of the City-County Health Department, but those medical records were not offered. The State contended that the matter was completely irrelevant, because the medical tests of Mrs. T made on the day of the incident established that she did not have gonorrhea and, therefore, any prior history of gonorrhea was irrelevant and inadmissible since it inferentially involved prior sexual conduct and was inadmissible under the rape shield statute (K.S.A. 60-447[a] [Weeks], subsequently transferred to K.S.A. 1983 Supp. 21-3525). K.S.A. 1983 Supp. 21-3525(2) provides: “(2) Except as provided in subsection (3), in any prosecution to which this section applies, evidence of the complaining witness’ previous sexual conduct with any person including the defendant shall not be admissible, and no reference shall be made thereto in the presence of the jury, except under the following conditions: The defendant shall make a written motion to the court to admit evidence or testimony concerning the previous sexual conduct of the complaining witness. The motion must be made at least seven days before the commencement of the trial unless that requirement is waived by the court. The motion shall state the nature of such evidence or testimony and its relevancy and shall be accompanied by an affidavit in which an offer of proof of the previous sexual conduct of the complaining witness is stated. The court shall conduct a hearing on the motion in camera. At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the previous sexual conduct of the complaining witness is relevant and is not otherwise inadmissible as evidence, the court may make an order stating what evidence may be introduced by the defendant and the nature of the questions to be permitted. The defendant may then offer evidence and question witnesses in accordance with the order of the court.” It should be noted that the defendant filed a timely motion for admission of the testimony concerning the complaining witness’s previous history of gonorrhea. The matter was presented to the trial court which held that the defendant would not be allowed to inquire or introduce evidence as to her prior history of gonorrhea. Stated simply, it is the position of defendant that he was not bringing up the subject to embarrass the complaining witness. Defendant contends that, since she testified that she told the defendant that she had gonorrhea and later made a statement to the sheriff s officer denying that she had gonorrhea, he had the right to bring up evidence of her prior history of gonorrhea in order to attack her credibility. It is the position of the State that the trial court did not abuse its discretion in excluding the testimony, because whether or not the complaining witness had had gonorrhea at some time in the past was not material, since the medical test taken on the day of the incident showed that she did not have gonorrhea. It should be noted that, at the trial, Mrs. T simply testified that she told defendant she had gonorrhea to stop further sexual assaults upon her. We have concluded that the trial court did not abuse its discretion in prohibiting cross-examination of the complaining witness about her prior history of gonorrhea. This court has held that a trial court’s ruling on a motion in limine excluding evidence under the rape shield act will not be disturbed absent a showing of abuse of discretion. An abuse of discretion is defined as when no reasonable person would take the position adopted by the trial court. State v. Stellwagen, 232 Kan. 744, 659 P.2d 167 (1983). The Court of Appeals in In re Nichols, 2 Kan. App. 2d 431, 434, 580 P.2d 1370, rev. denied 225 Kan. 844 (1978), stated that the rape shield statute allows evidence of an alleged rape victim’s prior sexual conduct if it is proved relevant to any fact at issue, such as the identity of the rapist, the consent of the victim, and whether or not the defendant actually had intercourse with her. Nichols discusses the standard of review in cases dealing with the rape shield statute in the following language: “Because the statute makes relevancy the touchstone of admissibility of the evidence, the same standard of review applies to decisions made under this statute as applies to appellate review of any other question involving the relevancy of evidence: decisions regarding the relevancy of evidence rest within the sound discretion of the trial court, and the trial court’s decision should not be set aside absent a showing of abuse of discretion. See State Highway Commission v. Lee, 207 Kan. 284, 291, 485 P.2d 310 (1971), and State v. Gonzales, 217 Kan. 159, 161, 535 P.2d 988 (1975).” 2 Kan. App. 2d at 433. In this case, the only basis for the defendant’s offering evidence of the complaining witness’s prior history of gonorrhea was to challenge her credibility. In our judgment, the trial court did not abuse its discretion in excluding the testimony. Mrs. T never testified that her statement to defendant that she had gonorrhea was true. It was to stop him from going further. The statement made to the officer that she did not have gonon'hea was a true statement as shown by the laboratory test the day of the incident. Thus, the trial court did not abuse its discretion in excluding the evidence. The proffered evidence that Mrs. T at one time had had gonorrhea was irrelevant and could serve only to embarrass the victim. The defendant’s first point is without merit. The second point raised by the defendant on the appeal is that the trial court erred in permitting the State’s expert witness, the physician who examined Mrs. T at Bethany Medical Center following the incident, to state before the jury her opinion that Mrs. T had been raped. At the trial, the State called to the witness stand Dr. Merrill Stass-Isern. Dr. Stass-Isern is employed at Bethany Medical Center as an emergency medicine physician. Her duties are basically to diagnose and treat any person who enters the emergency medicine facility. She was trained by five years of medical school and had had three years of residency. She is board certified in emergency medicine and had been employed at Bethany Hospital for three and one-half years. The record does not show that she had special training in psychiatry or that she was qualified to diagnose psychiatric problems. The doctor testified that, while she was employed at Bethany Medical Center, she had had the opportunity to examine persons complaining of rape. Bethany is a rape referral center, and she may see from one to three persons complaining of rape per month. Over the three and one-half year period of her employment, she had seen 30 to 50 individuals who complained that they had been raped. She testified that such individuals have certain common characteristics and emotional problems, falling into three categories: (1) One type of person is hysterical and has a very hard time coping with anything immediately past the rape crisis. (2) Another person is very upset and tearful but rational and is able to describe what has happened to her. (3) The third person is very withdrawn and does not want to relate the circumstances and usually withdraws into herself. Dr. Stass-Isern testified that, in the early morning hours of May 5, 1983, she examined Mrs. T at the hospital in the emergency department. She questioned Mrs. T, who complained of having been raped and related to her the circumstances. She gave Mrs. T a thorough examination. Her testimony was that Mrs. T described the incident essentially in the same manner that Mrs. T testified at the trial. She described Mrs. T’s emotional state as tearful but rational and able to describe the incident. The doctor testified that Mrs. T’s emotional state was consistent with one of the three categories of rape victims mentioned above. The physical examination performed on Mrs. T included an examination of her mouth and her pelvic and rectal regions. The doctor found no physical evidence that Mrs. T had been involved in sexual intercourse. She found no bruises. The following questions and answers then occurred: “Q Doctor, based upon your medical education, treatment of prior rape victims, and your observations of [Mrs. T] and examinations of her, would you be able to render an opinion as to whether or not [Mrs. T] was raped or not? “MR. PARKS: I object to that calling for a conclusion of the witness completely. “MR. GORMAN: Judge, it most certainly is, and I believe I have laid sufficient foundation that she testified as an expert witness. The laws of evidence allow for expert witnesses to testify as to opinions. “THE COURT: Objection is overruled. “Q (By Mr. Gorman) Doctor, would you be able to draw an opinion? “A Yes, I believe she was raped.” On cross-examination, Dr. Stass-Isern testified as to various tests performed on Mrs. T. She testified that she collected combed hair from various parts of Mrs. T’s body, did a gonorrhea culture, did a pregnancy test, and did a number of other tests. She testified that the results were negative as to all tests. She found no evidence of trauma. The witness testified that her conclusion that Mrs. T had been raped was based on her prior knowledge of rapes, her medical experience, Mrs. T’s story, and the findings that she put together with the tests and the history. The witness was then excused. It is the position of the defendant that the trial court erred in admitting the expert’s testimony because it was without sufficient foundation and invaded the province of the jury. The State argues that the opinion evidence was admissible under K.S.A. 60-456 which provides in part as follows: “(b) If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness. “(c) Unless the judge excludes the testimony he or she shall be deemed to have made the finding requisite to its admission. “(d) Testimony in the form of opinions or inferences otherwise admissible under this article is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact.” In Lollis v. Superior Sales Co., 224 Kan. 251, 580 P.2d 423 (1978), it was held that, under K.S.A. 60-456, the opinion testimony of experts on the ultimate issue or issues is not admissible without limitation. Such testimony is admissible only insofar as the opinion will aid the jury in the interpretation of technical facts or when it will assist the jury in understanding the material in evidence. (Syl. ¶ 1.) The basis for the admission of expert testimony is necessity, arising out of the particular circumstances of the case. Where the normal experience and qualifications of laymen jurors permit them to draw proper conclusions from given facts and circumstances, expert conclusions or opinions are inadmissible. (Syl. ¶ 2.) To the same effect is Smith v. Estate of Hall, 215 Kan. 262, 524 P.2d 684 (1974), where it was held, “An expert’s opinion in a proper case is admissible up to the point where an expression of opinion would require him to pass upon the credibility of witnesses or the weight of disputed evidence.” (Syl. ¶ 3.) See also State v. Reed, 226 Kan. 519, 601 P.2d 1125 (1979). On the basis of the record before us, we hold that the trial court committed prejudicial error in permitting Dr. Stass-Isern to testify that in her opinion Mrs. T had been raped. In the first place, the record shows a lack of proper foundation to qualify Dr. Stass-Isern as an expert to render such an opinion. There was no showing that she was trained as an expert in psychiatry. There was no showing that the bases for her conclusions were generally accepted in the field of psychiatry. Her conclusions were not based on a psychiatric examination and diagnosis. Although she had had some contacts in the past with women who came to the hospital claiming they had been raped, her conclusion was essentially based on the story related to her by Mrs. T and her physical examination of Mrs. T which was negative in result. We further hold that a jury could properly assess the state of mind and actions of Mrs. T following the arrest of the defendant. As noted in Lollis, the basis for the admission of expert testimony is necessity. Here the normal experiences of laymen jurors would permit them to draw proper conclusions from the evidence presented by the State. In addition, Dr. Stass-Isern, in arriving at her opinion that Mrs. T had been raped, of necessity had to pass upon the credibility of Mrs. T’s story. The legal principles followed in Lollis v. Superior Sales Co. and Smith v. Estate of Hall are applicable and precluded the admission of Dr. Stass-Isern’s opinion that Mrs. T had been raped. We also wish to point out that our decision in State v. Marks, 231 Kan. 645, 647 P.2d 1292 (1982), has no application in this case. Marks held that, when consent is the defense in a prosecution for rape, qualified expert psychiatric testimony regarding the existence of “rape trauma syndrome” is relevant and admissible. Here consent was not the defense to the charge of rape. Mrs. T’s testimony was that she had been raped at knife point. The defendant denied that any sexual intercourse took place at all. Furthermore, before a scientific opinion may be received in evidence at trial, the basis of that opinion must be shown to be generally accepted as reliable within the expert’s particular scientific field. State v. Washington, 229 Kan. 47, 53, 622 P.2d 986 (1981). No such showing was made in this case. Also in Marks the testimony of the psychiatric expert, Dr. Modlin, was based on scientific evidence that he obtained from his psychiatric examination of the victim. In the case now before us, the medical expert was not specially trained in psychiatry and did not examine Mrs. T for the purpose of rendering a psychiatric diagnosis as to whether or not Mrs. T evidenced “rape trauma syndrome.” Our decision in Marks does not in any way authorize a medical expert to testify that in his opinion the complaining witness in a particular case was raped. The expert psychiatric testimony authorized by Marks is restricted to the victim’s state of mind and the existence of the “rape trauma syndrome.” The admission of the expert opinion of Dr. Stass-Isern that Mrs. T had been raped was clearly improper and prejudicial to the right of the defendant to a fair trial. There was a conflict between the testimony of Mrs. T and that of the defendant as to what happened in the woods after the car was parked. It was up to the jury to resolve that conflict. Their decision could have been affected by Dr. Stass-Isern’s opinion. The third point raised on the appeal is that there was insufficient evidence to support the verdict of guilty. The test to be applied to determine the sufficiency of evidence to support a verdict of guilty has been stated many times by this court: Does the evidence when viewed in the light most favorable to the prosecution convince the appellate court that a rational fact-finder could have found the defendant guilty beyond a reasonable doubt? State v. Matlock, 233 Kan. 1, 660 P.2d 945 (1983). In Matlock, it was held that a conviction of rape can be upheld on the uncorroborated testimony of the prosecutrix alone. It is only where the testimony of the prosecutrix is so incredible and improbable as to defy belief that the evidence will not be held sufficient to sustain a conviction. From the record in this case, we hold that there was sufficient evidence to sustain a verdict of guilty. The victim testified that she was threatened with a knife. She screamed for help upon the arrival of the police officer at the scene. She told the same basic story to several witnesses shortly after the incident occurred. The officer at the scene observed the defendant coming out of the woods with his zipper down and his belt dragging on the ground. We also note the testimony of the police officer that he found two open-bladed knives in the woods. We hold that this sufficiently corroborated the testimony of the complaining witness to support the verdict, although, as noted above, the trial court committed prejudicial error in admitting the expert opinion of Dr. Stass-Isern. For the reasons set forth above, the judgment of the district court is reversed and the case is remanded to the district court with directions to grant the defendant a new trial. Schroeder, C.J., concurs in the result.	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Whereas, on the 17th day of October, 1984, Arno Windscheffel, disciplinary administrator, filed a disciplinary complaint against Buford L. Shankel, an attorney admitted to the practice of law in the State of Kansas, alleging that the respondent failed to account to a client for funds collected on behalf of the client; and Whereas, Buford L. Shankel was charged in the District Court of Johnson County, Kansas, Case No. K47473 with one count of felony theft (K.S.A. 21-3701) and one count of failure to account to a client (K.S.A. 7-119); and Whereas, Buford L. Shankel pled guilty in the District Court of Johnson County, Kansas, to the charge of failure to accountto a client; and Whereas, on the 14th day of November, 1984, Buford L. Shankel notified the Clerk of the Appellate Courts and the Disciplinary Administrator that he desired to relinquish his license and privilege to practice law pursuant to Supreme Court Rule 217 (232 Kan. clxx); and Whereas, after due consideration, the Court finds that respondent’s certificate to practice law should be cancelled and the voluntary relinquishment of his privilege to practice law be accepted: Now, Therefore, It is Ordered, Adjudged and Decreed that Buford L. Shankel be, and he is hereby disbarred from the practice of law in the State of Kansas and the privilege of Buford L. Shankel to practice law in the State of Kansas is hereby revoked and the Clerk of the Appellate Courts is directed to strike the name of Buford L. Shankel from the roll of attorneys in the State of Kansas. It is Further Ordered that the certificate of Buford L. Shankel to practice law in the State of Kansas is hereby cancelled and declared null and void and the costs of this action are assessed to Buford L. Shankel. By Order of The Court effective this 3rd day of December, 1984. It is Further Ordered that this order shall be published in the official Kansas Reports and that the Clerk of the Appellate Courts shall comply with the requirement of Supreme Court Rule 217.	[ -80, -22, -99, 93, 24, 32, -70, 56, 89, -93, 39, 83, -23, -38, 6, 125, 83, 13, 21, 106, -59, -74, 119, 65, 38, -5, -55, -43, -70, 95, -9, -75, 75, -80, 10, -107, 6, -120, -59, -100, -114, 36, 9, -48, -37, -63, 52, 57, 18, 11, 113, 15, -93, 42, 55, 73, -88, 108, -4, -127, -47, -111, -104, 21, 127, 17, -79, -124, -98, -123, 84, 47, -116, 49, 1, -7, 115, -106, -126, -12, 79, 41, 0, 102, 102, 35, 49, -81, -72, -88, 6, 50, -99, -90, -103, 88, 67, -120, -74, -99, 119, -110, 35, 124, -28, -121, 27, 108, 10, -53, -44, -79, -50, 118, -114, 27, -2, -58, 32, 113, -100, -28, 94, 71, 56, 27, -116, -11 ]
The opinion of the court was delivered by Prager, J.: This is an action seeking judicial review of an ordinance adopted by the Board of Commissioners of the City of Kansas City granting a special use permit for the operation of a sanitary landfill to be located within the city. The action was brought, pursuant to K.S.A. 12-712, by certain property owners owning land adjacent to the proposed landfill site. This court has held that an action for injunctive relief may be used to challenge ordinances of a city which grant special use permits. Weeks v. City of Bonner Springs, 213 Kan. 622, 518 P.2d 427 (1974); Gaslight Villa, Inc. v. City of Lansing, 213 Kan. 862, 518 P.2d 410 (1974). Following a hearing on the application for the special use permit, the Board of Commissioners (Board) of the city made comprehensive findings of fact which set forth the background, chronology, procedure, and the evidence which the Board relied upon as a basis for granting the special use permit. The Board’s findings of fact were as follows: “1. The City of Kansas City, Kansas, on June 27, 1974, submitted a solid waste management plan to the Kansas Department of Health and Environment. “2. Illegal dumping problems and the need for an intra-city sanitary disposal system to comply with State and Federal mandates have been serious concerns for the City for the past decade. “3. On January 28, 1981, the Kansas Department of Health and Environment issued a directive to the Mayor of Kansas City to reevaluate the City’s Solid Waste Management Plan. That directive outlined seven areas for investigation and evaluation. Immediately subsequent to the Kansas Department of Health and Environment’s directive, Wilson and Company was directed by the City to conduct the required investigation and evaluation. The directive created a January 1, 1982, deadline for the restudied plan. (Exhibit No. 22) “4. In June 18, 1981, Wilson Laboratories submitted the Solid Waste Management Evaluation to the City of Kansas City. In May of 1981, a proposed revision to the City of Kansas City, Kansas’, Solid Waste Management Ordinance was submitted to the Board of City Commissioners for approval by Wilson and Company. These documents were studied by various City departments and the Board of City Commissioners in the following months. However, the alternative proposed, incineration, was found to be unacceptably costly and no action to amend the Solid Waste Management Plan or Ordinance was taken. (Exhibits Nos. 19 and 22) “5. On February 9, 1982, a letter from the Kansas Department of Health and Environment extended the date for submittal of a Comprehensive Revision of the Solid Waste Management Plan to July 1,1982, and included additional comments which required further study. “6. On April 19, 1982, the Kansas Department of Health and Environment officials met with City officials in Topeka to further clarify the requirements of their directive of January 28,1981. As a result of that meeting, the City outlined a new plan of action. “7. On December 9, 1982, Resolution No. 35224 was adopted by the Board of City Commissioners authorizing the Mayor to execute a contract with Black & Veatch, Consulting Engineers, to restudy the City’s Solid Waste Management needs. (Exhibit No. 16) “8. In December, 1982, Western University Association and Browning-Ferris Industries filed a petition for a Special Use Permit to allow the placement and operation of a sanitary landfill in an area between 32nd Street and 1-635, just south of the Missouri Pacific Railroad. “9. On December 20, 1982, a Notice of Hearing before the Planning Commission was published in the official newspaper of the City of Kansas City, Kansas, calling for a public hearing to be held on the proposed Special Use Permit on January 10, 1983. On December 30, 1982, notices of the Planning Commission hearing were mailed to owners of property located within 200 feet of the area proposed for the Special Use Permit. (Exhibit No. 4) “10. The proposed Special Use Permit was considered on January 10, 1983. Said public hearing was continued until January 21, 1983. At the conclusion of the public hearing on January 21, 1983, the Planning Commission recommended the petition for denial by a vote of 7-1. No specific reasons were provided in relation to the denial. (Exhibits Nos. 8 and 9) “11. On January 26, 1983, a public hearing was held before the Board of City Commissioners of Kansas City, Kansas. (Exhibit No. 10) “12. At this hearing, letters in favor of the proposed Special Use Permit were received by the Board of City Commissioners from Halco, Incorporated, K.C. Abrasive Company, Industrial Lumber Company, International Harvester, Certain-Teed Corporation, the Port Authority of Kansas City, Kansas, Harding Glass Industries, Wenzel Machinery Co., Inc., Mid-West Conveyor, Sealright Co., Inc., Firestone Truck Tire Center, American Laminates, Inc., and the Industrial Council of the Kansas City, Kansas, Area Chamber of Commerce. “13. At this hearing, a letter from Charles H. Linn, P.E., Chief of the Engineering and Sanitation Section of the Bureau of Environmental Sanitation, Kansas Department of Health and Environment, was submitted. In part, this letter stated: “ ‘Our review indicates that this is a suitable location for a sanitary landfill. Given adequate planning and development, we believe that an excellent landfill can be operated on this site.’ (Exhibit No. 3) “14. At this hearing, Darrel D. Newkirk, M.D., M.P.H., Director of the Wyandotte County Department of Health, submitted a letter which in part stated: “ ‘For these reasons, therefore, the City-County Health Department is strongly supportive of the development of a properly planned and designed sanitary landfill in the City. We think it would definitely help solve some of our illegal dumping problems. Our agency, by legal mandate, would assure that any sanitary landfill developed in the City would be routinely inspected and properly regulated.’ (Exhibit No. 2) “15. At this hearing, Bruce M. Browne, P.E., Director of the City Water Pollution Control Department, after review and study of the Proposal by the Water Pollution Control Department, submitted a letter stating that the department had no objection to this proposed sanitary landfill. His opinion was based in part on review of the Engineering study provided by the petitioner. (Exhibit No. 2) “16. At this hearing, Gary C. Stubbs, the City’s Director of Public Works, after review and study of the Proposal by the Engineering Department, submitted a letter stating that: “ ‘. . . the Engineering Department supports the proposal for the Browning-Ferris landfill development as represented by the [engineering study] report dated December, 1982, and would be willing to support other similar developments which solve the access provision without disturbing local streets and the adjacent local neighborhoods.’ (Exhibit No. 2) “17. At the hearing, Robert Settich, Executive Director of the Kansas City, Kansas, Port Authority, after review and study of the proposal, submitted a letter stating the Port Authority’s support of the proposed landfill: “ ‘If the community is to grow, it must be able to provide the services that growth demands. Solid waste disposal is one of those essential services that a community must recognize and address in a positive manner if it wants to shape its own future. While I am not qualified to give an unreserved endorsement of the new landfill from an engineering standpoint, the site chosen does seem to have positive potential, and no unsolvable problems have yet been identified.’ (Exhibit No. 2) “18. Various other comments by city, county, state, and administrative officials were received regarding this proposed sanitary landfill. All of these communications were delivered to this Board and reviewed prior to its public hearing on January 26, 1983. (Exhibits Nos. 2 and 3) “19. A letter voicing concern over the landfill was received from Kansas State Representative Clarence C. Love. His major concern was that there be no access to the landfill site through residential neighborhoods. (Exhibit No. 6) “20. Fred Whitehead, editor and publisher of The Quindaro magazine, expressed opposition to this sanitary landfill proposal because the site has historical significance. He stated, in part: “ .‘Therefore, it was with alarm and dismay that I read of plans to convert this historic area into a dump site. Indeed, the particular area planned for the dump site includes not only the statue and new historic-site plaza around it, on the corner of 27th and Sewell, but the beautiful old cemetery on the crest of the bluff overlooking the entire river valley.’ (Exhibit No. 7) “21. In addition to the written communications received, persons both for and against this petition spoke at the public hearing on January 26, 1983. All due process rights of an opportunity to be heard and the right to cross-examine/question the other side were respected. Evidence of this is the fact the public hearing on this petition consumed approximately four continuous hours from 8:00 p.m. to midnight. (Exhibit No. 10) “22. Those who spoke in opposition voiced concern centered generally around the following: “(a) traffic access through residential neighborhoods; “(b) the historical value of the subject area; “(c) prevention of contamination of the City water supply; specifically, two communications from the Board of Public Utilities stating there must be stringent engineering safeguards utilized to assure safety to its water supply. (Exhibit 30) “(d) possible diminished residential property values; “(e) trash and vermin control. (Exhibits Nos. 8, 9, and 10) “23. Various protest petitions were received by the City Planning Commission, City Clerk, and this Board. . . . The vast majority were not notarized, acknowledged or in any way verifiable. In addition, review of the petitions indicates most signatures were of persons not in the subject area or in close proximity thereto. “24. Special Use Permits are authorized for sanitary landfill operations pursuant to City Code of Ordinances, Section 27-103(A)2(k). Code Section 27-103(B)l sets out the basic criteria for review of special use permit petitions. There are eight general areas which this Board must consider in reviewing special use permit petitions. Those are: “a. Whether the proposed use will destroy the aesthetics of the surrounding development (to protect the character of the surrounding development); “b. Whether the proposed use will result in increasing the amount of vehicular traffic to the point where it exceeds the capacity of the street network to accommodate it; “c. Whether the proposed use is reasonably necessary for the convenience and welfare of the public and will not substantially or permanently injure the appropriate use of adjoining property; “d. Whether the noise, vibration, dust, or lighting that would normally be associated with such use is of such duration and intensity as to be objectionable to adjacent property; ' “e. Whether the proposed use would pollute the air or water; “f. Whether the use would destroy an irreplaceable natural resource; “g. Whether the construction activities or quality of maintenance associated with the use would cause excessive erosion; and “h. Whether the proposed use would result in overcrowding of land or cause an undue concentration of population. (Exhibit No. 28) “25. At the January 26, 1983, public hearing, Michael Lawlor, Vice-President of Browning-Ferris Industries of Kansas City, Inc., addressed each of these criteria for review in detail. (Exhibit No. 27) “26. No person who appeared in opposition to the proposed rezoning at either the Planning Commission Hearing or the Board of City Commissioners’ Hearing submitted any documentary evidence, letters or expert testimony in support of their opposition to the proposed petition; nor was any of the oral testimony submitted sufficient to refute the totality of the evidence adduced by the proponents of the granting of the special permit. (Exhibits Nos. 8, 9, and 10)” In its resolution granting the special use permit, the Board accepted certain commitments made by Browning-Ferris Industries (BFI) to satisfy some of the objections presented by the landowners at the hearing. The Board ordered that there should be certain conditions precedent to any operational or property site activities on the landfill site by BFI: “(a) B.F.I. will provide interchange on 1-635 for access to the landfill which will allow 27th Street to be free of landfill related traffic. Maintenance and access control will also be provided by B.F.I. In addition to the B.F.I. commitment, the 1-635 interchange will be the only access to the landfill and no solid waste will be accepted until the interchange is complete. “(b) B.F.I. will procure a historical survey, meeting the guidelines of the Kansas State Historical Society which will be completed prior to site preparation activities. Findings of significance should be followed with an archaeological salvage operation. Building remains of significance should be left undisturbed and protected from landfill activities by fencing and other necessary measures. If leaving building remains is not compatible with landfill activities, B.F.I. shall submit a proposal suggesting how the historical significance can be retained through an alternate, such as relocation. This will require approval by the Governing Body. In addition, access to any sites of historical significance will be provided during the active life of the landfill upon request and adequate notice during periods when the landfill is closed. “Specifically, B.F.I. will provide access to the existing cemetery at 32nd Street and maintain said road and cemetery. “(c) That surface runoff diversion structures shall be constructed surrounding the landfill capable of diverting away from the landfill all of the surface water runoff from the upland drainage area from no less than the 10 year 24 hour precipitation event. “(d) That an acoustical study to determine potential noise problems shall be completed by B.F.I. prior to any site preparation activities, and that B.F.I. still comply with all recommendations of the acoustical expert necessary to maintain an acceptable environment. An acceptable environment will be defined as meeting H.U.D. standards considered normally acceptable, and forecasts shall be based on U.S. E.P.A. 1975 Report 550/9-76-004: ‘Noise Emission Standards for Construction Equipment,’ or updates by U.S. E.P.A. Should the City enact a comprehensive noise control ordinance, B.F.I. shall comply. “(e) Blowing refuse shall be controlled by proper alignment of unloading areas and through the use of downwind portable wire fabric fencing. Permanent fencing shall be provided adjacent to residential areas to control not only litter, but also to prevent access.” In addition to these conditions precedent, the Board established certain conditions subsequent to be complied with by BFI after it undertook actual operation of the sanitary landfill. They are as follows: “(a) ‘Compliance by B.F.I. with the City of Kansas City, Kansas,’ Solid Waste Management Plan. It is understood that said compliance must also be made with any revised Solid Waste Management Plan adopted by the City. “(b) Compliance by B.F.I. with any adopted Solid Waste Management Ordinance of the City in regard to its operation of this proposed sanitary landfill. “(c) That the B.F.I. sanitary landfill operation will be in accord with the criteria for evaluating sanitary landfill sites and operations presented by Black & Veatch, Consulting Engineers. Said Engineers are presently conducting a study on behalf of the City of Kansas City, Kansas. “(d) That not only shall all hazardous waste be entirely excluded from the landfill, but also, at least, the following: liquid industrial wastes such as acids, caustics, metal-finishing baths, paint, strippers, waste oils, waste solvents or other materials which are ignitable, corrosive, reactive, toxic, or infectious; industrial wastewaters; sanitary sewage, septic tank, cesspool or pit toilet cleanings; sanitary sewage sludges or nonhazardous industrial sludges not dewatered to a solid or semi-solid condition; and pathological wastes such as tissue, culture media, waste drugs and pharmaceuticals. “(e) That free disposal privileges shall be provided to Wyandotte County residents for personal domestic refuse. “(f) That Browning-Ferris Industries shall have no vested right to accept solid wastes during all daylight hours as it has committed to do, but shall anticipate that hours and days of operation will be further regulated by City ordinance. “(g) That in deference to the City’s water supply, the naturally occurring groundwater quality beyond the disposal site boundary (the area of actual waste disposal) shall not be degraded or if it is currently of adequate quality for drinking water supply, it shall not be degraded to a point where additional treatment would be required for use. It should be anticipated that any such degradation will result in the imposition of fines or suspension of landfill activities. “(h) That the City implies no approval of B.F.I.’s proposal to provide 2 feet of final cover and that ordinance changes should be anticipated that would require a certain depth of topsoil and/or additional depth of final cover so that more diverse plant life can be supported and erosion controlled.” In Finding of Fact No. 29, the Board required a separate agreement between the City of Kansas City, Kansas, and BFI in regard to the use of certain city property located within and abutting the proposed landfill site. Following these extensive Findings of Fact, the Board adopted Conclusions of Law as follows: “I. Special use permits are based upon the zoning power granted by the State but, by definition, empower governing bodies to impose conditions upon the granting of such permits to protect the health, safety and welfare of the public. “2. The City of Kansas City, Kansas has legislatively adopted a Special Uses ordinance setting out the procedure and basis for review in considering special use permit petitions. In this regard, the Board concludes that this Special Use Permit: “(a) Will not destroy the aesthetics of surrounding developments but rather will eliminate the use of this area for illegal dumping and upon completion of the landfill provide an aesthetically attractive park development. “(b) Vehicular traffic will not exceed street capacity because no traffic access will be allowed on existing residential streets but be exclusively routed off the proposed interstate exchange. “(c) This proposed sanitary landfill is crucial for the efficient disposal of sanitary refuse and will benefit the general public for many years. Proper operation will assure no adverse effects to adjoining property. “(d) Operational conditions and controls previously cited, i.e., an acoustical study regarding noise, on site dust controls, including a water truck, and earth and tree berming, no nighttime operations, etc., will prevent objectionable effects to adjoining properties. “(e) Air and water pollution will be avoided as represented by petitioner; based upon the study of the engineering firm, Woodward-Clyde, and the engineering construction and maintenance standards by the firm of Schlup, Becker & Brennan. “(f) There will be no destruction of an irreplaceable natural resource. As cited above, a historical survey will be conducted to identify and preserve significant historical resources. In addition, preservation and enhancement of an existing cemetery in the subject area will be provided by the petitioner. “(g) Construction and maintenance of this operation will not cause excessive erosion but will in fact control and remedy an existing soil erosion problem. “(h) This proposed use will not result in overcrowding of land or cause undue-concentration of population. “3. This Governing Body concludes that the instant petitioner has met the criteria of the City’s Ordinance regarding special use permits subject to compliance with the conditions hereinbefore set out, and, therefore, the granting of this Special Use Permit is reasonable in light of the foregoing.” Following the adoption of the resolution granting the special use permit for operation of the sanitary landfill, the plaintiff landowners filed this action in district court pursuant to K.S.A. 12-712 to determine the validity and reasonableness of the Board’s resolution granting the special use permit. The petition filed by the plaintiffs was essentially a suit in equity for injunctive and declaratory relief. At the outset, a temporary restraining order was issued which was subsequently modified at the time a temporary injunction was issued. In addition, the plaintiffs filed a motion to amend their petition to add new causes of action. This motion was filed one month prior to the set trial date and one week prior to the discovery deadline. This motion was denied. These matters will be discussed later in the opinion. The case was tried to the court and, after four days of trial, the case was taken under advisement. Thereafter, the trial court rendered its decision adopting certain suggested findings of fact and conclusions of law submitted by the city with certain modifications, and denying the plaintiff s petition for relief. The trial court entered judgment in favor of the defendant city, holding that the decision of the Board of City Commissioners granting the special use permit was not arbitrary or capricious but in fact was based upon substantial competent evidence and was reasonable. In arriving at its decision, the district court first considered the scope of judicial review. The court noted the basic principles of law to be applied in reviewing a decision of the governing body of a city in a zoning or special use permit case. These rules are stated in Combined Investment Co. v. Board of Butler County Comm’rs, 227 Kan. 17, 28, 605 P.2d 533 (1980), as follows: “(1) The local zoning authority, and not the court, has the right to prescribe, change or refuse to change, zoning. “(2) The district court’s power is limited to determining “(a) the lawfulness of the action taken, and “(b) the reasonableness of such action. “(3) There is a presumption that the zoning authority acted reasonably. “(4) The landowner has the burden of proving unreasonableness by a preponderance of the evidence. “(5) A court may not substitute its judgment for that of the administrative body, and should not declare the action unreasonable unless clearly compelled to do so by the evidence. “(6) Action is unreasonable when it is so arbitrary that it can be said it was taken without regard to the benefit or harm involved to the community at large, including all interested parties, and was so wide of the mark that its unreasonableness lies outside the realm of fair debate. “(7) Whether action is reasonable or not is a question of law, to be determined upon the basis of the facts which were presented to the zoning authority. “(8) An appellate court must make the same review of the zoning authority’s action as did the district court.” These rules were more recently restated in Taco Bell v. City of Mission, 234 Kan. 879, 885-86, 678 P.2d 133 (1984). The district court, in determining the issue of reasonableness, observed.that the Board of City Commissioners had considered the factors which had been established for the granting of special use permits. These factors are set forth in the Board’s finding of fact No. 24 noted above. The district court then concluded that the decision of the Board granting the special use permit was lawful, reasonable and not arbitrary or capricious. The plaintiffs appealed, and the appeal was transferred to the Supreme Court for determination. The plaintiffs raise three points on this appeal. The primary point is that the trial court erred in finding that the action of the Board in granting the special use permit to BFI for the operation of a sanitary landfill in a residential zoned area was lawful and reasonable.The scope of judicial review in matters involving special use permits is set forth above. We have considered the entire record in the case and have concluded that there is substantial competent evidence to support the district court’s findings of fact and conclusions of law; that the district court properly considered the pertinent factors for determining the reasonableness of the city’s action; and that the trial court did not err in determining that the decision of the Board of City Commissioners to grant the special use permit for the landfill was lawful and reasonable. The plaintiffs next maintain that the trial judge erred in dissolving a temporary restraining order previously entered by another judge. They contend that injunctive relief was necessary to protect the present and future property rights of the plaintiffs. We find no error in this regard. At the outset of the case on application of plaintiffs, a temporary restraining order was granted on March 31, 1983, restraining the city from entering into any lease agreement with the owners for use of city property adjacent to the landfill tract. This temporary restraining order was later modified after a hearing on a motion for a temporary restraining order on April 13, 1983. At that time, the district judge, who ultimately handled the trial of the case on the merits, issued a temporary injunction prohibiting certain physical acts upon the subject property. The effect of the judge’s order was to maintain the status quo as far as any changes in the physical use of the property were concerned until the case was finally determined on the merits. We cannot say that the trial court abused its discretion in modifying the previously issued restraining order under the circumstances. The final issue raised by the plaintiffs is that the trial court abused its discretion by denying plaintiffs’ motion to amend their petition. Simply stated, the plaintiffs sought to enlarge the issues in the case in order to raise constitutional issues, certifying class status for the plaintiffs, and permitting the plaintiffs to have a jury trial to determine whetheY they were entitled to damages in excess of one million dollars. We hold that the trial court did not abuse its discretion in denying the motion to amend. This motion was made only one month prior to the set trial date and one week prior to the expiration of the discovery deadline. At that point, a period of ten months had elapsed since the case was filed in which there had been numerous preliminary hearings, discovery, and pretrial conferences. We find no abuse of discretion by the trial court. We wish to emphasize, however, that this holding does not preclude the plaintiffs from seeking relief from the district court at some future time. As noted above, the city, in granting the special use permit for the landfill, conditioned the granting of the permit on stated conditions precedent and conditions subsequent in order to protect the rights of the landowners. If those requirements are not properly complied with or if the plaintiffs, as adjacent landowners, are subjected to intolerable conditions on the landfill property which would constitute a nuisance, then the plaintiffs may seek appropriate relief in the district court. For the reasons set forth above, the judgment of the district court is affirmed.	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The opinion of the court was delivered by McFarland, J.: This is an interlocutory appeal taken by Jimmy Razook, the owner of certain oil and gas leases, from the district court’s order instructing the appraisers in an original eminent domain proceeding instituted by John Kemp, Secretary of Transportation of the State of Kansas. Jimmy Razook owns a number of oil leases on contiguous tracts. Mr. Razook is utilizing waterflood procedures to recover oil from the tracts. The leases are not unitized. Mr. Razook contends the partial taking of the one tract constitutes an actual or constructive taking of the other tracts as the taking damages his waterflood operation. On December 3, 1982, the district court, in this original eminent domain proceeding, entered its order directing the appraisers inter alia that in determining the before and after value of the tract through which the easement passes, they should consider only the tract involved without regard to the contribution of adjoining oil and gas leases. On December 16, 1982, the appraisers filed their report. On January 12, 1983, Mr. Razook appealed the award of appraisers and said appeal is now pending in the Butler County District Court (Case No. 83 C 22). Also presently pending in Butler County District Court is an inverse condemnation action brought by Mr. Razook against the Secretary of Transportation for damages to his leases on the other tracts arising from the taking of the easement on the one tract (Case No. 82 C 635). On September 20, 1983, the district court entered the following order in the original condemnation proceeding (82 C 489): “ORDER “Now on this 20 day of September, 1983, this matter comes on for hearing upon the application of JIMMY RAZOOK, the Defendant herein, for an Order of the Court permitting an appeal to he taken from the Order entered herein on the 3rd day of December, 1982, attached hereto and incorporated herein. “The Court, after hearing evidence, examining depositions and files herein, and being otherwise advised in the premises, finds as follows: “1. That the Order entered herein on the 3rd day of December, 1982, is not a final order and as such is not otherwise appealable to the Court of Appeals under K.S.A. 60-2102. “2. That the Court is of the opinion that such Order involves a controlling question of law as to which there is substantial grounds for difference of opinion and that an immediate appeal from the Order may materially advance the ultimate termination of the litigation. “3. It is also found that such Order affects the rights of said Jimmy Razook and will be a controlling question in the following actions on file in Butler County, Kansas: JOHN B. KEMP, Secretary of Transportation of the State of Kansas, Plaintiff, v. BARBARA LEE BROWN, et al, Defendants. Case No. 83C22 JIMMY RAZOOK, Plaintiff, v. JOHN B. KEMP, Secretary of Transportation of the State of Kansas, Defendant. Case No. 82C635 and that proceedings in this case and Cases No. 82C635 and 83C[22] should be stayed. “IT IS SO ORDERED, DECREED AND ADJUDGED in accordance with the findings hereinabove made.” On September 28, 1983, Mr. Razook filed an application with the Court of Appeals pursuant to K.S.A. 60-2102(b) to take an interlocutory appeal, stating therein: “1. That this Application is made pursuant to the Order entered by the Honorable J. Patrick Brazil on the 20th day of September, 1983, a copy of which Order is attached hereto and by this reference made a part of this Application as if fully set out herein.” On its face, then, the application to take an interlocutory appeal was filed within the statutory ten-day period set forth in K.S.A. 60-2102(b). The application was transferred to this court prior to being ruled upon by the Court of Appeals. Permission to take the interlocutory appeal was granted by this court. K.S.A. 60-2102(b) provides: “When a district judge or associate district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, said judge shall so state in writing in such order. The court of appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten (10) days after the entry of the order under such terms and conditions as the supreme court may fix by rule. Application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or associate district judge or an appellate court or a judge thereof shall so order.” (Emphasis supplied.) Supreme Court Rule 4.01 (232 Kan. cvii) states in pertinent part: “When an appeal is sought under the provisions of Sec. 60-2102(b) an application for permission to take such an appeal shall be served within ten (10) days after the entry of the order from which an appeal is sought to be taken. The application shall be filed with the clerk of the appellate courts and docketed as a regular appeal to the court of appeals. “The application shall: (a) state the relevant facts, including the nature and a brief history of the proceedings in the district court with all the important dates, and (b) have annexed thereto a copy of the order from which the appeal is sought to be taken and in which the judge of the district court makes the findings required by Sec. 60-2102(b) . . . (Emphasis supplied.) In the case before us, appellate review is being sought of the December 3, 1982, order of the district court. The order of September 20, 1983, contains only the statutory findings necessary to make the December 3, 1982, order a candidate for an interlocutory appeal. K.S.A. 60-2102(b) does not grant an absolute right to an interlocutory appeal in a civil case. Rather, where a district judge or associate district judge makes an order not otherwise appeal-able and states in such order the statutorily required findings, permission to take the interlocutory appeal may be sought from the appellate court within ten days from the making of such order. In the case before us over nine months elapsed between the making of the now complained-of order and the making of the order containing the statutory findings necessary to an interlocutory review of the order itself. The net effect is that the application to take an interlocutory appeal of an order was filed almost ten months after the complained-of order was entered. Such is not permitted by K.S.A. 60-2102(b). The application must be filed within ten days after entry of the order for which review is sought and as a condition to the filing of the application, the order must contain the statutory findings. Ten days after the entry of the order herein on December 3, 1982, the time for seeking an interlocutory appeal thereof expired and the same could not be extended by subsequently requesting the court to make the statutory findings requisite to an interlocutory appeal. We conclude permission to take the interlocutory appeal herein was improvidently granted as the court lacked jurisdiction to grant the application. Before concluding this opinion it should be noted there are other jurisdictional grounds on which this interlocutory appeal might be successfully challenged. These include the fact this is an original proceeding in eminent domain. As noted in State Highway Commission v. Bullard, 208 Kan. 558, 493 P.2d 196 (1972): “Proceedings in eminent domain instituted pursuant to K.S.A. 26-501, et seq., as amended, are administrative and inquisitional in character. Prior to the taking of an appeal from the award of the appraisers pursuant to K.S.A. 1971 Supp. 26-508, the code of civil procedure has no application since the special statutory procedures are fully prescribed. As such, the eminent domain proceeding is not a proper forum for litigating the right to exercise the power of eminent domain, or to determine the extent of that right. (Following Urban Renewal Agency v. Decker, 197 Kan. 157, 415 P.2d 373.)” Syl. ¶ 1. See K.S.A. 26-504. Additionally, determination of this interlocutory appeal would in no way “materially advance the ultimate termination of the litigation” (K.S.A. 60-2102[b]) as an original proceeding in eminent domain cannot truly be classed as litigation and, in any event, there is no further “action” to be had in this proceeding. At most, any opinion rendered herein would be of value only as a sort of advisory opinion which might advance the termination of litigation in the inverse condemnation action and the appeal from the appraisers’ award (cases 82 C 635 and 83 C 22, respectively) now pending in the Butler County District Court, but not before us. The interlocutory appeal is dismissed.	[ -12, -22, -7, -100, -120, 64, 58, 25, 64, -93, 116, 87, 45, -54, 1, 121, -13, 61, 101, 121, -42, -74, 67, -128, -106, -13, -109, -51, -104, -34, -26, -58, 72, 32, -61, 21, 70, -126, 77, 92, -114, 7, -103, -19, -43, 8, 52, 107, 48, 75, 49, -83, -13, 41, 25, -29, -55, 44, -101, 60, 81, -40, -85, -97, 95, 18, 1, 4, -104, -57, 112, 79, -112, 49, 8, -24, 115, -90, -106, -12, 15, -101, 40, 38, 99, 33, 60, -17, 104, -104, 15, -38, -115, -91, -109, 24, -32, 96, -106, -99, 125, 0, 71, -2, -22, 5, -37, 124, -121, -113, -44, -79, 11, 121, -104, 27, -21, -125, 48, 113, -55, -62, 92, 71, 50, 31, -106, -80 ]
The opinion of the court was delivered by Prager, J.: This case is before the court on a petition for review of a decision of the Court of Appeals in Luttrell v. United Telephone System, Inc., 9 Kan. App. 2d 620, 683 P.2d 1292 (1984). The facts are fully set forth in the opinion of the Court of Appeals and need not be repeated here. The trial court sustained the motion of the defendant to dismiss for failure to state a claim upon which relief may be granted. The Court of Appeals reversed and remanded the case for further proceeding. We granted review. The Court of Appeals fully discussed the facts and applicable law. We have carefully examined the record, the briefs of the parties, the reported cases in Kansas and other jurisdictions, and the commentary on the subject. We find no reason to disturb the judgment of the Court of Appeals. The issue presented is strictly one of law and, simply stated, is whether interoffice communications between supervisory employees of a corporation, acting within the scope and course of their employment, regarding the work of another employee of the corporation, constitute publications to a third person sufficient for a defamation action. The opinion of Judge Parks points out there is considerable division of authority concerning this issue. The various cases supporting each position are cited. The opinion points out that Professor Prosser favors the view that such communication constitutes a publication and rejects those cases that hold otherwise as confusing publication with privilege. Prosser, Law of Torts § 113, p.767 n. 70 (4th ed. 1971). In addition, we note that Restatement (Second) of Torts § 577, comment i (1977), adopts the position that a communication within the scope of his employment by one agent to another agent of the same principal is a publication not only by the first agent but also by the principal and this is true whether the principal is an individual, a partnership or a corporation. We adopt the opinion of the Court of Appeals. The judgment of the district court is reversed and the case is remanded to the trial court for further proceedings. The judgment of the Court of Appeals is affirmed.	[ -72, -4, -3, -99, 10, 98, 50, -74, 97, -27, 39, 83, 45, -6, 13, 123, 119, 45, -47, 107, 92, -74, 71, -127, -42, -13, -13, -36, -77, 94, -26, -36, 77, 48, -118, -59, 102, 64, -63, 20, -62, 7, -87, -5, -39, 68, 52, 123, 80, 75, 81, -49, -13, 104, 24, -61, -88, 42, -22, -95, 18, -79, -102, 15, 125, 18, 35, 5, -40, 7, 88, 46, -112, 57, 1, -24, 115, -90, 6, -12, 107, -7, 9, 34, 98, 34, 20, -93, -52, -104, 46, 92, -97, -26, -72, 24, 11, 73, -74, -99, 116, 4, -125, -2, -30, 28, 31, 124, 11, -113, -110, -77, 79, 88, 30, -49, -21, 67, 0, 68, -54, -94, 92, 67, 51, -101, -2, -76 ]
The opinion of the court was delivered by Miller, J.: This is an interlocutory appeal by the State from an order of the trial court, entered immediately prior to the scheduled commencement of trial, suppressing the results of a blood alcohol test. The Court of Appeals, in a split decision, affirmed. State v. Wanttaja, 9 Kan. App. 2d 441, 680 P.2d 922 (1984). The facts are fully set out in the Court of Appeals opinion, and we will not repeat them fully. Defendant was arrested and charged with driving while under the influence of alcohol, K.S.A. 1982 Supp. 8-1567. He was given a blood alcohol test. He asked for a copy of the results, but never received it. His attorney asked to inspect the arrest records and the prosecutor granted him permission to review the records, which were kept at the Hutchinson Police Department. Defense counsel went to the department office, asked for the “defendant’s arrest reports,” and was shown a copy of the arresting officer’s report. He did not ask to see, and was not shown, the results of the blood alcohol test. On the morning of trial, defense counsel moved to suppress the test results because they had not been delivered to the defendant as required by K.S.A. 8-1002. The trial court sustained the motion. The majority of the Court of Appeals panel held that, under the cited statute, the State has a duty to deliver the results of a blood alcohol test to the defendant upon request. Admittedly, the State failed in that duty. Since suppression is one of the sanctions authorized by statute for failure to make discovery, K.S.A. 22-3212(7), the panel held that the trial court was authorized to suppress the evidence in the exercise of its discretion; and the panel could not say that the trial court abused its discretion. With the final conclusion of the panel, we disagree. Chief Judge Foth, in. a concurring and dissenting opinion, 9 Kan. App. 2d at 445, could not agree that the sanction of suppression represents a proper exercise of judicial discretion under the circumstances. In support of his position, he discusses the general guidelines for discretion and discovery outlined in our opinion in State v. Jones, 209 Kan. 526, 498 P.2d 65 (1972), and Jones’ citation with approval in later cases. He then emphasizes three factors in this case which he viewed as significant: “1. Both defendant and his attorney knew a breath test had been administered, so there was no surprise on that score. Although the exact results were unknown, counsel surely surmised that defendant had tested over 0.10%. “2. When defense counsel asked to see the police reports, permission was freely given. Under Reno County’s peculiar manner of operation it was necessary for defense counsel to go to the Police Department to see the reports. There, by an apparent error on the part of clerical personnel, defendant’s file contained arrest reports (including the field sobriety test report) but no breath test. Counsel never specifically asked for the breath test results, and so far as the prosecutor knew he had divulged everything in the State’s possession. There is no claim of bad faith or that the prosecutor wouldn’t have cured the clerical oversight had it been known to him. Thus there was no willful refusal to disclose, as there was in all those cases, criminal and civil, where ultimate sanctions have been approved. In a sense, there was no real request to see the breath test results. “3. Defense counsel at that point knew there had been a breath test, knew he didn’t have the test results, and also knew they would be made available on request. We were advised at oral argument that, as a matter of strategy, he chose instead to wait several months, and then make the oral motion to suppress on the morning of trial. This was surely ‘the development of a mere ploy’ and not a ‘good faith request for help,’ which Jones and Walker tell us are to be judicial benchmarks.” 9 Kan. App. 2d at 448. We agree. There was no surprise; defendant and his attorney were both aware of the test. Counsel never specifically asked for the test results when he went to the police department. He received what he asked for — the “arrest reports.” The prosecutor had authorized defense counsel to view all of the records and did not know that counsel had not seen the B.A.T. results. Defense counsel did not make a formal request for discovery, and did not inform the prosecutor that the report was not disclosed. The delay of several months, and the making of a motion to suppress on the day of trial as “trial strategy,” cannot be regarded as demonstrating good faith. We agree with the rationale and conclusions of Chief Judge Foth. K.S.A. 8-1002 requires the State to deliver a copy of the test results upon request. The mere failure of the officers to do so, however, does not justify the suppression ordered by the trial court. Likewise, the failure of a clerk in the police department to disclose the test results to counsel, in the absence of a specific request for them, likewise does not justify suppression. The prosecution was unaware of the failure to disclose and was purposely not made aware of that fact until the morning of trial. There is no suggestion that the trial court was attempting to remedy a recurring problem or that the prosecution intentionally failed to disclose the report. Under the circumstances, we hold that no sanctions were justified. The motion to suppress should have been overruled. The case should either have proceeded to trial, or, if requested, a continuance should have been granted to the defendant to enable him to prepare to meet the issue. We have not overlooked the question of appellate jurisdiction; that issue was correctly decided by the Court of Appeals. See State v. Newman, 235 Kan. 29, 680 P.2d 257 (1984), and State v. Galloway, 235 Kan. 70, 680 P.2d 268 (1984). The judgment of the Court of Appeals is reversed; the judgment of the district court is reversed; and the case is remanded to the district court with directions to proceed with trial.	[ -16, -18, -3, -100, 43, 64, 50, -104, 65, -65, 116, 83, -83, -46, 5, 107, 26, 125, 116, 105, -50, -74, 87, -63, -34, -13, -16, -44, -77, -53, -28, -4, 77, -96, -118, -43, 102, -56, -109, -46, -114, 6, -87, -44, 80, -110, 52, 43, 51, 15, -79, 15, -29, 44, 25, -61, -19, 44, -37, -68, 64, -16, -103, 29, -33, 2, -77, 50, -68, -124, -40, 62, -104, 49, 1, -20, -5, -74, -126, -76, 111, -103, -83, 102, 99, 49, 28, -18, 36, -83, 62, 61, -99, -89, -102, 73, 105, -123, -106, -67, 117, 18, 11, -4, -29, 84, 95, 124, 2, -49, -96, -101, 75, 53, 2, 91, -25, -95, 16, 113, -59, -16, 84, -41, 83, 27, -18, -108 ]
The opinion of the court was delivered by McFarland, J.: Following pleas of nolo contendere, defendant Taber D. Adkins was found guilty of aggravated kidnapping (K.S.A. 21-3421); aggravated sodomy (K.S.A. 21-3506); and attempted first-degree murder (K.S.A. 21-3401, 21-3301). The crimes occurred on May 31, 1983, in Junction City. The victim was a six-year-old girl. In his direct appeal, defendant contends: (1) the trial court abused its discretion in refusing to commit him to a state mental institution for treatment pursuant to K.S.A. 22-3430 in lieu of imprisonment; and (2) K.S.A. 1983 Supp. 21-4608(1) is unconstitutional as it grants unlimited power to a trial judge to impose consecutive sentences. We shall first consider the claim of abuse of trial court discretion in refusing defendant’s request to be committed to a state mental institution in lieu of sentencing. K.S.A. 22-3430 provides: “If the report of the examination authorized by the preceding section [K.S.A. 22-3429] shows that the defendant is in need of psychiatric care and treatment and that such treatment may materially aid in his rehabilitation and that the defendant and society is not likely to be endangered by permitting the defendant to receive such psychiatric care and treatment, in lieu of confinement or imprisonment, the trial judge shall have power to commit such defendant to any state or county institution provided for the reception, care, treatment and maintenance of mentally ill persons. The court may direct that the defendant be detained in such institution until further order of the court or until the defendant is discharged under K.S.A. 22-3431. No period of detention under this section shall exceed the maximum term provided by law for the crime of which the defendant has been convicted. The trial judge shall, at the time of such commitment, make an order imposing liability upon the defendant, or such person or persons responsible for the support of the defendant, or upon the county or the state, as may be proper in such case, for the cost of admission, care and discharge of such defendant. “The defendant may appeal from any order of commitment made pursuant to this section in the same manner and with like effect as if sentence to a jail, or to the custody of the director of penal institutions had been imposed in this case.” Defendant filed a notice of intent to rely on the defense of insanity pursuant to K.S.A. 22-3219. In conjunction with the insanity defense, defendant was examined by three psychiatrists and one psychologist. In essence, each found defendant was legally sane at the time of the commission of the offenses and that his unlawful behavior was alcohol related as opposed to being the result of any major underlying mental illness. The experts included considerable material'relative to defendant’s background and current psychological condition in their respective reports. At the subsequent sentencing, the psychologist testified he felt defendant would benefit from long-term psychiatric treatment in the Larned State Security Hospital. The parties stipulated that the psychiatric and psychological reports prepared relative to the aborted attempt at an insanity defense should be used by the court in lieu of the psychiatric report of examination specified in K.S.A. 22-3429 in considering defendant’s request for hospitalization in lieu of sentencing pursuant to K.S.A. 22-3430. In the rather amorphous argument offered in support of defendant’s contention that the trial court abused its discretion in this regard, the following themes predominate: (1) It is not fair to imprison a man for crimes he cannot remember committing, notwithstanding the fact consumption of alcohol is the sole cause of the memory loss; (2) the nature of the crimes is so heinous that, per se, psychiatric treatment should be imposed rather than imprisonment; (3) the trial court should have disregarded the stipulated-to psychiatric evidence and original psychological report and considered only the psychologist’s testimony at the sentencing hearing; and (4) defendant’s request to be committed was reasonable and its denial did not benefit anyone. It should be emphasized K.S.A. 22-3430 grants authority to the trial judge to order commitment in lieu of imprisonment only where the required report shows: “[T]he defendant is in need of psychiatric care and treatment and that such treatment may materially aid in his rehabilitation and that the defendant and society is not likely to be endangered by permitting the defendant to receive such psychiatric care and treatment . . . .” The trial judge is not required to order commitment where the report is in compliance with the statute. The statute permits an appe'al by a defendant committed thereunder but does not authorize an appeal from a refusal to order a commitment. The statute does not require a trial judge to make any findings in invoking or refusing to invoke the statute. K.S.A. 22-3430, then, is a conditional grant of authority to a trial judge. It grants no right of entitlement to a defendant to be committed as opposed to imprisoned. As previously noted, the parties stipulated that the mass of psychiatric and psychological evidence before the court should be used by the court as a substitute for the single report by an institution contemplated by K.S.A. 22-3429. On appeal defendant claims the court erred in considering the all of such evidence as opposed to a portion thereof favorable to his position. This argument is wholly lacking in merit. We conclude the refusal to commit under K.S.A. 22-3430 is wholly a matter of trial court discretion and is not reviewable on appeal. We note that the report of the Kansas Reception and Diagnostic Center prepared subsequent to the sentencing herein does not find any serious mental disorder. For his second issue defendant contends K.S.A. 1983 Supp. 21-4608(1) is unconstitutional as it grants unlimited power to a trial judge to impose consecutive sentences. The sentences imposed were as follows: aggravated sodomy — ten years to life; aggravated kidnapping — life; attempted first-degree murder — ten years to life. The aggravated kidnapping and aggravated sodomy sentences were ordered to be served concurrently. The attempted murder sentence is to be served consecutively to the other two sentences. K.S.A. 1983 Supp. 21-4608(1) provides: “When separate sentences of imprisonment for different crimes are imposed on a defendant on the same date, including sentences for crimes for which suspended sentences or probation have been revoked, such sentences shall run concurrently or consecutively as the court directs.” Specifically defendant contends: “[T]his section [K.S.A. 1983 Supp. 21-4608(1)] is unconstitutional on its face as violative of the principle of substantive due process which is guaranteed the defendant and others similarly situated under the 5th and 14th Amendments to the United States Constitution and allied portions of the Kansas Constitution and Bill of Rights. Specifically, [defendant] claims that the power granted as to the judge to run sentences consecutively amounts to arbitrary power in the judge, since nowhere in the Kansas Code of Criminal Law regarding sentencing or anywhere else that defendant can find is the power given in K.S.A. 21-4608(1) checked in any way by any criteria or guidance as to when consecutive sentences should be given or as to what factors should be taken into account to determine whether sentences should be ordered concurrent or consecutive.” Defendant’s position on this issue is predicated upon the proposition that the sentencing criteria set forth in K.S.A. 21-4606 are inapplicable to a trial court’s consideration of whether the terms are to run concurrently or consecutively. K.S.A. 21-4606 provides: “(1) In sentencing a person to prison, the court, having regard to the nature and circumstances of the crime and the history, character and condition of the defendant, shall fix the lowest minimum term which, in the opinion of said court, is consistent with the public safety, the needs of the defendant, and the seriousness of the defendant’s crime. “(2) The following factors, while not controlling, shall be considered by the court in fixing the minimum term of imprisonment; “(a) The defendant’s history of prior criminal activity; “(b) The extent of the harm caused by the defendant’s criminal conduct; “(c) Whether the defendant intended that his criminal conduct would cause or threaten serious harm; “(d) The degree of the defendant’s provocation; “(e) Whether there were substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense; “(f) Whether the victim of the defendant’s criminal conduct induced or facilitated its commission; “(g) Whether the defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained.” In State v. Buckner, 223 Kan. 138, 574 P.2d 918 (1977), the defendant was convicted of three counts of aggravated robbery and sentenced (utilizing enhanced sentencing) to three consec utive terms of 30 years to life. One of the issues on appeal was a claim the sentences were excessive. This court stated: “We are not unmindful of the longstanding rule in Kansas, as held repeatedly by this court, that a sentence which lies within the statutory limits as set forth by the legislature will not be disturbed on appeal in the absence of special circumstances showing an abuse of discretion. (State v. Steward, 219 Kan. 256, 547 P.2d 773.) We adhere to that rule and do not intend to overrule the numerous previous decision^ which have so held. ‘The discretion lodged within a court is not a boundless, but a judicial, discretion. It is a discretion limited to sound judgment to be exercised, not arbitrarily, but with regard to what is right and equitable under the circumstances and the law.’ (State v. Collins, 195 Kan. 695, 700, 408 P.2d 639.) “This court, as well as others throughout the country, has become increasingly concerned with the disparity of sentences imposed by the various trial courts for comparable offenses .... This disparity exists not only among various states, but also judicial districts within the state and even among various judges within the same district. One of the recommended standards of the American Bar Association is: ‘2.3(c) The sentencing judge should be required in every case to state his reasons for selecting the particular sentence imposed. Normally this should be done for the record . . . “The legislature has dictated, in K.S.A. 21-4606, certain minimum factors to be considered in imposing sentence. Although the statute may not require it, we feel that when the sentence exceeds the minimum, it is better practice for the trial court to make, as part of the record, a detailed statement of the facts and factors considered by the court in imposing sentence. Such a record would be of great assistance to the appellate courts in determining whether the trial court has abused its discretion. ‘Absent a statement of reasons, the record will not reveal whether the legislatively mandated factors have been considered.’ “ 223 Kan. at 150-51. Buckner’s aggregate sentences contained three elements— statutory terms for the crimes of which he was convicted plus enhancement under the Habitual Criminal Act (21-4504) plus the running of the terms consecutively (21-4608[1]). In reviewing the total sentences to determine whether the trial court had abused its discretion, no distinction was made among the various elements contained in the aggregate sentences. The court concluded: “Under the particular facts and circumstances of this case, the imposition of three thirty-year-to-life consecutive sentences, though within the limits of the statutes, constituted an abuse of judicial discretion and such sentence must be set aside and the case remanded for resentencing in accordance with the directions in the opinion.” 223 Kan. 138, Syl. ¶ 8. In State v. Goering, 225 Kan. 755, 594 P.2d 194 (1979), defendant claimed imposition of six consecutive sentences constituted an abuse of discretion. This court cited its previous holdings in State v. Buckner, 223 Kan. 138, and held: “A sentence which is within the statutory limits as set forth by the legislature will not be disturbed on appeal in the absence of special circumstances showing an abuse of discretion.” Syl. ¶ 8. “The discretion in imposing sentences which is lodged with a court is not a boundless, but a judicial, discretion. It is a discretion limited to sound judgment to be exercised, not arbitrarily, but with regard to what is right and equitable under the circumstances and the law.” Syl. ¶ 9. “Under the particular facts and circumstances of this case, the imposition of six consecutive sentences upon the defendant, who was the driver of the getaway car, and who had no prior criminal record, though within the limits of the statutes, constituted an abuse of judicial discretion, and such sentence is set aside, and the case is remanded with directions that the defendant be resentenced.” Syl. ¶ 10. In State v. Case, 228 Kan. 733, 620 P.2d 821 (1980), this court stated: “Finally, appellant argues the court committed error in its sentencing. The State asked for the imposition of the habitual criminal act based upon four prior felony convictions. Appellant contends the court did not follow the requirements ofK.S.A. 21-4606 which provides criteria for fixing minimum terms. The record does not support the argument as the court fully complied with the statute. Appellant was sentenced to life in prison for each murder conviction, 30 years to life on the aggravated arson conviction, 10 to 30 years for aggravated burglary and one year for misdemeanor theft. The sentences are to run consecutively. In State v. Buckner, 223 Kan. 138, Syl. 116, 574 P.2d 918 (1977), this court held: “ ‘When a sentence is fixed by the trial court, within permissible limits of the applicable statutes, the sentence is not erroneous and in the absence of special circumstances showing an abuse of judicial discretion will not be disturbed on appeal.’ The sentences imposed, while lengthy, are within the limits set by the statutes and considering the heinous nature and the severity of the crimes, we cannot say the trial court abused its discretion.” 228 Kan. at 739-40. The sentencing criteria set forth in K.S.A. 21-4606 apply to a trial court’s determination of the sentence to be imposed and the sentence includes whether multiple terms of imprisonment are to be served consecutively or concurrently. Having concluded the basic contention from which defendant’s constitutional challenge to K.S.A. 1983 Supp. 21-4608(1) arises is itself erroneous, we do not reach any constitutional issue. It is clear from the record the trial court considered the sentencing criteria in imposing the sentences herein. The facts involved in the crimes are heinous. Defendant took a six-year-old neighbor girl to his apartment. While there she was raped or sodomized (her appalling injuries precluded exact medical determination as to which crime or both had been committed). The victim was bludgeoned about the head causing severe head injuries. She was then placed in a locked closet within the padlocked apartment and left to die. She was discovered by police and skillful medical attention including multiple surgical procedures saved her life. We have reviewed the record and find no abuse of discretion in the sentences imposed herein. Th’e judgment is affirmed. Prager, J., concurs in the result.	[ -112, -24, -11, -33, 27, 97, 42, 24, 18, -13, -28, 83, -87, -34, 1, 123, 26, 127, 84, 121, 81, -73, 55, 97, -78, -5, -39, -41, -77, 91, -12, -12, 72, 96, -54, 117, 102, -54, -47, 92, -114, 7, -87, -16, -62, -125, 46, 123, 10, 14, 49, 30, -29, 42, 26, -62, 72, 44, 91, 45, -120, -79, -39, 29, 77, 4, -93, -92, -102, -121, 112, 62, -104, -71, 0, -24, 115, -122, -126, -12, 109, -39, 12, 102, 98, 33, 28, -17, -32, -119, 62, 31, -99, -25, -103, 88, 96, 13, -74, -35, 119, 22, 15, 122, -17, 6, 117, 108, -128, -49, -76, -111, -51, 57, -62, -69, -21, 37, 33, 113, -33, -26, 92, -106, 121, -109, -65, -12 ]
The opinion of the court was delivered by Herd, J.; This is a suit against Wolfenbarger and McCulley, P.A., for the negligent design of the ventilation system of the clinical science and pathology building at Kansas State University (KSU), Manhattan. The State of Kansas desired to construct a veterinary medicine complex at KSU. The work was divided into three phases. Phase I was the comparative medical science building. Phase II was the teaching building. Phase III was the clinical science and pathology building. On August 3, 1972, the State of Kansas entered into an agreement with appellant, the architectural firm of Wolfenbarger and McCulley, P.A., to design the clinical science and pathology building. Included in this building were classrooms and lecture halls. Also within this building surgeries and autopsies were performed on diseased animals; due to the presence of disease and animals the building codes required large volumes of circulating fresh air. Pursuant to the contract between the State and appellant, appellant retained the consulting services of a structural and a mechanical engineer. The mechanical engineering firm of Latimer, Miller, Sommers and Wallace, P.A., provided the design for the building. They prepared the design and specifications for both the mechanical and electrical portion of the project, which included heating, air conditioning, power supply and ventilation. The ventilation system was designed to pull in outside air through 13 louvers, large metal vents, which were built into the walls of the second or top floor of the building. The air moved through the inside of the building through an area called the “ceiling plenum.” The ceiling plenum was directly above the ceilings of the second floor offices and below the exterior roof. The air moved along the ceiling plenum to air handling units within the building. The air handling units would then heat or cool the air as required. As this occurred, the old air would be exhausted. Pursuant to the mechanical engineers’ specifications, the louvers were to have a 40% free air space. This would require the louvers to close 60% of the 8 by 12 foot space through which the air passed. 12 of the 13 louvers were installed with only 20% free air space. Once the plans and specifications for the building were drawn up, the State approved them and let them out for bid. The general contracting firm of Coonrod and Waltz was awarded the contract. The building was completed in late 1978. In December 1978 and January 1979, it was discovered that during each snowfall a large quantity of snow was ingested into the building through the louvers. The snow formed drifts a foot deep above the offices and classrooms. When the snow melted, it damaged the raw batting insulation, gypsum board, and acoustical ceiling tile, collapsing some of the ceilings. The services of Black and Veatch, consulting engineers, were retained to help the State determine the cause of the snow ingestion. The State eventually chose to correct the problem by extending the plenum air supply systems onto the roof of the building into eight snow chambers resembling huge dog houses and measuring 8 feet in width, 12 feet in height and 4 feet long at the base. Filters were installed behind the air intakes and snow collected and ran off the roof harmlessly. The State then brought this action against the appellant and the mechanical engineer for negligence and breach of contract. Prior to trial, settlement was reached with the engineer and that portion of the case was dismissed. The State proceeded to trial on the negligence claim against the architect for the cost of building the eight snow chambers, $53,246; the cost of the expert’s report to determine the cause of the snow ingestion problem, $4,385; and the appearance damage to the veterinary medicine complex from having the snow chambers extend onto the roof of the pathology building, $20,000. At trial, the State’s witnesses testified the architect was aware of the use of the ceiling plenum for air intake, and of the location of the air intakes. It incorporated the intakes into the overall building plan and should have known snow would be drawn in through the louvers. The witnesses also testified appellant specified a variety of building materials which were not water resistant to be included in the plenum, thus permitting the melted snow to cause substantial damage in the ceiling plenum and allowing it to leak through the ceiling. The appellant defends claiming the louvers were not constructed pursuant to its design, thereby relieving it of responsibility for the damage since the State retained the duty of inspection and supervision of the contract. The State’s expert testified the amount of free air space allowed by the louvers was irrelevant to the ingestion of snow. The State’s evidence also showed the one louver which did have the correct free air space ingested as much snow as the other louvers. The jury returned a verdict , for the State for $57,632 with comparative fault as follows: one-third to the State; one-third to the consulting engineers; and one-third to the appellant. No fault was assessed to the contractor. Following the entry of judgment, appellant filed a motion for judgment notwithstanding the verdict and for new trial, both motions were denied. The architect appeals. Appellant first argues the failure of the contractor to build the louvers in compliance with the plans and specifications prepared by the mechanical engineers relieves the appellant of any liability. In support, appellant cites several cases which consistently hold that a contractor’s failure to comply with the architect’s plans, which failure resulted in a negligent design causing injury, eliminates any liability on the part of the architect. See Wheat St. Two v. James C. Wise, 132 Ga. App. 548, 208 S.E.2d 359 (1974); Bayne v. Everham, 197 Mich. 181, 163 N.W. 1002 (1917); and Lake v. McElfatrick et al, 139 N.Y. 349, 34 N.E. 922 (1893). These cases are all easily distinguishable from the instant case. In each of the cases cited by appellant, the deviation from the architect’s design was found to be the proximate cause of the injury or damage. In the instant case there is evidence the contractor’s failure to comply with the 40% louver specification was not material to the snow ingestion problem. At trial, appellant’s expert witness, Robert Miller, P.E., testified that the deviation in the louver as constructed compared to how it was designed caused the snow ingestion problem. Appellee’s expert witness, Myron Reed, P.E., testified the deviation had no effect on the snow problem. Also in evidence was the one louver built according to the design with 40% free air space which also ingested a large quantity of snow; the Black and Veatch report which found the snow chambers would have been necessary even with a 40% louver; and evidence the 20% louvers were being used successfully after the implementation of the snow chambers. Evidence was also presented by appellee which challenged the credibility of appellant’s expert witness. We have held when a verdict is attacked on the ground it is contrary to the evidence, as appellant argues here, it is not the function of an appellate court to weigh the evidence or pass judgment on the credibility of witnesses. If the evidence with all reasonable inferences to be drawn therefrom, when considered in a light most favorable to the successful party below, will support the verdict, this court will not intervene. See Timsah v. General Motors Corp., 225 Kan. 305, Syl. ¶ 1, 591 P.2d 154 (1979). The record shows substantial competent evidence to support the verdict that the deviation from the architect’s plan was not the cause of the snow ingestion. Hence, the deviation does not relieve the architect of responsibility for its design defect. The appellant next argues it was relieved from liability for any design defects because the contract between the parties stated the State had the obligation to accept and approve all plans and construction, and the State accepted construction of louvers which did not conform to appellant’s design. Appellant further argues it did not violate the contract since it fulfilled its duty to prepare the design. The fallacy in this argument is similar to that in the first issue. There is evidence the nonconforming louvers were not the cause of the snow ingestion. Thus, the State’s acceptance of the louvers as constructed did not relieve appellant of its duty to design a building safe from snow intake. Further, it was not the duty of appellant merely to design a building, but to do so pursuant to the standard of care to which an architect is held. This standard has been described as follows: “An architect will also be held liable for damage sustained by his employer where, by reason of the architect’s breach of his duty to exercise care and skill, his plans and specifications were faulty and defective . . . .”5 Am. Jur. 2d, Architects § 23, p. 686. Appellant next argues the failure of the jury to assess any percentage of fault to the contractor was contrary to the evidence. The standard for reviewing verdicts which are alleged to be contrary to the evidence was previously stated. This court’s duty is to determine if the evidence with all reasonable inferences to be drawn therefrom, considered in the light most favorable to the successful party below, will support the verdict. See Timsah v. General Motors Corp., 225 Kan. 305, Syl. ¶ 1. Appellant cites previous cases by this court in which we have held verdicts contrary to the evidence are reversible on appeal. See In re Estate of Winters, 192 Kan. 518, 389 P.2d 818 (1964); and Lorbeer v. Weatherby, 190 Kan. 576, 376 P.2d 926 (1962). The verdict in the case at bar is not contrary to the evidence. As indicated earlier there was substantial credible evidence presented at trial upon which the jury could conclude the contractor was not liable since the snow ingesting defect was not from the contractor’s failure to conform to the design, but was due instead to a defect in the architect’s design. Appellant next contends the court’s instruction as to appellee’s claim for loss of aesthetic value was in error since no evidence was introduced as to the value of the loss. The court instructed the jury it could take into consideration damage to the aesthetic appearance of the veterinary medicine complex by the addition of the snow chambers. The appellant argues the State introduced no evidence of the amount sought for the loss of aesthetic value. Appellee argues this issue is moot since the jury made no award for loss of aesthetic value. The record shows the jury requested a breakdown of the damages sought by the State. The response from the court was: “The items of damage claimed are: 1. Cost of repair of intake design $53,246 2. The expenses in connection with determining the nature of the air intake problem $ 4,385 3. Damages to the appearance of the veterinary medicine complex $20,000 Total $77,631” The jury returned a general verdict assessing the total damages at $57,632, one dollar higher than the total of the cost of the repairs with the cost of determining the nature of the problem. We conclude the jury made an award for loss in aesthetic value in the amount of $1. We previously held: “In order for the evidence to be sufficient to warrant recovery of damages there must be some reasonable basis for computation which will enable the jury to arrive at an approximate estimate thereof.” Venable v. Import Volkswagen, Inc., 214 Kan. 43, 50, 519 P.2d 667 (1974). The State argues recovery for the repair work alone does not fully compensate the State since it does not fully restore the building to the condition it would have been in but for the negligent design. See Restatement (Second) of Torts § 903, comment A (1982). The State presented evidence at trial that it was important for each building in the veterinary medicine complex to be uniform in appearance and the need for the addition of the snow chambers affected this aesthetic goal. The State argues it should be relieved from introducing evidence of actual dollar loss since the case involves a public building. Public buildings are more difficult to value since the traditional buyer-seller standards of appraisal do not apply to them. In Kennedy v. Heat and Power Co., 103 Kan. 651, 653, 175 Pac. 977 (1918), we held: “It is frequently said that the market value of the property described at the time and place of fire is a proper measure, and this is true if the property in fact has a market value. If there be no market value, then another criterion of value must be found, and the best evidence which can be obtained must be produced to show the elements which enter into the real value.” Thus, even though a public building may be hard to appraise, a party is not relieved from the duty of providing the jury some basis for determining damage. The record reveals no evidence of the value of the loss for damaged appearance of the building which was introduced by the State. This is a failure to prove one element of damages and, hence, an instruction allowing the jury to award such damages is error. We have held a trial court must only instruct a jury on the law applicable to the theories of the case where there is evidence to support them. See State v. Haynes, 5 Kan. App. 2d 144; Syl. ¶ 2, 612 P.2d 1268, rev. denied 228 Kan. 807 (1980). Since there was no evidence to support the instruction, it should not have been given and is error. However, in light of the jury’s award of only $1, we find the error harmless. Appellant’s final argument is the jury award for the cost of construction of the ventilation system is a windfall and not within the realm of compensatory damages. Kansas has recognized that “[t]he basic principle of damages is to make a party whole by putting it back in the same position, not to grant a windfall.” Service Iron Foundry, Inc. v. M. A. Bell Co., 2 Kan. App. 2d 662, 679, 588 P.2d 463 (1978). Appellant argues if the snow chambers had been included in the original plans the State would have paid the same additional amount as it paid having them installed after the building was constructed. Appellee defends by noting the chambers would not have been accepted in the original design and were only accepted later because other methods were considered to be impossible given the existence of the building. The evidence was, therefore, controverted. The jury, however, chose to believe the appellee. There is substantial'competent evidence to support the verdict. Appellant’s argumentáis without merit. The judgment of the trial court is affirmed.	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Per Curiam: Isaac Baker and Phillip Schott entered into a written contract for the sale from Baker to Schott of a tract of land in Sedgwick county for $7000, payable as follows: $50 earnest money and $950 upon the execution and delivery of a deed; the balance, $6000, to be paid in installments of $1000 per year, the deferred payments to be evidenced by twenty-four notes for $250 each, four of which were to be payable each year for six years, “with interest at six per cent per annum.” Schott was also to make and deliver to Baker a first mortgage on the land to secure the payment of the notes. The parties met to consummate the agreement a few days later. Baker was an old colored man who, it appears, had had only two months schooling and was hardly able to read. Each party, however, was represented by an attorney. Appellants’ attorney there presented to Baker twenty-four notes and a first mortgage securing the same, which it appears had been prepared in accordance with the contract, bearing six per cent interest. The attorney for Baker, observing that the notes were written, “I promise to pay,” and were designed only to be signed by Schott, objected that the notes should be worded, “We promise to pay,” and should be executed by Schott and wife. Thereupon it was agreed that Schott or his attorney should rewrite the notes as requested and that they should be signed as requested. On the following day the parties again met and Schott and his attorney produced twenty-four notes and a mortgage and represented that the notes were like those examined the day before except they were worded, “We promise to pay,” and were signed by Schott and his wife. Neither these second notes nor the mortgage made any .provision for interest, but were received relying upon the representation that they were like the notes previously examined except as to the-change suggested. There is evidence, which, however, is denied, that the attorney for Schott, when asked about it later, said, in substance, that the attorney for Baker was too captious and “I put one over him”; also that he said Baker’s attorney was so drunk he did not notice the difference. There was also evidence on behalf of appellants that their attorney said, when he agreed to rewrite the notes, “I will make the notes this way but will leave the interest off.” Baker took the notes and mortgage and retained •eight of them and transferred sixteen to his daughter, Susie McWilliams, with the understanding that they also bore six per cent interest. Baker did not discover the omission of the provision for interest until about April 19, 1910, a year after the execution of the notes, when he thought interest, was about to be due thereon. Soon thereafter he brought this action to reform the notes and mortgage according to the agreement, and Susie McWilliams interpleaded and asked that her notes be also reformed. The good or bad faith in changing the notes so they did not by their terms bear interest as the contract and the first notes drawn provided was the question upon which the verdict depended. The verdict was for appellees and necessarily implies bad faith on the part of appellants. It is supported by abundant evidence and was approved by the court in rendering the judgment. The judgment is affirmed.	[ 16, 106, -40, -1, -102, 32, 42, -102, 120, -31, 39, 91, -23, -41, 21, 41, -91, 57, 80, 106, 71, -78, 39, 80, -14, -13, -39, -51, -79, -51, -12, 87, 76, 36, -62, 85, -30, -86, -119, 92, 78, -123, -117, 104, -37, 66, 48, 63, 16, 73, 53, -82, -13, 44, 53, 79, 109, 40, 91, 41, -47, -72, -71, -115, 125, 3, -80, 36, -100, 19, -54, 46, -104, -75, 9, -24, 123, -74, -58, 84, 13, 9, -120, 102, 102, 48, -59, -19, -112, -120, 35, -10, -115, -90, -43, 88, 2, 77, -68, -98, 84, 80, 38, -12, -21, 29, 25, 108, 2, -54, -44, -95, -113, 126, -100, 3, -2, 15, 33, 81, -49, 50, 93, 103, 56, 27, -98, -73 ]
The opinion of the court was delivered by Johnston, C. J.: In asking for a writ of habeas corpus the petitioner, Harley Gano, relied on the grounds of former jeopardy for the same offense for which he stands convicted, of error committed by the trial court in overruling a motion to set aside the verdict and to discharge the petitioner, and of material and fatal variance between the facts alleged in the information and those proven on the trial. Goods of the value of $30 were stolen from a building occupied by A. McNeal as a shop and dwelling house, and an information was filed charging the petitioner with the crime of burglary and larceny in taking them. He entered a motion to quash the information, claiming that it did not state facts sufficient to constitute a crime. The court first overruled the motion as to the charge of burglary and sustained it as to the charge of larceny. After a plea of not guilty a jury was impaneled, and the county attorney stated the case and proceeded to offer evidence in support of the charge. After the testimony of the prosecuting witness had been received the motion to quash was renewed, and as it was sustained by the court, both-jury, and defendant were discharged. Later a second information was filed, charging burglary and larceny, the offenses which the prosecutor attempted to charge in the first information, and upon this charge the petitioner was again brought to trial. He entered a plea, of former jeopardy, setting forth the steps taken on the former prosecution, and the demurrer thereto filed by the state was sustained. The jury on the trial returned a verdict of not guilty on the charge of burglary and guilty on the charge of larceny. Petitioner moved to set aside the verdict, and that motion being overruled, the court sentenced him to imprisonment in the penitentiary. No motion was entered for a new trial, but instead the petitioner sought release upon this writ. The. petitioner is not entitled to a discharge in habeas corpus for two reasons. If a mistake had been made in overruling his plea of former jeopardy it could not be corrected in habeas corpus. It has been decided that if error is committed in overruling such a plea it must be corrected on appeal. (In re Miller, 7 Kan. App. 686, 51 Pac. 922; In re Black, Petitioner, 52 Kan. 64, 34 Pac. 414, 39 Am. St. Rep. 331; In re Terrill, 58 Kan. 815, post, p. 138, 49 Pac. 158; 21 Cyc. 305.) If the question should be deemed open to consideration, however, it must be held that the former prosecution was not a bar to a trial for the larceny of which the petitioner was convicted. As has been seen, the court quashed the charge in the first information as to larceny before the jury was impaneled or the trial begun. The burglary and larceny charges were separate crimes, although stated in a single count. Wherever these offenses are separate and independent jeopardy for one is not a bar to a prosecution for the other. (Note. 31 L. R. A., n. s., 727.) Of course, if the prescribed penalty is for the commission of both burglary and larceny, or if the larceny of which the accused was convicted necessarily included burglary, or the penalty therefor was enlarged because of being committed in connection with burglary, there would be grounds for the contention that jeopardy as to one was jeopardy as to both. The offense of which petitioner was convicted was larceny from a dwelling house, an independent offense with characteristics of its own and a .penalty .peculiar to itself. (Gen. Stat. 1909, § 2571.) .Assuming, but not deciding, that jeopardy had attached as to the burglary, a charge which on the petitioner’s motion the. court was induced to hold did not, contain the recitals necessary to constitute a crime, it .is clear that there was no jeopardy as to the charge of larceny, which was quashed before the jury was impaneled. The essential criminal elements of the two. offenses are distinct and.neither is necessary to the other. The ordinary test demonstrates -that the offenses are not compound. Evidence to establish a larceny is not essential to prove a burglary. The latter may be proven by showing a breaking and entering with the intent to steal, although nothing was in fact stolen. The burglarious act was complete and the offense of burglary consummated before the first act in the larceny was begun. The evidence necessary to prove the burglary would not have supported the charge of larceny, and it is held that an infallible test to determine whether a former prosecution is a bar or not is to inquire whether the evidence necessary to make out a case under the first prosecution will support the charge under investigation. (The State v. Ridley and Johnson, 48 Iowa, 370; State of Iowa v. Ingalls, 98 Iowa, 728, 68 N. W. 445; Sharp v. State, 61 Neb. 187, 85 N. W. 38; Wilson and others v. The State, 24 Conn. 57; The State v. Martin, 76 Mo. 337; 12 Cyc. 285.) It is true that the plea of the petitioner attacked the charge of burglary, which was included with the charge of larceny in the second information, but as there, was no conviction on the burglary charge, the ruling as to that offense is not now important. If there had been a separate plea as to the charge of burglary the demurrer of the state thereto might have been overruled-by the court. The objection that there was a variance between the allegations in the information and the. proof is not available in this.proceeding. ¡The petitioner will. be.remanded.	[ 48, -30, -7, 62, 10, -32, 42, -72, 113, -79, -74, 83, -27, -102, 4, 121, 123, 111, 85, 121, -50, -73, 15, -63, -74, -14, -47, -107, -77, -53, -20, 116, 12, -76, -118, -107, 102, -54, 3, 92, -114, 7, 56, -43, -29, 104, 32, 42, 116, 15, -79, -97, -13, 47, 18, -46, -23, 40, 79, -67, -48, -71, -115, 13, 77, 21, -93, 54, -100, -125, 80, 60, -100, 17, 1, -24, 115, -106, -126, 116, 107, -101, 45, 102, 98, 1, -35, -21, -72, -119, 39, 26, -107, -25, -104, 72, 73, 36, -106, -67, 113, 18, 38, 124, -25, 20, 93, 110, 2, -50, -108, -79, -113, 113, 10, 121, -29, 33, -128, 112, -123, -94, 92, 71, 83, 27, -113, -68 ]
Per Curiam: This case was remanded at a former hearing with directions to settle the accounts between the parties. (Brooks v. Brooks, 86 Kan. 944, 122 Pac. 889.) It is stipulated that the cause shall now be heard in this court upon the former abstract and briefs and an agreed statement of the new evidence presented at the last trial. No further argument was presented at this hearing. It seems to be contended that the proceedings at the last trial were not in conformity to the opinion of this court. We are not advised nor does the agreed statement show wherein the proceedings do not conform to the decision. The judgment is therefore affirmed.	[ -80, -24, -75, 124, 8, 96, 42, -102, 101, -95, 53, -13, 45, -61, 16, 121, -14, 77, 113, 123, -42, -77, 79, -45, -10, -109, -21, -43, -80, 94, -89, -106, 76, 48, -118, -11, 98, -62, -59, 84, -114, 5, -103, 64, 89, -62, 112, 127, 90, 13, 49, -106, -29, 42, 18, -58, 105, 44, 107, 101, 80, -16, -118, 7, 109, 7, -77, -90, -40, 6, 88, 110, -44, 57, 1, -88, 114, -74, 6, 84, 73, -103, 8, 98, 98, 3, 117, -17, -112, -104, 38, -2, 29, -90, -110, 24, -55, 33, -106, -99, 117, 98, 6, 122, -3, -115, 61, -28, 13, -114, -42, -79, -121, 124, -100, 10, -17, 3, 48, 65, -55, -30, 93, -53, 48, -101, -98, -76 ]
The opinion of the court was delivered by Mason, J.: W. E. Wells recovered a judgment against Swift & Company, a corporation, for personal injuries received while in its employ, and it appeals. The plaintiff had been cleaning the flues of a boiler, using for the purpose a rotary boring machine, made of steel, about ten inches long and four inches in diameter, operated on the turbine principle, by compressed air. The air was brought from the compressor in the engine room to the boiler room by an iron pipe. To this pipe was attached a piece of inch hose twelve or fifteen feet long. The end of this hose was coupled to the middle of an iron double connection, or “T,” weighing about twelve pounds, to each arm of which another piece of hose was attached, about-twenty-five feet long. At the end of one of these pieces of hose was the boring apparatus operated by the plaintiff; at the end of the other was a somewhat similar device, used for smoothing and grinding the ends of the flues. At the point where the single hose connected with the iron pipe containing the compressed air was-a screw valve for turning it on and cutting it off. - On each arm of the “T” was a quick-action “gate” or lever valve, regulating the supply of air to each of the pieces of hose to which the turbines were attached. ' The plaintiff while cleaning the flues stood upon a platform about six feet high and twelve by fifteen feet in size. Having completed his work, he shut off the air from the hose he was using by turning the lever of the valve at the “T” or double connection. He then undertook to disconnect the boring apparatus from the hose. While he was doing so,' in some way the lever valve was opened, and the boring machine began to rim. It fell from his hands and the cutting edge of the revolving cylinder struck' his leg, inflicting the injuries on account of Which he sued. The petition alleged two grounds of negligence — (1) defective ventilation by which the boiler room was permitted to fill with steam, so that vision was obscured, and (2) defective construction of the valve. The jury found that the room was filled with steam, so that the plaintiff’s view was obstructed, but that the defendant’s negligence consisted in the defective construction of the double connection, in that the valves had no lock or safety device. The trial' court overruled a motion to make the petition more definite by stating specifically what acts of negligence caused the injury. The ruling is complained of. The petition described the mánner in which the air supply was furnished and regulated, alleged that the valves at the “T” were “negligently constructed to be operated by' a lever,” and added that “said double connection could be moved from place to place by picking it up or dragging it by means of the hose attached thereto for the purpose of operating the aforesaid appliances, and said valves, when said double connection was so moved, were liable to be opened or shut by the aforesaid levers coming in contact with any hard substance.” The defendant maintains that it was difficult to tell whether the plaintiff intended to charge generally that the valve was negligently constructed, or that the negligent construction consisted in the fact that the valve was operated by a lever. We think the petition is fairly to be interpreted as charging that in view of the surroundings and conditions stated it was negligence to use the kind of a valve described; but in any event it does not appear that any prej udice resulted from a failure to make the charge more specific. There was no express allegation in the petition that there should have been a lock or safety device on the lever, but this was implied from the statement that the valve was capable of being opened or shut by an accidental blow. The defendants argue that even if there had been a lock upon the lever valve it is reasonable to infer that the plaintiff would not have used it, because, he did not use the screw valve referred to. This screw valve regulated the supply of air to both machines. The plaintiff used the valve which cut off the air from the machine he was using, without interfering with the operation of the other. This consideration prevents the act of the plaintiff in this regard from amounting to contributory negligence. An instruction was asked and refused to the effect that if the plaintiff had been directed to use the screw valve to shut off the air from the machine he was operating he could not recover. The refusal of the instruction is rendered immaterial by the fact that the jury found that no such direction had been given. Witnesses were allowed to testify that the valve was-not safe. This is assigned as error. Such evidence is admissible where it relates to machines so complicated that the grounds of the opinion can not be fully exhibited to the jury. (King v. King, 79 Kan. 584, 100 Pac. 503.) Whether or not the case falls within that rule, no serious prejudice could have resulted, for all the facts were fully brought out, and whether the device was safe was a fair question for the jury. The judgment in the recent case of Root v. Packing Co., 88 Kan. 413, 129 Pac. 147, was not reversed merely bécause a witness was erroneously permitted to give his opinion as to the safety of a device, but because there was no other.evidence on the subject to support the verdict. Evidence as to the action of another valve, said to be of the same sort, was objected to, but the objection seems to affect its weight rather than its competence. The defendant argues that it was not obliged to furnish any particular form of mechanism, or the latest and best devices. But we do not find that the judgment rests on any contradiction of that rule. It is contended that even if the machinery was defective the plaintiff can not recover because he assumed the risk. In order for this principle to apply it is not enough that an employee should know the physical facts regarding the mechanism from which he receives an injury; he must also know, or be under an obligation to know, of the danger to which he is subjected. (Railway Co. v. Bancord, 66 Kan. 81, 71 Pac. 253; Brinkmeier v. Railway Co., 69 Kan. 738, 77 Pac. 586; 4 Thompson, Commentaries on the Law of Negligence, § 4652.) The plaintiff testified that he had seen the valve, but had not examined it closely; that he had had considerable experience in cleaning boilers, but was not positive whether or not he had used this particular contrivance before. It can not be said, as a matter of law, that he knew or ought to have known of the danger to which he was subjected. It was competent for the jury to find that the plaintiff did not know, and from want, of experience was not reasonably to be expected to know, of the danger, but that it was the duty of the defendant to know of it from the obligation the law places upon an employer with respect to appliances furnished for the use of employees. (King v. King, 79 Kan. 584, 100 Pac. 503.) The jury returned an affirmative answer to a question thus worded: “Was not the plaintiff an experienced boiler cleaner and perfectly familiar, before he was injured, with the stationary air line and air-line hose and the lever valve in question, and the turbine flue cleaner, and fully competent to do the work he was doing at the time he was injured ?” In view of the compound and involved character of the question the answer does not necessarily imply that the plaintiff knew the details of the construction of the valve, or that he knew or ought to have known of the danger resulting from its use. The more important special findings were the following : “Q. Is it not a fact that there was no fog of steam in the room where the plaintiff was working at the moment he claims to have been injured? A. No; there was steam. “Q. If you find that there was a fog of steam in the boiler room, what had that to do- with causing the plaintiff’s injuries? A. Obstruct his view. “Q. If you find that the defendant was guilty of any negligence, state of what such negligence consisted, giving full particulars thereof? A. Defective construction. of double connection, with valves without locks, and not being stationary located. “Q. If you find that the lever valve in question was negligently constructed, state in what particular it wus negligently constructed? A. Absence of lock or safety device. “Q. What caused the lever valve in question to be opened at the time the plaintiff was injured? A. Don’t know. “Q. Is it not a fact that the plaintiff and defendant were equally competent to judge of the risks and hazards of the plaintiff’s employment, and did both of them have equal knowledge of the surroundings and construction of the lever valve in question? A. No. “Q. If you. find that the plaintiff did not have equal knowledge of the surroundings with the defendant, state in what particular he did not have such knowledge. A. Not being qualified.; “Q. If you find that the plaintiff was not as competent to j udge of the risks and hazards of his employment as the defendant, state in what particular he was not competent to judge of such risks and hazards. A. Not qualified.” We think these findings support the verdict. They show that the jury took substantially this view of the matter: The fact that the room was filled with steam did not of itself constitute negligence, but it was one of the conditions the employer was bound to take into account in providing appliances for use in the boiler room. It is not possible to say just how the valve was opened, whether by some one accidentally hitting the lever, or stumbling over the hose, or by the action of the air'. But the defendant should have anticipated that an easily acting lever valve, attached to a movable hose, might be accidentally opened in a variety of ways, and that the starting up of the boring machine so occasioned would be dangerous to the employees. Therefore it ought, in the exercise of reasonable diligence, to have provided a lock or safety device to prevent such accidental opening of the valve. The plaintiff was not sufficiently experienced or skillful to enable him to realize the risk to which he was exposed by the use of a valve without a locking device. To several of the questions submitted the jury merely responded — “Don’t know.” Complaint is made of the refusal of the court to require more definite answers. We do not find any of the questions to be of such importance that a new trial should be ordered for want of answers to them, assuming that they could have been required. ' The judgment is affirmed.	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The opinion of the court was delivered by Porter, J.: In this case the plaintiff sued to recover damages for personal injuries received while at work for the defendant as a section hand. The jury returned a general verdict in his favor and in answer to special questions found certain facts, which the defendant claims entitled it'to judgment notwithstanding the verdict. The only question is whether the facts show that the injuries were the result of an accident the risk of which the plaintiff assumed when he entered into the employ of the defendant. The accident happened in this wise. Plaintiff with other section men was walking behind a push car which they were pushing along the track. The track was overgrown with weeds. On one side the ends of the ties were lined up, that is, were at an equal distance from the rail; at the other side, where plaintiff walked, the ends of the ties were not lined up, but were at irregular distances from the rail. As plaintiff walked along behind the car he stumbled and fell; his left hand was caught by one of the wheels and the little finger crushed so that it was necessary to have it amputated. The jury found that previous to the accident plaintiff had been at work on the section for two weeks; that he knew that weeds had been permitted to grow upon the track, and knew the condition of the ties, and that he was injured by stumbling on the end of a tie in the manner stated. The court instructed the jury that the plaintiff in entering the employ of the defendant assumed not only the ordinary risks and perils incident to his employ ment, but all dangers which were obvious and apparent, and that if he voluntarily entered into or con-' tinued in the service, having knowledge or the means of knowing the dangers, and his injuries resulted from the ordinary risks and perils of his work, he could not recover. No complaint is made of the instructions and they constitute the law of the case. “Where special questions are submitted to the jury under instructions that, if certain facts are found from the evidence the defendant can not be held liable, and the jury find those facts but render judgment against the defendant, and there is no complaint that the instructions are erroneous, they will be regarded as the law of the case, which the jury were bound to follow, and in such case it is the duty of the court to set aside the general verdict and render judgment for the defendant on the special findings.” (Colwell v. Parker, 81 Kan. 295, syl. ¶ 2, 105 Pac. 524.) The facts found by the jury are fully sustained by the evidence offered by the plaintiff, and clearly establish that the accident was the result of a danger which was as apparent to the plaintiff as it could be to the defendant or any of its officers or servants. It therefore became the duty of the court to render judgment for the defendant upon the special findings. “Where the servant has equal knowledge with the master of the construction and condition of the roadbed of a railroad company, and knows all of the dangers and hazards incident to his work thereon, such servant assumes all the risks and hazards of his employment.” (Clark v. Mo. Pac. Rly. Co., 48 Kan. 654, syl. ¶ 1, 29 Pac. 1138; Rush, Adm’x, v. Mo. Pac. Rly. Co., 36 Kan. 129, 12 Pac. 582; Railway Co. v. Bancord, 66 Kan. 81, 71 Pac. 253; Walker v. Scott, 67 Kan. 814, 64 Pac. 615; Railroad Co. v. McMinn, 72 Kan. 681, 84 Pac. 134; Railway Co. v. Loosley, 76 Kan. 103, 90 Pac. 990; Railway Co. v. Click, 78 Kan. 419, 96 Pac. 796.) In the petition there is a suggestion that the defendant’s surgeons or persons in charge of the hospitals of the company where he was taken for treatment were negligent in not causing the immediate amputation of plaintiff’s finger. We are unable to find any evidence iñ the record to support this claim, or upon which the verdict could be sustained. Reversed and remanded with directions to enter judgment for the defendant.	[ -112, 104, -100, -99, 90, 96, 58, -38, 97, -123, -89, 91, -83, -61, 13, 35, -9, 127, 80, 43, -3, -85, 7, -61, -14, -73, 51, -60, -67, 107, 102, 87, 77, 48, -126, -43, -26, 73, -59, 28, -114, 4, -88, -21, 25, -80, 48, 126, 22, 95, 113, -98, -85, 34, 24, -57, 41, 56, 106, -67, -47, -7, -96, 13, 103, 16, -77, 36, -98, 39, 90, 56, -40, 49, 0, -24, 115, -74, -122, -44, 41, -69, 72, 102, 98, 33, 29, 103, 120, -40, 47, 126, 15, -90, 56, 24, -119, 15, -105, -35, 78, 20, -90, -22, -4, 93, 29, 108, 3, -117, -80, -79, -49, 36, -98, 99, -53, -123, 16, 97, -52, -94, 93, 5, 83, -101, -97, -114 ]
The opinion of the court was delivered by Smith, J.: This is an original proceeding in mandamus brought against the defendant as a judge of the district court of Wyandotte county to compel the judge to vacate an order of injunction issued by him at chambers to the judge of the city court of Kansas City, restraining the latter from proceeding to the trial of an action of forcible entry and detainer therein pending, in which the plaintiff herein is plaintiff and one Phillips is defendant. Prior to the inception of the action in the city court an action to quiet the title to the same property involved in the forcible entry action was brought in the district court. The plaintiff, a Mrs. Barnes, in the district court action, alleged, as the basis thereof, that she was the owner and in the possession of the property. It is conceded, however, in defendant’s brief that the only possession she had was through a tenant, one G. A. Phillips, who is the defendant in the forcible entry action in the city court. The action in the district court was commenced on April 17, 1913, and on May 13, following, Mrs. Juhlin, plaintiff herein, answered therein and alleged that the possession of the plaintiff was unlawful and could not be made the foundation of a suit to determine title. On the same day Mrs. Juhlin in the city court of Kansas City filed a complaint in forcible entry and detainer against Phillips and wife and to recover possession of the premises. On May 24 Mrs. Barnes filed her reply in the district court and made denial of the facts set up in the answer. In her petition here Mrs. Juhlin alleges that the defendants in the forcible entry action were tenants of plaintiff in the action to quiet title, and the forcible entry action against such tenants in the city court was the same as alleged as a defense in the action to quiet title. It is thus apparent that the suits in the two courts have at least one issue in common. It is urged that the action of forcible entry and detainer is, in a sense, a summary action and that a continuance for a longer period than eight days is prohibited by statute, while the action in the district court takes the usual course of business and may be subject to long delays. After judgment, however, in the city court an appeal might be taken to the district court, where it might be tried promptly or might be continued as other actions. As a general proposition it is true that the action of forcible entry and detainer is made a somewhat summary proceeding, that citizens may not be unlawfully driven or kept from their homes and be subjected to inconveniences and humiliation which can not be repaid in-money; also to prevent or discourage personal conflicts and attempts to settle possessory rights by force. . On the other hand, of course, the plaintiff in the district court can not recover whatever may be her title unless she had lawful possession, and lawful possession is not acquired by forcible entry. Neither can a party better his position in bringing an action by unlawful acts, and courts should be zealous in maintaining the principle. (Wilson v. Campbell, 75 Kan. 159, 88 Pac. 548; Iron Mountain & Helena R’d v. Johnson, 119 U. S. 608.) It is a general proposition, however, that the court first obtaining jurisdiction of a case may hold jurisdiction of all matters directly involved therein to the exclusion of other courts of concurrent jurisdiction. It is generally less expensive and in every way preferable that all the issues which may be tried in one case should be so tried rather than in two or more actions. It is true that during the necessary delay of the trial in the district court the plaintiff will lose the protection which a bond for double rent would give her if the case were tried in the city court and decided therein in her favor, and appeal taken from the judgment. However, we conclude that justice may be more fully done by a trial of all the- issues involved in one court and that the precedents favor such procedure. The writ is therefore denied.	[ -15, -22, -20, -50, 26, 81, 2, -87, 99, -47, 36, 115, 41, 18, 5, 125, -78, 61, 81, 105, -58, -77, 79, -30, -10, -37, -47, 85, -69, 93, -4, 86, 72, 49, 74, -41, 6, -46, -123, 92, -122, 33, 9, -60, -45, -32, 44, 59, 0, 15, 49, -66, -5, 40, 24, -45, -23, 45, -53, -89, -44, -7, -113, 21, -35, 22, 49, -90, -106, -123, 88, 44, -112, 48, 0, -24, 115, -74, -126, 52, 111, -53, 44, 34, 98, 99, -67, -21, -72, -104, 62, 90, -99, -90, -110, 88, 107, 96, -74, -103, 125, 16, 67, -6, -26, 21, 25, 44, 15, -117, -108, -79, 15, -71, -110, 3, -21, -125, 32, 48, -53, -30, 92, 67, 115, -37, -113, -71 ]
The opinion of the court was delivered by Johnston, G. J.: In an action by the state against Mary Dixon and others, brought under a provision of the prohibitory liquor law, the defendants, their agents, successors and assigns, and all other persons were perpetually enjoined from keeping and maintaining, and from permitting others to keep and maintain, a liquor nuisance on certain premises in Junction City. The judgment was rendered on November 18, 1908, and among other things it was adjudged that the fees and costs of the proceeding should be a lien upon the premises. Pending an appeal from that judgment, and on May 22,1909, Mary Dixon died. On November 4,1910,. the appeal was dismissed in the supreme court, and the-, enforcement of the judgment was directed. The attorneys’ fees and costs, adj udged to be a lien on the premises, were never paid, and in this proceeding, which was brought June 29, 1911, the state asked that the lien, be foreclosed and enforced as against the premises;The appellees, who now own the property, contended'.! that the judgment was dormant and ineffectual, because; no steps had been taken to revive it after the death off Mary Dixon. More than two years had elapsed between' her death and the bringing of this proceeding. On the other hand, appellant contended that the provisions of the statute relating to dormancy of judgments did not operate to bar the state from the enforcement of its judgment, and especially judgments of this character. The trial court sustained the contention of appellees and the state appeals. Section 436 of the code provides that if parties die after judgment a revivor may be had in the name of their representatives or successors. As to the time in which if may be done, it is provided that: “If a judgment become dormant it may be revived in the same manner as is prescribed for reviving actions before judgment at any time within two years after it becomes dormant.” (Civ. Code, § 437.) Another provision relating to dormancy and revivor is: “If execution shall not be sued out within five years from the date of any judgment, including judgments in favor of the state or any municipality in the state, that now is or may hereafter be rendered in any court of record in this state, or if five years shall have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor.” (Civ. Code, § 442.) Neither of these provisions bars the enforcement of the lien in favor of the .state. Upon the death of a ,party after judgment it may be good practice for the state to give notice to and bring in the representatives, successors or subsequent owners, but it is a general rule that statutory limitations do not run against the state when it sues in its sovereign capacity, unless the statute expressly includes the state or the intention to include the state is shown by the clearest implication. It has been frequently held that neither statutory limitations nor laches bars the state or its municipalities as to any claim for relief in a governmental matter or the enforcement of what may be termed a public right. (Wood v. M. K. & T. Railway Co., 11 Kan. 323, 349; The State v. School District, 34 Kan. 237, 8 Pac. 208; Roberts v. M. K. & T. Rly. Co., 43 Kan. 102, 113, 22 Pac. 1006; The State v. Book Co., 69 Kan. 1, 76 Pac. 411, 1 L. R. A., n. s., 1041; Osawatomie v. Miami County, 78 Kan. 270, 96 Pac. 670, and cases cited.) The state is not included, either expressly or by necessary implication, in the code provisions limiting the time within which a revivor may be had where the death of a party occurs.. The provisions of section 442 do include the state in terms, and therefore to’prevent dormancy of an ordinary judgment the state, as well as other litigants, is required to sue out an execution within the 'five-year period. An execution, however, was not essential to the vitality of the judgment in question. It was a judgment against the property, and also an adjudication not only against Mary Dixon, who owned the property when the judgment was rendered, but was equally binding on all others who may own or occupy the property in the future. In a proceeding to punish a party for violating an injunction in a similar case it was contended that the judgment had become dormant and the lien inoperative because no execution had been issued thereon, and it was said that; t “The provision of the code that a judgment shall become dormant and cease to operate as a lien upon the estate of the debtor when execution has not been taken out for a period of five years has no application to a judgment of this character. It was final and perpetual, and no execution was necessary to continue it in force.” (The State, ex rel., v. Durein, 46 Kan. 695, 700, 27 Pac. 148.) Appellees contend that the j udgment is twofold in its character, and that part of it adjudging that the attorneys’ fees and costs be made a lien on the property is distinct and separable from other portions of it, and that the bar of the statute applies to it. An execution is no more necessary as to one part of the judgment than the other. The state is not barred from enforcing either part of the judgment. It may be said, however, that if the lien declared should be treated as a separate feature of the judgment and subject to the limitations of ordinary judgments the five-year period mentioned in section 442 had not expired when this proceeding to enforce the lien was commenced, and therefore it could not be held to be dormant even if that provision of the code were held to be applicable. The judgment will be reversed and the cause remanded for further proceedings.	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The opinion of the court was delivered by Benson, J.: This appeal is from a judgment for damages for the death of the plaintiff’s husband at a railroad crossing in Newton. The railway company has thirteen parallel tracks extending northeast and southwest through the city connecting its 'local yards. These tracks cross First street, which extends east and west, in a populous part of the city. The direction of the tracks will be referred to as north and south. The traffic of the main line east, west and south out of and into Newton, and the major part of the switching and local work, is over this crossing, which is in continuous use day and night. The company has long maintained an electric arc light over this crossing to light the crossing and adjacent yards, and to aid the company and the public in the use of the crossing, although not required by ordinance to do so. A switch shanty is located eighty feet south of this light, where a switch tender is on duty day and night. The company maintains extensive shops and a round house near the crossing. On the night of February 20,1911, at about 8:45 o’clock, Dr. Fike came into the city from the west, driving a two-horse team with a covered carriage. The night was cold and very dark, sleet was falling and a strong wind was blowing. He had on a fur overcoat with collar turned up about his neck and ears, and the side curtains of the carriage were on. The arc light referred to was not burning, having been out for an hour and forty-five minutes. It had been burning irregularly for over a week. There was no light at this crossing except such as might have been afforded by headlights and the lanterns of employees. A switch engine was moving backward, pushing seven freight cars from the north yard to the south yard. At a point 1400 feet.north of the crossing the engineer sounded four blasts of the whistle for the switch tender referred to to line up a switch there. The switch tender carrying his lantern from the shanty turned the switch and gave the back up signal, which was repeated to the engineer by a switchman standing on the top of the south car of the train, by a circular motion of his lantern. This signal was answered by two short blasts of the whistle. The engine was then 700 feet from the crossing. It carried a headlight upon each end, but the end of a box car coupled to the engine was immediately in front of the headlight on the south end. The brakeman was facing in the direction of the moving train and wore a heavy storm coat. Dr. Fike, driving east on First street, crossed nine tracks and approached the next one with his team trotting; when he was within fifteen feet of the track, and the south car of the train was seventy feet from the street crossing, the switchman standing on the south car, to use his own language, “Saw the outlines of a double-horse team and buggy, that is, I got a glimpse of it ahead.” He immediately gave the stop signal, and yelled, and then heard and felt a collision. The engineer made all possible effort to stop the train but it ran on 300 feet beyond the crossing. It struck the carriage and killed the occupant. The switch tender at the side of the track also saw the horses’ heads for a moment when they were 130 feet from him and about fifteen feet from the track upon which the collision occurred. He shouted and waved a stop signal with his lantern. The south car was then about fifty feet from the point of the collision, and the train was running at a speed of fifteen to twenty miles an hour. The bell was ringing all the time. Bells upon other engines at and about the round house and up and down the yards were ringing and whistles were being blown at all hours of the day and night, and there were lights about the shops and roundhouse north and east of the point of the collision. In answer to special questions the jury found the following additional facts: The hearing of the deceased was not obstructed by the manner in which his coat was buttoned about his neck and ears; the curtains of the buggy interfered with his seeing approaching objects at the side; it was more difficult to see approaching cars on account of the darkness; aside from the darkness a person in First street could have an unobstructed view of nine tracks northeasterly for a distance of a block and a half; there were no obstructions to the view between the point of the accident and 90 feet west thereof for 600 feet northeastwardly; the deceased had .been familiar with the crossing for five years; there was nothing to prevent him from seeing that the electric light was not burning; switch No. 7 (the one turned for this train) was 155 feet from the point of collision; a person standing on First street just west of the nine tracks would not have a side view of a train as it approached First street from the electric light plant (which is 1400 feet north) ; a lighted lantern such as the switchman had could be seen by a person for half a mile looking toward it who had an unobstructed view, and the train was 400 feet north of First street when the switchman swung it as a signal for the train to proceed. Further findings were that the defendant’s employees were. negligent in failing “to maintain lights in condition at crossings or to provide watchman for such crossing when lights are not in condition, and to display light at west end of train,” which negligence consisted in the “absence of light or watchman at crossing and light at west end of train.” The jury further found that if the speed of the team was checked the evidence did not disclose how far this occurred from the point of collision, nor when it occurred, nor whether Dr. Fike took any precautions to learn of the approaching train, and did not disclose how far he was from the place of injury when he did so, nor what precautions he took before undertaking to cross the track when he was injured; nor how far the reflection of a headlight on the west (south) end of the engine could be seen by one standing at or near the crossing, nor whether a headlight so placed next to box cars would throw a light visible that night to one standing in First street west of the nine tracks while the engine was moving between First street and a point 800 feet north; nor how far Dr. Fike could have seen the train just as he drove upon the track, but in the opinion of the jury not to exceed forty feet. To the question whether Dr. Fike stopped his team to look and listen for cars approaching First street from the northeast before undertaking to cross the track the jury answered, “Yes, in the absence of evidence the law presumes he did.” • Other questions were answered, but the statement of facts first given includes the answers so far as material. The negligence charged in the petition was that the train was backed upon the crossing at dangerous and unreasonable speed without a crossing signal, flagman or watchman, or other measures to guard against accident with the electric light out and in the darkness. . The defendant argues that the charges of negligence are not proven, and that the death of the plaintiff’s husband was caused by his own negligence. The crossing was a dangerous one. Thirteen tracks crossed the street, with railroad yards, shops and roundhouse near by and the constant switching and moving of cars incident to this important division point. The jury were warranted in finding that ordinary and reasonable care at such a place required that in the absence of the arc light a light ought to have been displayed at the end of the backing train, or a watchman provided. Running such a train over the crossing on a dark, stormy night in the circumstances stated, without warning or signals except the ringing of the bell, and the sounding of the whistle for switching, with no light except that of the lantern of the switchman and such as might shine out from the headlight between the tender and the solid end of the box car in front of it, is evidence from which negligence might be found. It is argued that the arc light had but recently gone out. If sufficient time had not elapsed to repair or refurnish it there was at least sufficient time to take some further precautions in switching cars until it could be restored. The fact that the city had not required a light or a watchman does not relieve the defendant from the duty to exercise such ordinary care and provide such safeguards as common prudence would dictate in view of the dangers to be reasonably apprehended. (Mo. Pac. Rly. Co. v. Moffatt, 56 Kan. 667, 44 Pac. 607; 2 Thompson’s Commentaries on the Law of Negligence, §§ 1525-1535; 3 Elliott on Rail roads, 2d ed., § 1156; English v. Southern Pacific Co., 13 Utah, 407, 57 Am. St. Rep. 772, and note; Henavie v. N. Y. C. & H. R. Rld. Co., 166 N. Y. 280, 59 N. E. 901, 9 Am. Neg. Rep. 345.) In Railway Co. v. Durand, 65 Kan. 380, 387, 388, 69 Pac. 356, the following quotations from McGrath v. N. Y. C. & H. R. R. R. Co., 63 N. Y. 522, appear: “Where there has been a collision at a railroad crossing with a traveler upon the highway, and the railroad company is sued for negligence in causing the collision, its negligence is made out generally by proving all the circumstances surrounding the transaction, and submitting them with proper instructions to the jury. It may be proved that the collision took place in the night time, in a rain-storm; that the train was running fast or slow, with or without headlights; that it was backing or going forward; that it was running in a city in a crowded thoroughfare, or in the country; that there were many or few tracks; that there were obstructions, making it impossible to see the train before the crossing was reached. These circumstances are proved, not to impose upon the railroad company any duty which the law does not impose, or any duty to do any acts collateral to the running and management of its trains in a lawful manner upon its road, but as bearing upon the question of the manner in which it has run and managed its train. A different degree of care may be required in running trains in the dark and in the daylight, in city and country, when there are obstructions and no obstructions near crossings. . . . And, in the absence of flagman, railroad companies may, in the exercise of proper care, be required to run their trains slower, or to take other precautions to protect travelers ; the question in all cases being, not whether it was their duty to do any of the collateral things to warn travelers, but whether, under all the circumstances of the case, it run and managed its train with the requisite care and prudence.” (pp. 527, 528.) It has been declared negligent to run a train over a public crossing at night without a headlight, or if the engine is not in front then upon the end of the forward car. (33 Cyc. 958; L. E. & W. Ry. Co. v. Zoffinger, 107 Ill. 199.) (See, also, Burling v. Railroad Co., 85 Ill. 18, and B. & O. S. W. Ry. Co. v. Alsop, 176 Ill. 471, 52 N. E. 732.) It is contended, however, that the dangerous character of the crossing was well known to the deceased, who was familiar with the situation, knew of the absence of the light, and that a watchman had not been provided, and should have exercised care commensurate with the known danger. But it was a question for the jury whether he did exercise reasonable care, and their finding, if supported by competent evidence and approved by the trial court, determines the fact. It is argued that it was negligence per se to approach the' track where he was killed with his team on a trot, with the sides of his carriage on and his fur coat collar turned up. While the side curtains would obstruct a view directly to the side, the tracks crossed the street diagonally. Whether he leaned forward and looked in the direction of the tracks is not shown, but the presumption is that he did all that a reasonably prudent person would have done with his knowledge of the situation, unless there is evidence tending to show that he did not. While there is evidence that he approached the track where he was killed with his team trotting, it must be remembered that he had already crossed nine other tracks; whether he stopped before going upon the first one, or afterward; before the team was seen by the switchman is not shown, but as the jury said, it is presumed that he did, that is, it is presumed that he exercised the care of an ordinarily prudent person unless there is evidence to the contrary. In view of other movements and other lights on or about the tracks it might have appeared to him that to stop after crossing one or more of the tracks would only increase the peril. He had the right to use the crossing, exercising ordinary care in doing so, to be determined by the jury, not from one but from all the circumstances. It is said that he should have observed the light of the lantern of the switchman on the moving car, but there were other lights. The train had just been deflected from another track, and he might not have been able to determine with certainty that it was advancing on that particular track. The train was moving rapidly, affording but little time for observation and reflection after he had gone upon the first track. Besides, the switchman, enveloped in a heavy coat, held the lantern in his left .hand as he faced south, and its light may have been partially obscured except at the moment in which the lantern was used as a signal. The deceased was bound to look ahead as well as along the tracks in the directions from which a train might approach so far as he could reasonably do so. . In all these circumstances it was a question for the jury, upon all the evidence, whether he acted with ordinary prudence. (Johnson v. Railroad Co., 80 Kan. 456, 460, 103 Pac. 90; Railway Co. v. Wilkie, 77 Kan. 791, 90 Pac. 775, 11 L. R. A., n. s., 963.) The defendant called the plaintiff as a witness, who testified that her husband frequently drove over the crossing in question and was familiar with it. On cross-examination she was permitted to testify over the defendant’s objection, that he always drove carefully, watching for dangers, and at night stopped to look for trains. This objection is now presented as a ground of error, citing Coal Co. v. Dickson, 55 Kan. 62, 39 Pac. 691. The objection made was that the testimony was incompetent, a conclusion, and that the subject was not one for expert evidence. It was a statement of .what the witness had observed. The statement that Doctor Fike was careful in driving and watching on the occasions referred to in her' direct testimony was not the expression of a general opinion that he was a careful driver. Evidence of this char acter is referred to as having probative force in Railway Co. v. Moffat, 60 Kan. 113, 117, 35 Pac. 837, but whether it'was admitted with or without objection is not stated. In S. K. Rly. Co. v. Robbins, 43 Kan. 145, 23 Pac. 113, an action to recover damages for the death of a brakeman, where the question whether the opinion of an expert was admissible was considered, the court said: . “There were eye-witnesses present, who at the trial described the manner in which he ascended the ladder, and the care which he exercised at the time the accident occurred; and hence there was no necessity nor propriety in admitting the opinion of an expert as to Whether he was generally a careful and skillful man.” (p. 148.) ■ The eyewitness here only had a momentary glimpse of the team and carriage. No one observed the conduct of the deceased before that moment which immediately preceded the fatal collision. It was said in Frederickson v. Iowa Cent. Ry. Co., (Iowa, 1912) 135 N. W. 12: “Büt we are of the opinion that evidence of the general habit in using a particular railroad' crossing is competent, at least where there are no eyewitnesses of the accident. It may tend to aid the presumption of self-preservation that arises in such cases, because a person is more likely to do what he is in the habit of doing under the same conditions.” (p. 13.) Other cases appear to hold that when there are no eyewitnesses of the occurrence the exercise of care by the deceased in such cases may be shown by his habit. (C. & A. Ry. Co. v. Wilson, 225 Ill. 50, 80 N. E. 56; Tucker v. Railroad, 73 N. H. 132, 59 Atl. 943.) In Zucker v. Whitridge, 205 N. Y. 50, 93 N. E. 209, the court, after reviewing conflicting decisions upon the question,' disapproved evidence of general conduct of the injured person in such a case, but said: “We are not now called upon to decide whether evidence of the habits of a decedent in crossing railroads is competent when there is no eyewitness of the event.” (p. 65.) This subject was referred to but not decided in Saunders v. Railway Co., 86 Kan. 56, 61, 119 Pac. 552, and it is not necessary to decide it here for the testimony if incompetent was still not prejudicial. The jury in answering the question whether the deceased stopped his team to look and listen based their affirmative answer on the legal presumption and not on the testimony. Complaint is made of an instruction stating in substance that in the absence of evidence whether the deceased did look and listen the law presumes from natural instinct to protect his person and preserve life that he looked and listened for approaching trains before venturing upon the crossing, and if his situation was such that his duty was to stop the law presumes that he did stop. The principal objection is that there was no room for the presumption because there was evidence to the contrary. Reference has already been made to the evidence touching that matter. This objection is based apparently upon the supposition that the instruction related to the particular track, but it related to the crossing, and properly so. Another criticism of the instruction is that it was not qualified by stating that the presumption would not apply if there was evidence that the accident would not have occurred if the deceased had exercised due care. The introductory phrase referring to the absence of evidence upon the subject contained the qualification suggested. Other instructions correctly stated his duty to look and listen and the circumstances in which he was required to stop. No error is found in the instructions. The motion for judgment on the findings is based largely upon the claim that they established contributory negligence. This contention has already been considered. The judgment is affirmed.	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Per Curiam: This is a proceeding in mandamus originally commenced in the district court to compel the transfer of twenty shares of the capital stock of The Farmers & Drovers Bank of Kingman, Kansas, on the books of that corporation. This proceeding was commenced on the 11th day of March, 1893. After the making of various orders upon issues joined, certain facts were submitted to and found by a jury in favor of the plaintiff below, and upon such finding a peremptory order was granted directing the transfer of the stock to plaintiff. Upon a transcript of the record proceeding in error was prosecuted to the court of appeals, and remained there pending and undetermined at the expiration of the life of that court. The same is now before this court for determination. As shown by evidence aside from the record and as conceded in the briefs of counsel, since the making of the order complained of, during the pendency of proceeding in errtpr in the court of appeals, the Farmers & Drovers’ Bank being insolvent, a receiver was appointed, by order of the circuit court of the United States for the district of Kansas, second division, to wind up the affairs of the bank. On the 24th day of June, 1895, upon report filed by such receiver showing a disposition of all the assets of the bank, the receiver was, by order of that court, discharged. The defendant in error has filed.his motion to dismiss this proceeding in error upon the ground that the affairs of the bank have been fully settled, its officers have by reason thereof ceased to exist, and should this court affirm the order- made below a compliance with such order has become impossible, of performance. It has been many times • held that if during the pendency of an appeal the order of mandamus appealed from is obeyed, or if an order has been applied for and denied and an appeal perfected therefrom, and during its pendency the order if made has become impossible of performance, the appeal will be dismissed. (Ellis v. Whitaker, 62 Kan. 582, 64 Pac. 62; Leet v. Kern County, 115 Cal. XVII, 47 Pac. 595; San Diego S. D. v. Supervisors, 97 Cal. 438, 32 Pac. 517; State, ex rel., Romian v. Board of Supervisors, 49 La. Ann. 578, 21 South. 731; The People v. Squire, 110 N. Y. 666, 18 N. E. 362; State v. McHatton, 10 Mont. 369, 25 Pac. 1045; Bardsley v. Sternberg, 17 Wash. 243, 49 Pac. 499.) In principle the case at bar can not be distinguished. It is clear the order made from which this proceeding in error is prosecuted is now by reason of subsequent events incapable of enforcement. The command of this court to carry the same into effect would be nugatory. In volume 13 of the Encyclopedia of Pleading & Practice, it is said: “In a number of states the courts hold that where the mandamus is obeyed pending the appeal, or where the acts sought to be compelled have become impossible, or in any other way the question involved in the proceedings have become immaterial, the appeal will be dismissed.” (p. 832.) While a reversal of the order made in this case might relieve the plaintiff in error from the effect of his refusal to comply therewith, yet should the order be affirmed performance can not now be enforced,. and the inability to carry the order into effect if affirmed arises from no act of defendant in error but from the acts of the corporation represented by plaintiff in error. It is also alleged in the motion for dismissal that the transcript of the record is incomplete and the certificate of the clerk thereto insufficient. An examination of the record shows matters by statute made a part of the record omitted therefrom. It follows that the motion to dismiss the proceeding in error must be sustained. It is so ordered, all the justices sitting concurring. Doster, C. J., Smith, Ellis, and Pollock, JJ.	[ 48, 96, -67, 28, 10, -32, 58, -70, 65, -69, 103, 83, -23, -38, 20, 57, -58, 57, 113, 113, -60, -77, 23, -54, -14, -77, -39, -43, 53, 79, -28, -41, 77, 48, 10, 85, 70, -64, -61, 92, -114, -123, -103, 100, 81, 1, 56, 47, 82, 79, 49, 62, 114, 44, 24, 114, 73, 44, -21, -68, 97, -16, -85, -59, 127, 22, -95, -128, -102, 5, -48, 62, -112, 57, 41, -23, 118, -74, -122, 116, 107, 91, 40, 98, 98, 3, 69, -17, -104, -88, 60, -98, -115, -122, -110, 24, 105, 35, 54, -103, 117, 23, 6, -4, -18, -115, 25, 108, 5, -49, -108, -73, -113, 125, -102, -117, -13, -93, 48, 117, -51, -30, 92, 71, 51, 59, -114, -15 ]
The opinion of the court was delivered by West,-J.: Plaintiff Rhodes sued to enjoin the closing of an alleged road along the south side of the defendant’s land. Later the state was made a party on the relation of the county attorney. The court heard all the evidence and found that the strip of land in controversy had become “a public road by prescription or public user and not by mere license of the owner,” and granted the injunction. The defendant appeals, and the main contention is that there was no evidence to warrant the finding and decree, and that error was committed in not compelling the two plaintiffs to separately state and number their causes of action, the one being private and the other public in nature. If, as found, the road was one by prescription or public user, then the plaintiff as an adjoining landowner and necessary user of the road had a peculiar interest in its remaining open, while the public had a general interest in having it kept open for general use. It is not clear from the abstract whether the state was. added as a party or substituted for the plaintiff, but the question whether the strip in controversy was a road or not was fully tried and determined, and we can not discern how the defendant could have been materially prejudiced by this change in the pleading. It is earnestly contended that there was no evidence to warrant the finding and conclusion of the trial court, and we have ■ examined the record with- considerable care for the purpose of determining the correctness of this complaint. While much of the testimony was unsatisfactory, different persons who had known the situation various portions of the time for the last forty years testified to the use of the strip in question, to a fence which at one time separated it from the land of the defendant, and to various other matters, from which it was possible to reach the conclusion that it had been dedicated to public use and for many years treated as a public highway. At any rate, it is impossible to say that the conclusion of the trial court was without evidential basis. Various questions are suggested touching the law of dedication, user and acceptance, but it is not necessary to discuss them, for the reason that the case as presented here is essentially one of fact, and having been determined by the trial- court, which saw and heard the witnesses and was doubtless more familiar with the situation than we can be from the mere reading of the record, and such record showing that there were grounds for the determination reached, we can do naught but approve the ruling. The judgment is therefore affirmed.	[ -15, 108, -44, -66, 106, 96, 58, -104, 105, -85, -75, 91, -81, 66, 28, 33, -65, 47, 84, 43, -57, -78, 83, -125, 114, -13, 122, -35, 49, -52, -26, 87, 76, 32, -118, 85, 102, 74, -59, 82, -50, 6, -101, 77, -63, -48, 52, 63, 16, 79, 21, -113, -29, 46, 24, -61, 105, 44, 75, 61, -103, -8, -98, -105, 93, 4, 19, 103, -72, -93, -40, 42, -112, 49, -127, -8, 115, -74, -106, -12, 73, -103, 8, 38, 107, 1, 125, -17, -24, -103, 14, 124, 13, -90, -128, 24, -119, 64, -106, -99, 112, 80, -57, 122, -20, 77, 30, 108, 13, -117, -110, -95, -17, 60, -100, 65, -29, 1, 16, 112, -57, -22, 93, 101, 80, -101, -113, -112 ]
Per Curiam: The disputed questions of fact in this case are settled by the findings of fact) which are supported by sufficient , evidence. The specific findings of fact relating to an item of $1.12 are not nullified nor are the findings rendered inconsistent because it appears to be necessary to charge that item to the contractor, Forbes, in order to arrive at the balance found by the court to be due from him. It is a plain case of an error ill compiling figures. The legal proposition for which the plaintiff contends is foreclosed by the findings of fact. The owner did not adopt the contract of the contractor or undertake to fulfill or complete it whereby the owner in effect became substituted for the contractor. The owner simply finished his building in his own way upon his. own account and credit after the contractor had abandoned his contract. As a result the plaintiff as a subcontractor was obliged to file its lien within the prescribed time after the last furnishing of material to-the contractor, which it did not do. The judgment of the district court is affirmed.	[ -47, 122, -8, -18, -118, -96, 26, -102, 73, 9, 55, 87, -19, -62, 84, 107, -12, 121, 97, 98, -43, -93, 7, 75, -42, -77, -15, -43, 49, 109, -28, -36, 76, 48, -62, -11, 98, 2, -43, 88, 14, -105, -120, 65, -7, 64, 52, 91, 88, 15, 49, -36, -77, 40, 16, -49, 108, 62, 111, 63, -63, -16, -125, 5, 79, 5, -79, 117, -108, 79, -40, 16, -112, -72, 0, -24, 115, -74, -58, 116, 67, -71, 9, 96, 98, 0, 9, -19, -48, -36, 39, -34, -113, -89, -105, 88, 11, 47, -74, -99, 109, 6, 38, 126, -26, -123, -101, -3, 31, -114, -42, -77, -99, 116, -104, -125, -18, -125, 16, 96, -49, -96, 92, -94, 27, -101, -98, -35 ]
The opinion of the court was delivered by West, J.: The defendant appeals from a conviction of the offense of employing means and administering substances with intent to procure an abortion and mis carriage. Six hundred ninety-seven pages of abstracts, two hundred seven pages of briefs, and one hundred three assignments of error are presented for our consideration, and such brevity of statement as is possible under the circumstances will be used in giving our views. Section 2532 of General Statutes of 1909, under which the information was drawn, reads as follows: “Every physician or other person who shall willfully administer to any pregnant woman any medicine, drug, or substance whatsoever, or shall use or employ any instrument or means whatsoever, with intent thereby to procure abortion or the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, or shall have been advised by a physician to be necessary for that purpose, shall upon conviction be adjudged guilty of a misdemeanor, and punished by imprisonment in the county jail not exceeding one year, or by fine not exceeding five hundred dollars, or by both such fine and imprisonment.” The information charged that the defendant “from the 5th day of December, A. D. 1911, and each day thereafter until the 12th day of December, A. D. 1911, . . . did then and there during each said days unlawfully, willfully and intentionally cause one Goldie Chadwick to walk and run in and about a certain room and up and down flights of stairs, and . . . did then and there unlawfully, willfully and intentionally administer to her, the said Goldie Chadwick, certain medicines, drugs and substances, a more particular and definite description of which your informant is unable at this time to give, for the reason he does not know the same, she, the said Goldie Chadwick, being then and there at all of said times a woman pregnant with child”; followed by the allegations that the intent was to produce an abortion and miscarriage and that there was no necessity or medical advice for such acts. It is vigorously urged that the absence of an allegation that the walking and running and the medicine given were calculated to produce an abortion and the failure to charge the kind of substances administered render the information bad, and that the doctrine of ejusdem generis precludes embracing within the charge other than means kindred to the giving of drugs and the use of instruments. But viewed from a practical and common-sense standpoint it is clear enough that the defendant was very well advised that she was called on to meet a claim by the state that she had used the means indicated with the intent to produce an abortion and miscarriage. The legislature has made such conduct a crime without stopping to provide that the medicine, instruments or means used be such as are calculated to produce the intended result. The rule of ejusdem generis is merely one of construction, and like all the rest is useless when the intention is so plain as to require no resort to canons of construction. Such rules and canons are of use only-' when ambiguity or uncertainty calls for aids to a correct solution. (The State v. Prather, 79 Kan. 513, 516, 100 Pac. 57; 36 Cyc. 1119.) To máke assurance doubly sure the legislature has enacted the common-sense rule into law arid provided that “Words and phrases shall be construed according to the context and the approved usage of the language.” (Gen. Stat. 1909, § 9037, subdiv. 2.) The phrase “any instrument or means whatsoever” carries the facial evidence- of a legislative intent to cover the extent of the criminal machinations and devices of the abortioriist in order to protect the pregnant woman and the unborn child. Whatsoever in the law, like whosoever in the -gospel, is a word of the widest import. It is suggested that while one might administer a known deadly poison which would imply the intent to take life, he might give a substance not known to him'to be naturally productive of an abortion, and hence to’ charge him criminally it would be necessary to aver knowledge. The fallacy of this argument as applied here lies in the fact that the statute has made it a crime to administer anything with intent thereby to procure an abortion or miscarriage, thus making the act and intent sufficient regardless of the character uf the substance administered. . Error is assigned on the refusal of the court to require a bill of particulars, and The State v. Reno, 41 Kan. 674, 21 Pac. 803, is cited as fixing the Kansas rule. That, too, was a misdemeanor case, and the court said a bill of .particulars might in the discretion of the trial court have been required, but that “such bill of particulars will be required only in cases where the indictment or information does not of itself definitely and specifically set forth the facts, but sets them forth only vaguely or in such general terms that the defendant could not well know what he is required to defend against.” (p. 679.) While some states do not recognize the practice at all, in most courts the requirement is discretionary. (The State v. Lindgrove, 1 Kan. App. 51; Rosen v. United States, 161 U. S. 29; Dunlop v. United States, 165 U. S. 486; 22 Cyc. 371.) In Mathis v. State, 45 Fla. 46, 34 South. 287, the supreme court of Florida gave an exhaustive review of the authorities, English and American, showing that the matter is one of discretion. No material abuse of discretion is apparent in this case. The defendant challenged and moved to quash the venire on account of certain alleged instructions given on the opening day of the term, two weeks' before the trial began. The examination of the panel on their voir dire does not appear and it must be presumed that they showed themselves qualified to sit in the case. It is contended, however, that the array were so influenced by the remarks of the court the first day of the term that they were in fact disqualified. The challenge was overruled, and it is necessary to consider the error assigned thereon. It appears that at the beginning of the term the court gave to all the assembled jurors an extended address touching the duties they were to enter upon, covering a wide field and including various oIh servations relative to the court’s previous experience in the trial of cases. In some respects it was a sort of fireside talk and in others a more formal chart for their admonition and guidance. The intention was stated “to make a few suggestions to the jury simply for the purpose of facilitating the trials that will come before us.” Suggestions were offered as to a hoped for acquaintance and mutual regard, the valuable experience about to be had, promptness in attendance, conduct in the jury room, secrecy of their proceedings, discussing the verdicts outside, sending for evidence or instructions to be reread, the desirability of agreeing and the unwisdom of stubborn contention, certain expected interrogations concerning their connection with the Anti-Horse Thief Association, the effect on their minds of a complaint or information already made in • a given case, their duty to come to no decision until all the evidence and instructions were in, their being a constituent part of the court as much as the judge, the bore of numerous special questions and their duty nevertheless to answer them correctly, the avoidance of quotient verdicts, the propriety of refraining from reading newspaper accounts of trials on which they were sitting. Of these no complaint is or could justly be made. During the address, however, the following statements were made, of which the defendant bitterly complains: “Some of these attorneys who are interested in some of these criminal cases and are representing some defendants are pretty jealous of the defendants’ rights, as they call them, and they probably want to know if the court is saying anything at this time that may possibly prejudice the rights of their defendants, so iii case their defendants happen to be convicted they might lay the "foundation for error, you know, to the supreme court; so they have the habit, sometimes, of sending stenographers up here to take down what I am saying to you gentlemen now, and they are perfectly welcome to do so. I -have no objection whatever. I will say nothing except absolutely in the interest of justice. I want every defendant who is charged with a crime to have an impartial and fair trial, but I do not believe it is the right of any lawyer to go beyond reasonable lengths to acquit a guilty person. They have the right to the best defense they can. But when they are guilty they ought to be convicted when the state makes a case beyond a reasonable doubt; and, as I say, any lawyer is welcome to all I have got to say here to you gentlemen, or any other time. And if there is anything improper in any of my remarks I am ready to meet that issue when it is raised, but I do believe it is my.duty to make such suggestions as I feel are right, for the purpose of working out justice in this case. “I never, in my life, have seen but one man convicted in this court room that I had any reason to believe that he was not guilty. There was one such person convicted and he got a new trial, and he was not convicted again; and you men need not be afraid to put a little bit of responsibility on the court, and if you should happen to go wrong, remember that in all these trials there are thirteen men who compose the jury — twelve in the box and one who sits up here, and before your verdict can become final and fixed the thirteenth juryman, who sits up here, must coincide with your views ; so you need not get scared in these matters, and if you go very far wrong there is still a way to correct that wrong. . . . And my experience has taught me that there are more than one hundred guilty men who escape to one innocent man convicted. Now that is putting it pretty strong; since! have been here on the bench I have seen several hundred convicted, and with one exception — now it is better than eight years — with one exception I have never seen but one person convicted that I thought was innocent. And as I said before that person got a new trial and was never tried again. But I would rather lose my arm than to send to the penitentiary a person whom I believe innocent. I don’t believe it is possible for a situation to arise where it would become the duty of a judge to send to the penitentiary a person whom, in his heart, he. believed innocent. I would not do it under any circumstances, and I would absolutely detest a judge who would be so heartless and so inhuman as to sentence to the penitentiary a- person whom he believed innocent. I don’t care if he had been convicted a dozen times by a j ury. I think when a person is convicted by a j ury, whom the judge feels in his heart is innocent, he should grant a new trial and keep granting a new trial until that person is discharged or declared not guilty. But I have never seen a jury do that but once. I have seen many a person turned loose when I felt down in my boots that he was as guilty as sin. And the jury found otherwise and the state may have fallen down in its proof— wasn’t able to show to the jury beyond a reasonable doubt — and the jury turned him loose, notwithstanding that the judge of the court had an entirely different opinion of it; but, on the other hand, I do say that if the state proves the guilt of a defendant beyond a reasonable doubt that the public has some right, just as well as the individual, and it is your duty as jurors to see that the rights of the public are protected, as well as the rights of the individual. There are two sides to these criminal cases. The public has got some rights. But I do not apprehend you will have any trouble along these lines.” It is urged that this proceeding was to the material prejudice of the defendant and in violation of the statute prescribing when and how instructions shall be given. The three cases relied on principally to support the claim of error are State v. Wright (Mo. App. 1912), 144 S. W. 175; Green v. State (Miss. 1910), 53 South. 415; and Jones v. State (Tex. Crim. App. 1899), 51 S. W. 949. In the Wright case .the judge, on sustaining motions for change of venue, delivered a long address, in the presence of the panel, against the practice of making such motions and in effect charging the defendants and counsel with falsely claiming prejudice as an excuse for delay. This was held by the court of appeals to render the panel incompetent to sit in the trial of the cases in which such applications had been made, another judge having been called in to try such cases, although each juror stated that the address had not influenced him to the prejudice of the defendant. In Green v. State, supra, the judge, during the trial, sent for'additional jurors and instructed the deputy sheriff to summon young men as talesmen, stating, “We want to break this nigger’s neck” (p. 416), referring to the defendant on trial. The accused exhausted his peremptory challenges before reaching the talesmen who had heard this remark, and it was held that a new trial ought to have been granted. In the Jones case, on appeal from a conviction of assault with intent to murder, it was shown that on the day the jury were impaneled, and before the trial of any case began, the court called all the jurors to the same side of the bar and gave them a verbal charge as ,to their duties. Their attention was called to the law of reasonable doubt, because, as stated, the law restricted the court from giving it in particular cases as they arose. Among other things said by the court were the following : “I don’t think I ever saw an innocent man convicted. We hear of them now and then way off, but, like the bag of gold at the end of the rainbow, when we approach they vanish. Now, I believe, and I think every right-thinking man thinks with me, that it is better that an innocent man be convicted now and then than that ninety-nine bloody murderers, burglars and robbers be turned loose upon the country. This doctrine of reasonable doubt, as urged by shrewd lawyers in this state, has no application, and should have no weight with jurors.” (p. 950.) ' The famous hip-pocket defense in homicide was denounced, and it was said: “If the innocent man is convicted, he can appeal to the higher courts and get his case righted. ... I charge you to recollect these matters, a-nd be guided by these general instructions in the trial of each and every case that shall be submitted to you in which such matters will arise, and hope that your conduct as jurors will conform to them; and if you, as jurors, are guilty' of any improper conduct, I will give you notice right now that the one or ones so guilty will be fined not less than one hundred dollars, and the. one so fined will not get it remitted.” (p. 950.) This language was severely censured by the appellate court, but for various reasons given it was held not to be materially prejudicial. Those who have had experience trial judges know how much easier it is to criticise their conduct and rulings than to perform their arduous and perplexing duties free from error. The address in question contained many practical and commendable suggestions to the men about to enter upon duties new and in a degree mysterious to them, and while we think the concededly able and admirable trial judge crowded the danger line in some of the quoted remarks, which should have been omitted, we are not convinced that all of those made, taken together, precluded those to whom they were directed from heeding and following proper instructions in a criminal case tried two weeks later. We have carefully examined each complaint touching the admission and rejection of evidence and find no prejudicial error or necessity for discussion in any save two, which will now be’ noticed. The theory of the state was that the father brought his daughter to the defendant to be relieved of a trouble which he had caused. The defense was that she was brought merely for proper care during confinement. No further reference than necessary will be made to the revolting matters testified to by various witnesses. The girl, who was fifteen years old, had stated that her brother was the cause of her condition, and upon the trial she stated that she did not know but thought it was the brother. She was then asked if any one else had intercourse with her along about that time and answered yes, that her father had. The defendant argues that the only purpose of this testimony must have been to show that the father brought the daughter to the defendant’s place for the purpose of having an abortion committed. But if such were the purpose and the fact it would be competent as bearing upon the knowledge and intent with which the defendant received the girl, and it was not error to receive the -statement. The other matter concerns an attempt to show that the defendant, who was a registered midwife, made out and transmitted a birth certificate after the child was born. The defendant testified that the birth occurred Monday morning, December 11, and that on the following Thursday morning she made out the certificate. Her attention was then called to “Exhibit D,” purporting to be a printed certificate signed by the defendant stating that Goldie Veres Chadwick had given birth to a child named May Belle Chadwick, father Sylvester Chadwick. The blanks for names of county, township and city were not filled out, but the number “2528 E. Second Street” would seem to indicate the location of the defendant’s place. It also purported to bear the signature of William Sence, registrar, and to it was added or attached his certificate that it was a true copy of the one on file in the office. This exhibit was objected to as' incompetent, irrelevant and immaterial, no proper foundation having been laid, and also as a self-serving act on the part of the defendant. Upon sustaining the objection it was stated that it was desired to show by this certificate that on the second or third day after the birth the defendant filed with the city clerk of Wichita the certificate of birth marked “Exhibit D,” and to offer a copy thereof certified by the city clerk, and to show that the city clerk sent the original to Topeka where it then was. A similar objection to the one last made was sustained to this statement or offer. The defendant was then asked if she reported the birth to the city clerk, to which an objection, was sustained. An offer was then made to show that she reported to the city clerk the time of the birth, the name of the mother, the name of the father, the day of the birth, the sex of the child, which was objected to, whereupon the prosecutor, was asked by the court if he waived the objection that it was not the best evidence, and replied that he objected on that ground. The objection was sustained.' The city clerk was put upon the stand but not permitted to testify to receiving the certificate, or, rather, his statement that he remembered the defendant’s sending him one was stricken out and the jury admonished not to consider it. In was then attempted to be shown by this witness that about the 17th or 18th of December the defendant mailed to him a certificate of which “Exhibit L” was a copy, that he filed it and then forwarded it to Topeka. This exhibit was certified by the state registrar as a true copy of the original on file in his office and purported to show that at the county of Sedgwick, city of Wichita, No. 2528 E. Second Street, Goldie Veres Chadwick gave birth to a female child, May Belle Chadwick, father Sylvester Chadwick, white, farmer, Sawyer, Kan., and that it was born alive, 4:50 A. M. “Filed 12/26/1911, Wm. Sence, Registrar.” This was also excluded. One peculiar thing about these documents printed or photographed in the record is that the latter gives the date of the birth as “Nov. 11, 1911” and the former “Nov. 11, 1912.” Section 10 of chapter 296 of the Laws of 1911 makes it the duty of a midwife to file a certificate of birth, according to the rules and regulations of the state board of health, with the local registrar within ten days after the date of the birth. The state registrar is required to permanently preserve the returns received monthly from the local registrars, and upon request to furnish a certified copy for the prescribed fee. Such certified copies are by section 369 of the civil code made receivable in evidence, with the same effect as the original, without proof that the original is not in the possession or under the control of the party desiring to use it. It was error, therefore, to exclude “Exhibit L” as not the best evidence. There was a dispute as to whether the child in question was the one exhibited in the court room, and whether Goldie Chadwick’s child was born naturally or prematurely. It seems to be the theory of the state that the child was in fact made way with immediately after the mother was delivered, and considerable testimony touching the matter was given. It is now argued by the state that the certificate was not part of the res gestse. Possibly not, but it was proper evidence bearing upon the question whether the defendant had pursued the natural and proper official conduct of - a registered midwife acting bona fide and not seeking to cover up an attempted abortion, and she was entitled to show that she obeyed the requirements of the law touching a certificate of birth, and it would have been, for the jury to say what her motive was in so doing. The charge and much of the evidence were of a character naturally to breed indignation in the hearts of the triers, and for that reason it was more than ordinarily essential to a fair trial that the defendant be permitted to show what she did respecting a public record of what she claimed to have been a natural birth. What the defendant did in her professional capacity before, at and after the birth was proper to be shown, so that the jury could be informed as nearly as possible as to her entire part in the matter and the purpose which actuated her. The instructions were admirably clear and correct in respect to all matters covered, but no mention was made of the familiar rule as to circumstantial evidence when circumstances alone are relied on for a conviction. Instruction No.- 12 requested by-ithe defendant embodied the rule; and instruction No. 13 contained an elaboration thereof, so that the attention of the court was thus doubly called to the matter. While the circumstances were shown by direct evidence the guilt of the accused depended alone on the interpretation and probative force of such circumstances, thus making the case one to which the rule in question was applicable, and it should have been given. (Carl Horne v. The State of Kansas, 1 Kan. 42; The State v. Fry, 40 Kan. 311, 321, 19 Pac. 742; The State v. Andrews, 62 Kan. 207, 61 Pac. 808; The State v. Gereke, 74 Kan. 196, 86 Pac. 160; The State v. Link, 87 Kan. 738, 125 Pac. 70.) In the argument of the case to the j ury the county attorney said that when the defendant told them that she did not know how to perform- an abortion she committed willful and corrupt perjury; that unless they -showed consideration for the prosecuting witness it would be but little use to try to convict any woman or man, and speaking of the accused said, “Will you turn her loose to practice her beastly profession upon the people of the state of' Kansas?” Of course, theoretically, counsel for both sides should with fairness present their cause free from: personality and vituperation. But, actually, things are: not- always done thát way. The writer knows - front personal experience the dynamic and explosive forcefulness with which counsel for the defendant sometimes pursues the prosecution and the prosecutor, and it is too much to expect the latter to assume the role of a lamb when assailed by the roar of a lion. Again, if in any case a witness does in fact commit unquestioned and palpable perjury no rule of law precludes cpunsel from using Saxon language in calling the attention of the jury to What they have already observed and heard. Usually such matters may be and are controlled by the trial court, who knows better than we can the provocations and limits which, should be considered and observed. The rule as stated in The State v. Baker, 57 Kan. 541, 46 Pac. 947, The State v. Hinkley, 81 Kan. 838, 106 Pac. 1088, and The State v. Olsen, 88 Kan. 136, 127 Pac. 625, does not warrant the holding that error materially prejudicial to the defendant was committed in this respect. Finally, it is argued that the court erred- in denying the motion and supplemental motion for a new trial. We find no showing of diligence as to the first, and in support of the second an affidavit of the accused stated that the prosecuting witness, after this trial, in a case against her father, testified in another county against him, but after, his conviction she made the statement that her testimony given in the trial of this case in relation to the defendant was-.false. The' court'considered both motions but deemed them and the showing made insufficient, and in this we agree. (The State v. Lackey, 72 Kan. 95, 82 Pac. 527.) : The court is of the opinion that the certified copy of the certificate of birth should have been admitted, and •that the jury should have been instructed as to circumstantial evidence, and that, considering all things shown by the record, the defendant is entitled to a new trial. The judgment is therefore reversed afid a new trial ordered.	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The opinion of the court was delivered by Burch, J.: The action in the district court was one to enjoin the execution of a money judgment rendered against the plaintiff, O’Neil, and in favor of the defendant, Eppler. The relief prayed for was denied and the plaintiff appeals. The judgment which was assailed rests upon a summons issued by a justice of the peace of Ellis county and returned by a constable as served on July 5, 1910, by leaving a copy at the usual place of residence of the plaintiff with his,wife. The copy was in fact left at the residence of one Morton in the city of Ellis, and the contention was that the Morton house was never the residence or usual place of residence of either the plaintiff or his wife. The plaintiff and his wife formerly resided in their own house in Ellis. In February, 1909, they sold this house but rented it from the purchaser and continued to occupy it until September, 1909. The plaintiff then went to Parsons where he secured employment in a hardware store, and his wife went to the country to teach a school some seven miles from Ellis. They stored their household goods at the Morton house, the consideration being that the Mortons should have the use of the piano. In February, 1910, the plaintiff became the representative of a threshing machine company and established headquarters at Smith Center, his territory comprising several northern counties not including Ellis. On the last of June or the first of July, 1910, he rented two rooms in a house in Smith Center, paying the rent in advance for July. On the first or second of July his wife joined him and they kept house, doing light housekeeping and sometimes taking their meals out, until the latter part of August, when the plaintiff’s company sent him to Canada. His wife went to Hiawatha and that winter taught school in Brown county. Since September, 1909, the plaintiff has not resided in Ellis county and previous to the pretended service of summons on July 5, 1909, was never in the Morton house. Before going to Smith Center Mrs. O’Neil stayed at the Morton house for a number of days packing the goods for shipment and she did sewing for Mrs. Morton for about a week, but she did not make Morton’s her home and was not there on the 5th day of July. She did not take the household goods with her when she went to Smith Center although they were boxed for shipment, except the piano, because it was then uncertain whether or not her husband would be called away on his company’s business. The trial court found generally for the defendant without indicating its views as to either the facts or the law, and the defendant has not seen fit to aid the court either by brief or oral argument. The statute reads as follows: “Twenty-third. The term ‘residence’ shall be construed to mean the place adopted by a person as his place of habitation, and to which, whenever he is absent, he has the intention of returning. When a person eats at one place and sleeps at another, the place where such person sleeps shall be deemed his residence. “Twenty-fourth. The terms ‘usual place of residence’ and ‘usual place of abode,’ when applied to the service of any process or notice, shall be construed to mean the place usually occupied by a person. If such person have no family, or do not have his family with him, his office or place of business, or if he have no place of business, the room or place where he usually sleeps shall be construed to be such place of residence or abode.” (Gen. Stat. 1909, § 9037.) . It is quite clear that the plaintiff had no residence, usual or otherwise, at the Morton house in Ellis at any time. He did not adopt it as his place of habitation in any sense of the word. His wife’s presence there was for transient and temporary purposes only, and the place was not the settled abode of either of them where they intended to remain permanently even for a time or to which-they expected to return to live when absent. In the light of the statute Smith Center was the plaintiff’s residence from the time he established headquarters there, in February, 1910, until after the summons was returned, and while his wife was with him the rented house in Smith Center was his usual place of residence. The plaintiff claimed in his petition a meritorious defense to the cause of action upon which the judgment was founded. The paragraph of the petition stating this claim was in effect stricken out (a so-called demurrer to it by the defendant was sustained), probably because it was regarded as too general in its allegations, but this court regards it as sufficiently specific for the purpose for which it was inserted. The service upon which the judgment rested was a nullity, and the judgment was not merely voidable but was void. Under these circumstances there were no equities in favor of the defendant, and the plaintiff was required to do no more than make a fair showing that he was not simply delaying j ústice by compelling the defendant to resort to regular procedure. He was not obliged to try out the merits of his defense in the injunction suit. (True v. Mendenhall, 67 Kan. 497, 73 Pac. 67.) The plaintiff made an assertion of facts in his petition sufficient to satisfy the requirements which equity imposed upon him. After the paragraph in question was eliminated no further objection was made to the petition and the case was tried as if the only matter in issue were the validity of the judgment. Therefore the defendant can not in justice ask that the cause be remanded and that the plaintiff be called upon to prove what he stood ready to prove at the trial. The judgment is reversed and the district court is directed to render judgment for the plaintiff.	[ -16, 108, -72, -82, 42, -32, 42, -40, 96, -127, -96, 115, -23, 86, 17, 105, 42, 13, 85, 105, -58, -77, 23, -29, -48, -13, -23, -43, -67, 92, -12, -42, 73, 48, 74, -107, 70, -62, -59, 20, -114, -92, 41, -6, 121, 0, 60, 59, -106, 74, 101, -113, -13, 42, 92, 67, 108, 45, -37, -69, -16, -8, -78, -123, 109, 22, -111, 33, -118, -121, -56, 14, -100, 17, -128, -23, 114, -90, -106, 116, 81, -119, 44, -90, 98, 0, 13, -17, -88, -104, 14, -2, -99, -26, 6, 88, -86, 105, -66, -103, 125, 84, 11, 126, -17, 21, 28, 108, -113, -34, -42, -79, -113, 56, -127, 1, -29, -121, 52, 113, -51, 35, 92, 70, 122, 59, -113, -8 ]
The opinion of the court was delivered by West, J.: The peculiar facts of this case appear to call for the application of an ancient maxim of the law. In 1888 Mitchell entered the land in controversy and in October he conveyed it to one Rosebury, whom he never saw afterwards. In September, 1893, the land was sold for taxes and a tax deed, void on its face, was issued to Gilbert, from whom, through mesne conveyances, defendant Austin holds, having paid $800 for his interest. Austin went into possession by tenant and proceeded to put upon the land lasting and valuable improvements. Rosebury’s deed was never recorded, and in 1903 an owner of the present Gilbert interest quieted his title against Jesse P. Rosebury and Mrs. Jesse P. Rosebury, his wife. Whether or not this is the same Rosebury to whom Mitchell conveyed is not known. September 9, 1911, the plaintiff, Chandler, wrote Mitchell that he had recently sold this land, but finding that Mitchell had a slight cloud upon its title, to remove which would cost about $15, and preferring to pay this sum to Mitchell rather than spend it for court fees, a deed was inclosed for execution and return to a bank, which would remit the money. A clause had been inserted in the instrument stating that Mitchell had never conveyed the land by deed to any one, but thinking better of it, Chandler erased this clause before forwarding the deed. Shortly after receiving this deed, executed by Mitchell, Chandler brought this action in ejectment and testified that when he secured the deed he knew there was an outstanding tax title, but that it was invalid, and that'the tax lien would be in the neighborhood of $55 or $60; that he did not examine the land or converse with Austin’s tenant thereon, and was not sure he had ever seen the land; that he had been interested in some 200 or 250 quarters and had been looking out for snaps. The defendants took the position in the court below that Chandler had in law been assuming to straighten up the title, and had expended $15, and that, having acted ex mero motu and also ex maleficio, he ought to be deemed a holder for the real owner, who, in order to do equity, offered to pay the $15 into court for Chandler’s benefit, which by order of the court was done. The plaintiff appeals from the judgment, which was adverse to him, and contends that as the Rosebury deed was never recorded he therefore received a conveyance from the record owner which is good as against a void tax deed; that it can not be assumed or presumed that the Rosebury against whom the title was quieted was the same Rosebury who purchased from. Mitchell, and that Austin paid out his money with his eyes open and should not be permitted to prevail. . The defendants maintain that as Mitchell had no title, he could convey none to Chandler; that his original title had been barred by the decree, and that the conduct of the' plaintiff constitutes him a trustee for the defendants. Without endeavoring to consider in detail these various suggestions, we deem it sufficient to say, and we hold, that the plaintiff has brought himself clearly within the maxim that one can not maintain an action based upon his own turpitude. The judgment is affirmed.	[ -16, 122, -100, 30, 26, 96, 10, -104, 105, -63, -94, 95, -23, -62, 4, 37, -25, 45, -47, 106, -58, -77, 22, -93, -46, -13, -101, -35, -75, -52, -11, 87, 76, 36, -54, 21, 103, 66, 69, 80, -114, 5, 40, 76, -47, 64, 52, 63, 32, 77, 81, -97, -13, 44, 21, 99, -84, 40, -37, 57, 16, -8, -82, -108, -35, 19, -111, 37, -8, 1, -22, 8, -112, 21, 0, -24, 115, -90, -122, -12, 13, 25, 13, 32, 102, 1, 109, 107, -8, -104, 15, -9, -99, -90, -106, 88, -87, 65, -76, -97, 116, 20, 39, 114, -25, -103, 29, 108, 20, -117, -42, -109, -113, 44, -98, 66, -33, 3, 48, 96, -49, -52, 92, 103, 112, -101, -113, -4 ]
Per Curiam: The petition for rehearing in this case asserts that the case was decided upon a misstatement of facts established by the evidence. We have examined the opinion and the abstracts and find that two recitals of fact in the opinion are inaccurate, but that the decision of the case in no way depended upon either of them. On the other hand, the petition for rehearing is inaccurate as to some very material facts as shown by the abstracts. The report of the viewers on the laying out of the road omitted any reference to damages. In a subsequent report they assessed the damage to appellant’s land at $250, which was allowed by the board of county commissioners. From this allowance Wilson appealed. He could have as well appealed from the refusal to allow any damages. The amount of damages is immaterial. The decision is plainly based upon the point that the appellant can not in the same court at the same time claim in one action that his land has been appropriated for a public highway and demand damages therefor, and in another action claim that the land has not been appropriated and seek' to enj oin the board of county commissioners from opening a public road thereon. Whether the hearing of the application for a temporary injunction was submitted on evidence taken on a motion to stay proceedings or on a motion for a temporary restraining order is also immaterial and in no way affected the decision. The petition for rehearing is denied.	[ -16, -20, -11, -84, -54, 32, 56, -118, 73, -95, -9, 115, -81, -54, 4, 43, -26, 111, 116, 107, -42, -93, 86, -61, -10, -13, -5, -33, -79, -50, -28, 116, 76, -76, -54, -43, 102, 40, -59, 82, -114, -121, -103, 77, -39, -64, 52, 127, 88, 79, 113, -97, -29, 44, -103, -61, -87, 44, 91, 57, -47, -8, -100, 21, 91, 5, -79, -12, -100, 39, -40, 42, -112, 49, 17, -8, 115, -90, -106, 84, 107, -71, 8, -26, 103, 17, 109, -33, -8, -104, 6, 86, 15, -92, -105, 24, -55, 97, -73, -97, 116, 82, 78, 126, -18, 13, 95, 108, 7, -54, -80, -79, -49, 56, -120, 65, -25, -127, 16, 113, -59, -14, 92, 97, 83, -37, -113, -127 ]
The opinion of the court was delivered by Benson, J.: The plaintiff sued for an installment upon a fraternal benefit certificate upon the life of her deceased husband. The defense is based upon the alleged falsity of answers in the application for the certificate and breach of conditions prescribed in the bylaws of the association upon which the certificate was issued. The defendant in its answer specifically alleges that the applicant’s health became impaired by Bright’s disease and ' that he died of that disease. Fraudulent concealment of material facts is also pleaded. The application contained a statement that the answers to the questions “are warranties upon which the certificate will be issued or refused.” The following questions and answers appear below the statement : “Q. Have you ever nad loss of consciousness? a. No. “Q. Have you had any illness, constitutional disease or injury that has confined you to the house during the past five years? If so, give particulars. A. A year ago, yes, had; uremia — Dr. J. F. Hassig, Kansas City, Kansas, pronounces him cured — I find no trace myself.” Below the answers ¿ppears an express warranty of their truthfulness, and an agreement for forfeiture of the certificate in case of a false statement or concealment. A by-law of the association contained the following clause: “Should a member die or become permanently and totally disabled as a result of consumption, cancer, Bright’s disease, heart disease, or other chronic or hereditary disease, within twelve months from the date of the acceptance of his or her certificate, or should such a disease develop so as to impair said member’s health within twelve months from the date of the acceptance of his or her certificate . . . then in such case his or her beneficiary certificate shall become null and void and of no effect, and no person shall be entitled to receive any benefits thereunder.” It was provided in the certificate: “That all the conditions named in this certificate are and shall be subject to the statements made in his or her medical application for membership, . . . which statements are hereby warranted to be full, complete and true, and made a part of this contract, together with all the provisions contained in the Constitution and Laws of this Association.” A written acceptañcé of the certificate, signed by the applicant, contained a warranty that he was in sound bodily health and a waiver of benefits if the, warranty was not literally true. The certificate was issued October 8, 1910, and Mr. Green died January 24,1911. The word “him” was used inadvertently by the medical examiner of the association in writing down the answer to the second question copied above instead of the word “me” used by the applicant. The statement “I find no trace myself” is that of the examiner; the applicant said nothing to that effect. In the month of March, 1910, Mr. Green was ill from uremia, for which he was treated by Dr. Hassig, and was at that time unconscious for five or six days. The medical examiner who wrote out the answers in the application testified that she applied the appropriate tests for the ailments referred to, and that the words “I find no trace myself” was her own statement. Dr. Hassig, a witness for the defendant, testified that he treated Mr. Green for uremia in March, 1910; that he saw him for five or ten minutes j ust before his death, and that he died from uremia, which he testified was a symptom of Bright’s disease. He testified that a medical examiner, by making the proper tests, could determine whether a person had any symptoms of uremia or chronic nephritis, and that the test applied by the medical examiner was one of the best known tests for uremic symptoms. Dr. Hassig also testified that he had not told Mr. Green that he was or was not cured of uremia. The relation of uremia to Bright’s disease was stated by the same witness in the following answers: “Q.. Doctor, I will ask you to state if there is any difference between Bright’s disease and nephritis? A. There is n’t any. “Q. What is the medical term? A. The medical term is nephritis, and the common term Bright’s disease, and it means an inflammatory condition of the kidneys. “Q. The term ‘uremia’ is what? A. A symptom. “Q. Would that be a symptom of chronic nephritis? A. Yes, and uremia is a symptom of kidney disorder. It is a fatal disease. ... “Q. Can a person die from a symptom? A. Uremia is a symptom of Bright’s disease, and they die of uremia, so I would say that was one symptom from which a person would die.” In answer to special questions the jury found that Asa Green had uremia seven months before the application for insurance, and was treated and sent to the' hospital for that disease by Dr. Hassig in March, 1910, but that his health was not impaired by Bright’s disease within one year after he accepted the certificate and that he did not die of that disease. It is insisted by the defendant that the evidence conclusively proves the impairment of health, and death, from Bright’s disease; and that its request for an instruction to find for the defendant should have been granted for that reason. There was competent evidence, however, tending to prove that at the date of the application Mr. Green was not afflicted with uremia, although he had previously been treated for it. The opportunity of Dr. Hassig to determine the cause of death was limited to a hasty examination made in the last few minutes of life and his treatment and observation of the patient- about seven months before. A post-mortem examination was not made. In this condition of the evidence it can not be said that deáth or impairment of health from Bright’s disease within one year from the date of the application was conclusively shown. The fact that the medical examiner of the defendant, applying the best tests, found no trace of the disease, although her attention was called to previous medical treatment for uremia, is certainly some evidence that the disease did not exist. Dr. Hassig, and Dr. Newkirk, the medical examiner, were the only medical experts examined at the trial. The applicant, as we have seen, stated that he had never lost consciousness, while his wife, the plaintiff, testified that he had been unconscious the previous March from Thursday to the following Wednesday. Full arguments have been- made on the question whether this answer should be treated as -a warranty, which being untrue avoids the policy, or whether it should be treated as a representation, which would not have that effect if made in good faith. The. plaintiff cites the opinions in Insurance Co. v. Woods, 54 Kan. 663, 39 Pac. 189, and Moulor v. American Life Ins. Co., 111 U. S. 335, to sustain her contention that because the answers in the application are referred to as statements in the policy they should be treated as representations only. Much consideration has been given to this distinction in the adjudicated cases. In the Moulor case it appeared that the warranty expressed in the application was not carried into the policy, but the statements were there referred to as representations. The court said that this led to a doubt as to the intention, which should be resolved against the insuring company whose language must be interpreted. In this case, however, the warranty is not only made in the application, but is earriéd into the certificate in these words: “Which statements [referring to statements in the application] are hereby warranted to be full, complete and true, and made a part of his contract.” Thus the warranties made in the application are repeated in the policy. The contract so made must be enforced unless the warranties relating to uremia and unconsciousness should be considered as waived because of his statement in the application that he “had uremia a year ago.” The applicant stated the truth concerning this previous illness, except as to the time, and it will be noticed that he was not asked to give the particular date. The question referred to the past five years, and the time named in the answer was within that period. This, with the added particular that “Dr. J. F. Hassig, of Kansas City, Kansas, pronounces him [me] cured,” afforded the association the ready means of learning further particulars if desired. No purpose of evasion appears in this answer. In view of the disclosure by the applicant of illness from, and treatment for, this disease, not only within the five-year period covered by the question, but within one year, the association was put upon its guard. As the question did not call for a precise date, it must be presumed that the time was not deemed important, if within the period named in the question. That part of the answer referring to the time of the illness was superfluous. (1 May on Insurance, 4th ed., § 166; Dilleber v. Home Life Insurance Co., 69 N. Y. 256.) The reply pleads knowledge of the company that the deceased had been ill from the disease referred to, and waiver of the conditions relating to it. This knowledge, as we have seen, is shown by his answers. Unconsciousness is an ordinary incident of the disease; it is, according to defendant’s expert evidence, a manifestation of uremia. The association having been informed by the answer of the applicant of the illness from uremia, is chargeable with knowledge of its usual manifestations if they be important. The association issued the certificate after being informed by the applicant that he had been ill from uremia within a recent period, and had been treated for that disease. Whatever may have been the cause of its disregard of the warning given in the application, it must be held to have waived any condition of forfeiture based on the effect of an ailment thus plainly stated in the application. There is a time to every purpose, “a time to keep silence and a time to speak.” Having accepted this risk and issued the certificate with the information concerning this disease given in.the application, the association is now estopped from insisting upon a breach of any warranty that the applicant had not been afflicted with the disease referred to, or that its ordinary manifestation of unconsciousness had not existed. (Insurance Co. v. Davis, 59 Kan. 521, 53 Pac. 856.) “Insurers may, and often do, find themselves in such a position that they can not avail themselves either of ■a breach of warranty, of of a misrepresentation or concealment. ... To deliver a policy with full knowledge of facts upon which its validity may be disputed, and then to insist upon these facts as ground of avoidance, is to attempt a fraud. This the courts will neither aid nor presume; and when the alternative is to find this, or to find that, in accordance with honesty and fair dealing, there was an intent to waive the known ground of avoidance, they will choose the latter.” (2 May on Insurance, 4th ed., § 497.) It need not be presumed in this case that a fraud was intended. It should rather be supposed that reliance was placed in the opinion of the medical examiner appended to the applicant’s statement. The theory upon which an insurance company is held to be estopped from insisting upon a defense based upon conditions of which it was aware when it accepted the risk is fully stated, with citations of many authorities, in 16 L. R. A., n. s., 1213-1222. The annotator observes, at page. 1213, that the distinction between waiver and estoppel in such cases does not seem to be of importance. The two principles are properly considered togethei", for waiver of a condition works an estoppel against its assertion. The volunteer statement of the applicant that Doctor Hassig had pronounced the applicant cured was not shown to be untrue, although the doctor testified that he had not told Green that he was cured, for Green did not say that he had. The pronouncement referred to by the applicant in answer to the question may have been made to his family or to others. A breach of the warranty is not shown. Warranties in such cases are strictly construed. (Dilleber v. Home Life Insurance Co., 69 N. Y. 256, 257.) An instruction informing the jury that the policy would be avoided if material statements were found to be untrue is criticised because of the limitation arising from the use of the,word “material.” In another place, however, the jury were told that if Green was not in sound bodily health when the application was made the policy was void, and also that it was. void if he died of Bright’s disease within twelve months from the acceptance of the certificate. It. is doubtful whether this reference to material statements, considered in connection with the whole charge prejudiced the substantial rights of the defendant; but with-' out deciding that question it must be held, in view of' the findings of the jury and the conclusion reached upon the matters of waiver and estoppel;‘that the error, if any, is immaterial. Error is also assigned upon the refusal of an instruction that impairment of health from Bright’s disease within twelve months from the acceptance of' the .certificate made it void. Any supposed error in this ruling is made harmless by the finding of the jury that the applicant’s health was not so impaired. Reference was made in the briefs to the effect of' section 4200 of the General Statutes of 1909, relating to misrepresentation in obtaining insurance, and also to the effect of section 4303 of the same compilation purporting to exempt fraternal beneficiary associations from the provisions of other insurance laws, but it is not deemed necessary to the decision of this case to-determine the effect of the statutes referred to. The plaintiff presented a question of practice, contending that as the installment claimed and the judgment rendered did not exceed $100 this court is without jurisdiction to review the judgment. (Civ. Code,. § 566; Richmond v. Brummie, 52 Kan. 247, 34 Pac. 783.) This limitation, however, only applies to actions, for the recovery of money. The defendant pleaded a. forfeiture of the certificate and prayed for cancellation. The defendant was entitled to a review of the judgment which is adverse to the counterclaim. The judgment is affirmed.	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The opinion of the court was delivered by Benson, J.: While this action was pending upon a petition for a rehearing the defendant filed depositions in this court tending to prove that W. H. Caldwell, the insured, was still living. On consideration of this evidence the- petition was granted so far as to allow a rehearing upon the question whether a new trial should be granted of the particular issue relating to the death of the insured. The parties were thereupon given leave to- file further evidence in this court on that question. The defendants have filed depositions accordingly, tending further to prove that Caldwell is still living, and that he had recently visited his family at Hutchinson. No evidence to the contrary has been presented. The plaintiff objects to the consideration of this evidence, as beyond the. jurisdiction of this court, and also insists that the defendant did not exercise proper diligence in discovering and producing it at the trial. It is also contended that the time’ for trying the issues of fact has forever passed and that the fact that W. H. Caldwell was dead before this action was commenced is conclusively determined. The situation is extraordinary. The plaintiff, relying upon the presumption of death after an unexplained absence for over seven years, obtained a verdict and judgment based upon the fact of death so determined. That judgment was affirmed. (Caldwell v. Modern Woodmen, 89 Kan. 11, 130 Pac. 642.) The petition for rehearing, however, was still pending when the discovery was made of this new evidence showing prima facie that the finding was untrue.. Whatever might have been the result-had the petition for rehearing been previously denied, in the present situation the court has jurisdiction to grant or refuse a new trial. This court can not determine, it is true, from the new evidence the question whether Caldwell is living. If that issue is to be retried it must be retried in the district court, but in the exercise of its appellate jurisdiction this court may, and in the very unusual situation presented should, in order to prevent a, failure of justice, consider the new evidence, in determining whether a new trial of that issue should be granted. This evidence, uncontradicted as'it is, shows that a mistake was made in a finding of a fact essential to support the judgment. In view of the evidence presented at the trial and the whole situation it can not be held that the defendant is precluded from proving the fact that Caldwell is living because of its failure to discover and produce the evidence at the trial. It may be conceded that when the end'of orderly judicial processes is reached, an adjudication, although based upon mistake, is final. Still a miscarriage of justice will not be tolerated so long as the court by the use of such processes can apply a remedy. To the end that the truth may be determined and justice done a new trial will be allowed of the issue presented by the pleadings to determine whether W. H. Caldwell was alive when the action was commenced. To preserve to the plaintiff the fruits of the litigation in case that issue shall be determined in her favor the judgment will stand, although execution will be stayed until such determination is made, and if the issue shall be determined in her favor the judgment will then be enforced together with any additional judgment for accruing costs to which she may be entitled. If the issue is determined in favor of the defendant the judgment will be set aside and judgment entered, in its favor. The causé is remanded for further proceedings in accordance with these views.	[ 112, 104, -12, -97, 10, -32, 34, -6, 83, -95, 37, 115, -3, -37, 4, 123, 122, 27, 85, 107, -42, -105, 22, 25, -46, -14, 115, -41, -79, -37, -26, -2, 76, 42, 74, -43, 102, 72, -59, 90, -114, -116, -103, -28, 88, 80, 48, 105, -42, 27, 117, -98, -29, 42, 27, -61, 41, 44, 91, 61, -40, 112, -118, 7, -97, 1, 51, 38, -104, -17, 120, 63, -112, 49, 0, -4, 115, -74, -106, 116, 99, -71, 40, 102, 99, 33, 85, -17, -88, -104, 63, -82, 13, -90, -112, 104, -29, 36, -106, -99, 119, 116, 6, 124, -4, 84, 20, -76, 1, -113, -74, -79, -37, 56, -104, -102, -30, -123, 48, 113, -51, -30, 92, 67, 83, -71, -98, -112 ]
The opinion of the court was delivered by West, J.: The state, on the relation of the county attorney and the attorney-general, brought this action to remove the defendant from the office of treasurer of school district No. 63 of Wabaunsee county. In 1908 the defendant was elected, and having served out his term was reelected in .April, 1911. This action was brought in August, 1912, to oust for failure to give a proper bond. The defendant having failed to qualify, and his attention being called to the matter, he tendered a bond in July, 1912, in the sum of $8000, which appears to be about equal to instead of double the amount of money coming into his hands annually. Upon this instrument was an official oath executed by the defendant. Certain objections being made by the clerk to the form of the bond and to the justification, in addition to the sum named in the obligation, he refused to approve or file, although the director was willing to approve. In November, 1912, the defendant tendered another bond naming a penalty of $20,000 on which the sureties justified respectively in the sums of $10,000,- $4000 and $10,000, and the defendant in the sum of $5000, the obligation expressly covering the time since April 14, 1911. This the clerk refused to approve. A third bond was offered early in 1913, and rejected. The statute (Gen. Stat. 1909, §§ 5469, 7444) requires district officers, before entering upon their official duties, to take and subscribe an oath to faithfully perform such duties, and authorizes the chairman of regular and special meetings to administer such oath, but it does not require that it be placed on file. Section 7445 provides that any such officer who shall refuse or neglect without sufficient' cause to qualify within twenty days after his election or appointment shall thereby forfeit his right to the office, and the county superintendent shall thereupon appoint a suitable person in his stead. Section 7458 requires the treasurer to execute a bond in double the amount “as near as can be ascertained” to come in his hands as treasurer “during the year,” with sufficient securities, to be approved by the director and clerk, such bond to be justified by the affidavit of the principal and his sureties and to be filed with the district clerk. Section 7443 fixes the term at three years, and until a successor shall be elected and qualified. The, plaintiff contends that the default of the defendant in relation to giving a proper bond justifies an ouster, and that upon his holding over without qualification the sureties on his previous bond were not bound for any default occurring after the close of his original term, or at most for only a reasonable time thereafter, and that the failure to qualify had the effect of leaving the district unsecured for the funds in his hands. It is urged by the defendant that having continued to act and having been recognized for more than one year by the board, including the clerk, and having attempted to comply with the statute in July, and having tendered a sufficient bond in 'December, he can not be held to have forfeited his office, and that having held over, and no successor having been appointed and qualified, no one else has become entitled to the office, and that his tender of bonds before judgment of ouster should be deemed a good defense. • It is not claimed that failure without sufficient cause to qualify within twenty days creates a vacancy, but only that it forfeits the right to the office and justifies removal. Just what is meant by “sufficient cause” is difficult to determine, but mere carelessness or neglect to qualify for more than a year could by no process of reasoning be dignified as in any wise “sufficient.” The object of requiring prompt qualification is to secure the funds of the district in the hands of a sworn officer. But his failure does not of itself create a vacancy. He is entitled to notice and hearing before a forfeiture can be declared or a successor by appointment can be installed. (Jacques v. Litle, 51 Kan. 300, 33 Pac. 106.) In the case just cited it was deemed unnecessary to decide as to the power of the county superintendent to remove, and while it was stated on the argument that certain appointments were made in the case at bar there was no attempt by that officer to give any notice or provide for any hearing, and no appointee obtained possession of the office. We think the legislature intended that in case of a failure to qualify for more than twenty days the chief school officer of the county who has the power to approve should' likewise have authority to hear and determine, after proper notice, the sufficiency or lack of cause. It may well be supposed that in such a situation if the officer should tender á good and sufficient bond so worded as to cover the current term from its beginning, the county superintendent might deem it proper to permit the one chosen by the electors of the district to complete his term rather than to declare the office vacant and place his own appointee therein. The word “qualify” here includes taking an oath and giving bond. (The State, ex rel., v. Albert, 55 Kan. 154, 40 Pac. 286; The State of Ohio v. Neibling, 6 Ohio St. 40; The State, ex rel. Elliott, v. Bemenderfer, 96 Ind. 374; 7 Words and Phrases, pp. 5873-5875.) Anything found in Horneman v. Harlan, 47 Kan. 413, 28 Pac. 177, indicating a, contrary view may be regarded as unnecessary to the decision in that case. No reason is suggested why the $20,000 bond was not good and none appears from the record. Had it been approved the funds would have been amply secured, and while it is true that it was not tendered until some time after this action was begun, and while the defendant could not by this tardy act defeat the state’s action, still it does not follow that ouster is imperative. Conceding that the prolonged and needless delay on the part of the defendant'affords a legal justification for his removal, still it is manifest that his failure to qualify was not a studied one for the accomplishment of any wrongful object. When his attention was first called to the matter he attempted in a way to meet the requirements, and later did in fact meet them in all respects except that of timeliness. The director was away much of the time after the school meeting of April, 1911. No attempt appears ever to have been made by the clerk and director to fix the amount of the bond, and under all the circumstances it is not perceived that the defendant was actuated by bad motives or that the district which elected him could be benefited by his removal. This action, although brought by the state, should be considered largely with reference to the interests of the school district immediately involved. The remedy of quo warranto is one resting somewhat in judicial discretion, and a technical noncompliance with a statutory requirement does not necessarily and mechanically work an ouster. (The State v. Bowden, 80 Kan. 49, 57, 101 Pac. 654; The State v. Kennedy, 82 Kan. 373, 108 Pac. 837; 32 Cyc. 1434.) Assuming that a good and sufficient bond covering the entire term from April 14, 1911, will forthwith be furnished and approved, the relief prayed for is denied, subject to a summary order of ouster on a showing of the defendant’s failure to do as indicated.	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The opinion of the court was delivered by Porter, J.: This is an appeal from a judgment in plaintiff’s favor for injuries caused by the engine of a pasenger train, which plaintiff was intending to board, striking her as it pulled into the station at Hays. ■ The depot at Hays is on the north side of the track with the waiting room near the east end. The depot platform is 612 feet long, constructed of' gravel, and is level with the tracks. Fifteen feet west of the door of the waiting room a bow window extends part way across the platform, and against the south side of the window stands a signal post. West of the bow window the platform for a distance of 350 feet is 17 feet wide; east of the window and in front of the door of the waiting room it is 19 feet wide. Between the window, and signal box and the north rail of the track the width is 7 feet 8 inches; and by reason of the fact that locomotives extend over about 27 inches,.the platform space at this point which is safe for travel is less than five feet. At the time the accident occurred there was no mark or notice to indicate the point of danger from moving trains to a person walking or standing on the platform. On August 7, 1908, the train arrived from the east in the evening about 8 o’clock, which was before sunset. Plaintiff had purchased a ticket for Denver, and when the train whistled she came out of the south door of the waiting room in company with two other ladies and started along the platform, intending to board the chair car which stopped about 90 feet west of the bow window. There were several persons standing and moving about the platform near the window. Plaintiff, who was walking with her back to the incoming train, failed to realize how close she was to the track and was struck by the pilot of the engine and seriously injured. Several persons testified that they saw that plaintiff was in danger, and one of them who was within reach tried to pull her out of the way. Plaintiff was familiar with the station and surroundings, having lived most of her life- in Hays. - She testified that all she could remember of the circumstances was that she was trying to get around the signal post through the crowd where it would be safe for her, and at the moment she supposed she was nearer to the bow window than she really was. She had heard the train whistle but supposed it was farther away, that she did not look toward the track or in the direction of the train; she was looking straight in front of her and trying to get through the crowd. Her testimony was that she knew it was dangerous there between the post and the track, and that if she had seen or realized her situation she would not have stood so near; that she did not believe she could have seen how near she was to the track if she had looked. A number of persons who witnessed the accident testified that she did not look back or toward the track at any time before she was struck, and some of them said she was laughing and talking with her companions as she walked along. Having stood upon a demurrer to the evidence and a request for a peremptory "instruction, defendant contends that there was no showing of any negligence on its part, and further that the proximate and only cause of plaintiff’s injuries as shown by the testimony was her own negligence in walking so close to an approaching train. Upon the question of contributory negligence the court gave this instruction : “If you find and believe from the evidence that the plaintiff knew when she went upon the platform that train No. 103 was pulling into the station, and if she walked along the platform on the side of the crowd nearest the track without noticing whether or not she was dangerously near said track, and if she could have seen that the train was near her if she had looked, but failed to look to see where the train was or where she was, and if in that position while walking west with her back to the incoming train she was struck by that train, then she was guilty of contributory, negligence, and you should find for the defendant.” If, as defendant argues, this instruction is correct, it was the duty of the court to sustain the demurrer, for every fact upon which the instruction is predicated is established by uncontroverted evidence and is admitted by the plaintiff. There was no objection, so far as the record shows, to the giving of the instruction, and neither in the oral argument nor in the brief has plaintiff questioned its correctness. As applied to the facts of this case, we think the instruction was too favorable to the defendant. It correctly states the general rule, but it fails to authorize the jury to take into consideration the conditions and circumstances in which the plaintiff was placed, the presence of a crowd of persons between her and the narrow space in front of the window, the confusion which ordinarily occurs at such times, and the natural inclination of persons who are situated as plaintiff was to concentrate their faculties upon efforts to secure a favorable position from which to board the cars. After all is said, the sole question is, Are the admitted facts such that reasonable minds could not differ as to her contributory negligence? If, from all the evidence, reasonable minds might reach different conclusions, it becomes a question for the jury; otherwise for the court. (Railroad Co. v. Powers, 58 Kan. 544, 50 Pac. 452; Davis v. City of Holton, 59 Kan. 707, 54 Pac. 1050; Cummings v. Railroad Co., 68 Kan. 218, 74 Pac. 1104.) Had the evidence shown that the platform space about the window had been comparatively free and unobstructed and that plaintiff, with ample opportunity to choose' a safe- place to walk, had put herself or remained in a position of obvious danger from incoming trains, the instruction would have stated the law correctly. Her testimony, however, is that she was endeavoring to get past the narrow space in front of the window, and because of the crowd of persons about her she was prevented from realizing her danger, and believed she was nearer to the signal post and window than in fact she was. In view of all the circumstances we find ourselves unable to declare as a matter of law that the plaintiff was guilty of contributory negligence, and therefore hold that the question was for the jury to determine. The remaining question is whether the evidence supports a finding that the defendant was negligent in the manner in which it constructed and maintained its platform. In the construction of stations and platform grounds the carrier is not held to that high degree of care which must be exercised in the transportation of passengers. The defendant has no quarrel with the instructions of the court in this respect, and concedes that the law is as stated in Sweet v. Railroad Co., 65 Kan. 812, 70 Pac. 883, where it was said: “It is true, a railroad company owes a duty to its passengers, and, perhaps, to all others who are there on proper business, to use ordinary care in constructing and maintaining platforms about its depots. It is not required to make it impossible for one to injure himself. Such ordinary precautions must be used to prevent injury as suggest themselves to a reasonably prudent person.” (p. 814.) The contention is that in determining whether the defendant has exercised reasonable care in the construction of the platform a court and jury must be governed by the kind of platform in general use by railroad companies, and cases- are cited in support of the doctrine that an inexpert jury will not be permitted to say that a structure which has been adopted generally by railroad companies is an improper one. Conceding the general doctrine for the purpose of the argument, we think it can hardly be made to apply to the present situation. There was no proof that the alleged defect in this platform is one that is common to railway platforms as generally constructed and maintained. We know from experience and observation that depots and platforms are frequently constructed with a bow window which extends toward the tracks and which has the effect of reducing to some extent the space left for platform purposes, but observation has not shown us that as a general rule they are constructed and maintained with relation to the waiting room and the place where trains stop to take on passengers as was the platform in question. Of course the mere fact that a railroad company has adopted a particular plan in the construction of a depot and platform does not cut off all inquiry as to whether in so doing it has exercised reasonable care for the safety of its passengers. In this case we think it was a proper question to be submitted to the jury. They might have determined .that reasonable care for the safety of passengers was not exercised in view of the location of the waiting room and the place over which persons coming from the waiting room to board their trains were obliged to pass. One test is said’to be the usual and ordinary way generally adopted by those in the same line of business. There is, however, nothing in the record to disclose that the way this platform was constructed and maintained was that in common use by railroads generally; nor, as before stated, can we say from our observation that station platforms are generally maintained in the same way. If the door of the waiting room had opened upon that part of the platform west of the bow window so that in order to reach the train persons would not have been obliged to walk along the narrow space between the signal box and the tracks, it is quite obvious that the danger from accidents of this kind would have been materially lessened. Whether ordinary prudence would not have suggested that precautions of some kind be taken to prevent injury to persons using the narrow space at times when it should become crowded by passengers hurrying from the. waiting room to get on board the train was, we think, a jury question. The defendant argues that no. platform could be constructed which would be safe if all the people gathered .there should attempt to occupy one part of it, and contends that the space of less than five feet was sufficient to enable the patrons of the road to pass from one part of the platform to the other, if too great a number did not attempt to pass at one time. The question whether defendant exercised reasonable care in maintaining a platform with this narrow space depends, we think, upon whether a reasonably prudent person would not have anticipated that at times when more or less confusion would naturally occur by reason of crowds being on the platform and trains coming into the station too great a number might attempt to use the narrow space at one time. It follows that the judgment must be affirmed.	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The opinion of the court was delivered by Porter, J.: Practically the only question to be decided in this case is whether the husband and wife are competent witnesses for or against each other concerning transactions in which one acted as the agent of the other. The plaintiff brought suit to recover damages for the breach of an oral agreement with the defendants and three other landowners to build a dike to protect the land of all the parties from the overflow of Bourbony creek in Shawnee county. She alleges that the levee or dike was to be built meandering along the west bank of the creek, and that each party was to build seventeen rods; that all the parties except the defendants performed their part of the agreement; but the defendants, instead of building on top of the old levee as they had agreed, built on lower ground; that their portions of the levee were built of poor material and not of the required height. Relying on the agreement, she alleges that she planted a crop on her land and that in the spring of 1907 it was destroyed by an overflow from the creek caused wholly by the neglect and failure of the defendants to perform their part of the agreement. The cause was tried before a jury. At the close of plaintiff’s evidence the court sustained a demurrer. The errors relate to the exclusion of testimony and the refusal to grant a new trial. The plaintiff sought to prove by her husband that he made the agreement with the other landowners and that his wife authorized him to do this for her. The court refused to permit him to state that his wife owned the land; that he managed and looked after the planting of the crops and the building of the levee; that his wife authorized him to act for her with respect to the contract. The plaintiff herself was a witness, but the court refused to permit her to state that her husband was her agent in the transaction or that she employed him to act in the making of the contract, or even that she knew that the work was being done and consented to it. The defendants, in their brief, claim that the demurrer was properly sustained because the evidence did not disclose that the plaintiff had anything to do with building the dike, “nor did it show that any one.acted for her.” But the plaintiff’s claim' is that the court would not permit her to prove these facts. The precise question is ignored in the defendant’s brief, or dismissed with the mere statement that the court properly sustained objections to communications had between the husband and wife. It is apparent, however, that the trial court sustained most of the objections to plaintiff’s evidence upon the theory that, since the adoption of the new code, the husband and wife are incompetent to testify for or against each other concerning transactions in which one acted ms the agent of the other. The third paragraph of section 321 of the civil code provides that the following persons shall be incompetent to testify: “Third, husband and wife, for or against each other, concerning any communication made by one to the other during the marriage, whether called while that relation subsisted or afterward.” The third clause of the same paragraph of the old law (former Civ. Code, § 323, Gen. Stat. 1901, § 4771) made the husband and wife incompetent to testify “for or against each other, except concerning transactions in which one acted as the agent of the other, or when they are joint parties and have joint interest in the action; but in no case shall either be permitted to testify concerning any communication made by one to the other during the marriage, Whether called while that relation subsisted, or afterwards.” Before the change in the statute, it was a settled law in this state that the wife may testify in her own behalf to the fact that she had authorized her husband to act as her agent and that he had so acted in her behalf. (McAdow v. Hassard, 58 Kan. 171, 48 Pac. 846; Green v. McCracken, 64 Kan. 330, 335, 67 Pac. 857.) It was likewise settled that when the agency of the husband is thus established he is a competent witness to testify to transactions between himself personally as her agent and third parties. (Douglass, Sheriff, v. Hill, 29 Kan. 527.) In the opinion Justice Brewer, speaking for the court, said: “She testified that she had money of her own which she received from England; that she turned it over to hér husband, who loaned and managed it as her agent. . . . Now whether she could testify as to what she said to her husband, or to what her husband said to her, or as to any communications between them, here was enough and competent testimony to show prima facie that he was acting as her agent. Therefore he was a competent witness to testify as to all the dealings and transactions.” (p. 530.) In W. & W. Rld. Co. v. Kuhn, 38 Kan. 104, 16 Pac. 75, it was held that: “An agent may testify as to his authority to act for his principal, and this rule is not changed by the fact that the agent is the husband of the plaintiff.” (Syl. ¶ 6.) The modern tendency of courts is to look with disfavor .upon any attempt to extend by implication statutory prohibitions against the qualifications of witnesses. (Hess v. Hartwig, 83 Kan. 592, 594, 112 Pac. 99.) Such statutes are always construed strictly in favor of the competency of the witness. (Mendenhall v. School District, 76 Kan. 173, 175, 90 Pac. 773.) In view of these considerations, and especially keeping in mind the former decisions of this court, it will not be assumed that the legislature intended by the change in the language of the third subdivision of section 321 to place further restrictions upon the competency of husband and wife to testify.- On the other hand, the presumption is that if in fact any substantial change in the law was contemplated, the authors of the new code' intended to broaden rather than to restrict the qualifications of witnesses. The prohibition against testimony as to communications between husband and wife was allowed to stand as it was. But this had been construed not to prevent testimony concerning transactions where one acted as the agent for the other; and it was probably deemed unnecessary to make an exception of something which had been repeatedly held not to fall within the rule. Besides, it seems obvious that, had the legislature intended to make such a radical change in the law, it would, especially in view of the former decisions, have so declared in explicit terms. The language of the statute as it now reads must be held to mean exactly what the same language meant before the revision. Moreover, the only way in which the prohibition can be construed so as to disqualify the witnesses in a case like the present is to' extend by implication the language of the statute; this courts decline to do, and as a rule construe such statutory provisions strictly in favor of the competency of the witness. • It is insisted that the failure of the plaintiff to comply with the statutory requirement that evidence ruled out by the trial court must be offered upon the hearing of the motion for a .new trial prevents a consideration of the error. The statute (Civ. Code, § 307) was never intended to require a useless offer of evidence where the record informs the trial judge of the nature of the evidence as fully as affidavits or oral testimony of the witnesses themselves could possibly inform him. To insist upon a rigid compliance with the rule in the present case would work a plain miscarriage of justice. From the' answers that were attempted to be made, and which in some instances were partly made by the witnesses, the trial court was obviously aware, as is this court, of exactly what the evidence would have shown had it not been excluded. Where the reason for the rule fails the rule should not be applied. One purpose of the statute was to enable the trial court, on the motion for a new trial, to consider the excluded evidence, and if satisfied that it should have been admitted, grant a new trial, or where the cause was tried to the court or a referee, make such modifications or changes in. the judgment as the facts require. Another purpose of the statute was to prevent the defeated party from seeking a reversal for error in the exclusion of evidence which, had the ruling been in his favor, he might not have been able to produce. It sufficiently appears by the testimony of the plaintiff and her husband what the evidence would have been had it been admitted. In a number of instances the plaintiff testified to enough facts to show the character of her testimony. She said'at different times that she gave her husband full power to act for her, and this was stricken out by the court upon objection. Since there must be a new trial, it is proper to call attention to a number of rulings excluding evidence of both the husband and wife on the ground that the answer called for a conclusion. We are aware of no reason why the plaintiff should not have been permitted to testify where her farm was located, her ownership of it, who owned the crop that was destroyed, the necessity and occasion for building a levee, who constructed it, that she authorized her husband to attend the meeting of landowners and represent her as her agent, what portion of the levee was built by her, whether she ratified and approved the arrangement made by her husband with the other landowners, that she knew the work was being done partly for her benefit. Many other answers should have been admitted which were ruled out on the ground that they called for a conclusion or that they were irrelevant and immaterial. It follows from what has been said that the judgment will be reversed and a new trial ordered.	[ -47, 108, -3, -51, -120, 96, 40, -102, 97, -126, -12, 83, -3, -62, 8, 106, -90, 125, 80, 59, 86, -78, 63, 112, -46, -13, -79, -51, -71, 78, -28, -41, 76, 48, 66, -43, -26, 66, 77, 88, -114, -106, -117, -19, -39, 82, 52, 123, 20, 74, 21, -114, -13, 40, 61, -58, -53, 46, 75, 45, 105, 48, 44, -97, 95, 5, 49, 36, -106, 5, -56, 14, -112, 53, 1, 124, 115, -74, -122, -12, 11, -117, 9, -10, 98, 2, 20, -49, -20, -104, 7, 126, -115, -90, -112, 72, 75, 73, -66, -99, 125, 116, -90, -10, -20, 13, 95, 104, 3, -117, -46, -79, -113, 52, -112, 1, -21, -125, 48, 97, -49, -30, 77, 65, 51, -101, -113, -110 ]
The opinion of the court was delivered by Miller, J.: This is an appeal from the District Court of Sedgwick County in a workers’ compensation case. The trial court found that the claimant, Cecil C. Box, had sustained 100% permanent disability resulting from an occupational disease as defined in K.S.A. 44-5a01, and entered judgment for the workman and against his employer, Cessna Aircraft Company, and its insurance carrier, The Hartford Accident & Indemnity Company. None of the award was assessed against the Workers’ Compensation Fund. Cessna and The Hartford appeal. The claimant began working for Cessna in August of 1964. He was in good health and had had no prior respiratory ailments. He worked on “squawks,” defects that appear on an airplane after its manufacture is complete. The area in which he worked was in or very near the paint shop. Frequently other workmen would be painting the plane while claimant worked on it. There was considerable evidence that the air in the area was often heavy with paints, lacquers, thinners, solvents, cleaners, and other chemicals being sprayed or used. About 1972 the claimant had pneumonia and was hospitalized for about a week. He returned to work and first started having breathing problems in the summer of 1976. He went into the hospital for a few days and then returned to work, but his respiratory problems continued. He last worked on February 15, 1977. A claim was filed and this proceeding was instituted shortly thereafter. Three physicians testified and the report of a fourth was admitted by stipulation. Claimant’s treating physicians were Dr. Dillis L. Hart, who is board certified in the area of general surgery, and Dr. Richard W. Spann, board certified as an internist and also in the subspecialty of pulmonary disease. Dr. R. Lawrence Sifford, board certified in internal medicine, and Dr. Curtis C. Drevets examined the claimant for the respondent. Both Dr. Hart and Dr. Spann diagnosed the claimant as suffering from chronic bronchitis. The differences between emphysema, bronchitis and obstructive pulmonary disease or obstructive airway disease were discussed at length during the examination of these witnesses. Dr. Spann testified clearly that the claimant’s predominant disease is not emphysema but is chronic bronchitis, and he expressed the opinion that the cause of the bronchitis in this case was work-related. Dr. Sifford found no emphysema, no chronic obstructive pulmonary disease, and in general found the claimant to be in excellent physical condition and able to do heavy work. He said that the claimant did have a little wheezing and a very slight amount of obstruction, but that he was physically healthy and had no disability. He expressed the opinion that claimant has mild intermittent bronchospasm and mild intermittent coughing, related to a mild bronchitis, caused in most probability by the inhalation of cigarette smoke. The letter from Dr. Drevets is written on the letterhead of the Wichita Clinic. It lists Dr. Drevets under internal medicine, allergy and pulmo nary diseases. He expressed the opinion that claimant has mild obstructive airway disease. He expressed the suspicion that claimant’s environment may have contributed in part to his current problem. Dr. Drevets did not consider the claimant disabled though he may have difficulty in returning to an environment where there are fumes or dust; but the doctor thought claimant had good enough pulmonary function to do other kinds of work. There is extensive and conflicting evidence as to claimant’s smoking history. He testified that he smoked cigarettes while he was in the service and then quit. He resumed smoking when he went to work for Cessna in 1964 and then quit in 1972 or 1973. During this time he smoked only about one-half pack a day. He has not smoked since then. There was evidence produced by the appellant, by way of Cessna medical records, indicating that claimant may have smoked more. This is also indicated by forms claimant filled out for the Disability Determination Services. Both sets of records contain inconsistent information. Claimant was required by Cessna to take an annual physical examination which was required of all employees in hazardous areas. Cessna’s medical records consisted of forms claimant filled out at the time he took those examinations. The information thereon was conflicting. Respondent also presented a private investigator who testified she saw claimant smoking during the pendency of this action; claimant and two other witnesses disputed her testimony. The district court announced its decision by way of letter memorandum. The court found that claimant had an occupational disease and that the disease was not emphysema. He found that Dr. Spann’s training and experience was impressive, he being the only one of the four physicians who is board certified in the subspecialty of pulmonary diseases, the only one who has training in the effects of smoking and the cessation of smoking, and the only one who limits 90% of his practice to pulmonary and chest diseases. The court accepted Dr. Spann’s testimony as the most credible and the most believable. The trial court found that the claimant’s chronic bronchitis arose out of and in the course of his employment, and that he has suffered permanent total disability. The issues raised on appeal deal extensively with the suffi ciency of the evidence. Before turning to the issues, we should state the scope of our review and certain applicable principles. K.S.A. 44-501 provides: “In proceedings under the workmen’s compensation act, the burden of proof shall be on the claimant to establish his or her right to an award of compensation by proving the various conditions on which his or her right depends.” K.S.A. 1983 Supp. 44-508(g) defines burden of proof, which reads: “ ‘Burden of proof means the burden of a party to persuade the trier of facts by a preponderance of the credible evidence that such party’s position on an issue is more probably true than not true.” K.S.A. 44-5a01 reads in part as follows: “Occupational diseases; treated as injuries by accident under workmen’s compensation act; defined; limitations of liability; aggravations, (a) Where the employer and employee or workman are subject by law or election to the provisions of the workmen’s compensation act, the disablement or death of an employee or workman resulting from an occupational disease as defined in this section shall be treated as the happening of an injury by accident, and the employee or workman or, in case of death, his dependents shall be entitled to compensation for such disablement or death resulting from an occupational disease, in accordance with the provisions of the workmen’s compensation act as in cases of injuries by accident which are compensable thereunder, except as specifically provided otherwise for occupational diseases. “(b) ‘Occupational disease’ shall mean only a disease arising out of and in the course of the employment resulting from the nature of the employment in which the employee was engaged under such employer, and which was actually contracted while so engaged. ‘Nature of the employment’ shall mean, for purposes of this section, that to the occupation, trade or employment in which the employee was engaged, there is attached a particular and peculiar hazard of such disease which distinguishes the employment from other occupations and employments, and which creates a hazard of such disease which is in excess of the hazard of such disease in general. The disease must appear to have had its origin in a special risk of such disease connected with the particular type of employment and to have resulted from that source as a reasonable consequence of the risk. Ordinary diseases of life and conditions to which the general public is or may be exposed to outside of the particular employment, and hazards of diseases and conditions attending employment in general, shall not be compensable as occupational diseases: Provided, That compensation shall not be payable for pulmonary emphysema or other types of emphysema unless it is proved, by clear and convincing medical evidence to a reasonable probability, that such emphysema was caused, solely and independently of all other causes, by the employment with the employer against whom the claim is made, except that, if it is proved to a reasonable medical probability that an existing emphysema was aggravated and contributed to by the employment with the employer against whom the claim is made, compensation shall be payable for the resulting condition of the workman, but only to the extent such condition was so contributed to and aggravated by the employment.” We note that under the proviso of 44-5a01(b), where the cause of the disability is pulmonary emphysema or other types of emphysema, the burden of proof is increased from a preponderance of the credible evidence to “clear and convincing medical evidence to a reasonable probability” that the employment, solely and independently of all other causes, was responsible for the disease or condition. Judge Abbott has summarized the scope of appellate review in workers’ compensation cases in the recent case of Harris v. Cessna Aircraft Co., 9 Kan. App. 2d 334, 678 P.2d 178 (1984), as follows: “If this court finds there is substantial competent evidence to support the finding of the trial court, the judgment will not be disturbed on appeal. Day and Zimmerman, Inc. v. George, 218 Kan. 189, 542 P.2d 313 (1975); Boyd v. Yellow Freight Systems, Inc., 214 Kan. 797, 522 P.2d 395 (1974). Such evidence is defined as that which is relevant and which carries enough weight to allow one to conclude that the judgment is proper. Hardman v. City of Iola, 219 Kan. 840, 549 P.2d 1013 (1976). In determining whether the evidence is substantial and competent, the record is viewed in a light most favorable to the prevailing party. Makalous v. Kansas State Highway Commission, 222 Kan. 477, 565 P.2d 254 (1977); Anderson v. Kinsley Sand & Gravel, Inc., 221 Kan. 191, 558 P.2d 146 (1976). If the evidence is substantial and competent, the ruling will be upheld even if there is evidence of record which supports contrary findings. Phillips v. Helm’s Inc., 201 Kan. 69, 439 P.2d 119 (1968). The negative findings of a trial court will seldom be set aside if the evidence is limited in quantity and its weight and credibility may be questionable, or if the evidence may be disregarded for any reason. Davis v. Rock Island Oil Co., 211 Kan. 201, 505 P.2d 694 (1973); Harrell v. J. S. Frank Construction Co., 210 Kan. 548, 502 P.2d 762 (1972).” pp. 334-35. We now turn to the first issue. Cessna and The Hartford contend that the trial court misinterpreted and misapplied K.S.A. 44-5a01. Appellant argues that the court should interpret “emphysema” in a very broad sense and not in a strict medical sense. Appellants point out that the term “obstructive airway disease” is a term that is associated in the public mind with the term emphysema; thus, appellants contend that this court should adopt a broad definition of emphysema, broad enough to encompass any obstructive airway disease, including bronchitis. Dr. Hart explained that bronchitis is “inflammation of the mucosa, which is the lining of the airways of the lung. It becomes inflamed and swells and causes obstruction.” It generally is treatable. Emphysema, on the other hand, refers to the permanent destruction of lung tissue, a process that is not reversible. Dr. Hart agreed that in common parlance, the term “mild emphysema” could be used to describe the claimant’s condition, but it is clear from his testimony that he preferred the term “airway obstructive disease,” and that he diagnosed claimant as having bronchitis, not emphysema. Dr. Spann, whose testimony was found to be most convincing to the trial court, diagnosed the claimant as having chronic obstructive pulmonary disease with chronic bronchitis. As to emphysema, Dr. Spann expressed the opinion that claimant probably does not have emphysema and that his predominant disease is not emphysema but chronic bronchitis. He explained that emphysema differs from chronic bronchitis clinically in some respects. In emphysema, the clinical manifestations are shortness of breath, little cough, little wheeze, and little noise in the chest. The patient tends to be thin, and tends to maintain blood gases which are near normal until terminally ill. In chronic bronchitis, the patient tends to be a little overweight, a little more ruddy, has episodes of congestive failure throughout the course of the disease, and has more cough, wheeze and noise in the chest. Dr. Spann defines emphysema as destruction of the lung tissue. Bronchitis is defined as an inflammation causing narrowing of the bronchial tubes, which fill with mucus and restrict the flow of air. English language, medical, and legal dictionaries — Webster’s Third New International Dictionary, American Heritage Dictionary of the English Language, Dorland’s American Illustrated Medical Dictionary, and Stedman’s Medical Dictionary (Fourth Unabridged Lawyers’ Edition)— give definitions of emphysema and bronchitis which, while more detailed, agree generally with those given here. Emphysema is a medical term. We see no reason to expand the definition of that term, as used in the statute, to encompass conditions or diseases beyond those ordinarily included in the English language dictionary definitions. If the legislature intends that the proviso apply to all airway obstructive diseases, it may do so. We decline to extend the present statutory language. The trial court did not misinterpret or misapply the statute. There is substantial competent evidence in the record to support the trial court’s finding that the claimant does not have emphysema. The proviso of K.S.A. 44-5a01(b) is therefore inapplicable under the facts of this case. Claimant’s burden of proof was therefore the familiar preponderance of evidence, applicable in most civil cases and compensation proceedings. Appellants next contend that the trial court committed prejudicial error in placing the burden of proof upon them. The trial court in its memorandum letter said: “The court is of the opinion that the provisions of this statute [K.S.A. 44-5a01(b)] are a defense to what otherwise might be a compensable claim. The burden of proof, therefore, should be on the Respondent and Insurance Carrier if they wish to take advantage of this defense and prove that the Claimant had emphysema.” The burden of proof, as we noted above, is upon a claimant to establish his or her right to an award of compensation. Once a claimant demonstrates a compensable injury and offers and introduces credible evidence that he or she is not suffering from emphysema, then, if the respondent contends that the condition is emphysema, the burden of persuasion shifts to the respondent. While the trial court used the phrase “burden of proof’ instead of “burden of persuasion,” the trial court was speaking of the burden carried by an employer, respondent or insurance carrier desiring to establish emphysema as a defense. Though the trial court’s language was technically incorrect, a careful reading of its letter memorandum discloses no prejudicial error. In the trial court’s view, the plaintiff established his right to an award of compensation by establishing by a preponderance of the evidence that he had an occupational disease which was not emphysema. The burden of persuasion then shifted to the respondent and the insurance carriel', to establish that the claimant was suffering from emphysema; upon consideration of all the evidence the trial court deemed that the claimant was not. Appellants next contend that the trial court erred in ruling that certain medical records of Cessna and the Veterans Administration were inadmissible. The record, however, indicates that the trial court admitted those records into evidence. The rules of evidence, K.S.A. 60-401 et seq., are not applicable in workers’ compensation proceedings. Pence v. Centex Construction Co., 189 Kan. 718, 724, 371 P.2d 100 (1962); Dean v. Hodges Bros., 170 Kan. 333, 335, 224 P.2d 1028 (1950); Hall v. Armour & Co., 153 Kan. 656, 659, 113 P.2d 145 (1941). The admissibility of evidence is more liberal in compensation cases, not more restrictive. The medical records offered in this case were properly admitted into evidence. Appellants further contend that because the trial judge expressed the opinion that t}re records were not admissible, the judge did not give them proper consideration. To the contrary, the judge indicated that he attempted to examine very carefully the medical records of Cessna, as well as those of the Veterans Administration. In his letter memorandum, the judge discusses the records at length and eventually finds them to be of little value. The record below clearly indicates that the records were in fact admitted into evidence and were carefully considered by the trial court. There was no error. Next, appellants contend that there was no substantial competent evidence to support the trial court’s finding that claimant’s case is compensable. They break this down into four subissues, all dealing with the sufficiency of the evidence. The first claim is that there was no substantial competent evidence that claimant was engaged in an occupation or employment which exposed him to a special risk. To the contrary, the claimant and three of his coemployees testified that there was a lot of painting going on where the claimant worked; that the air was sometimes foggy and so thick you could not see the other end of the department. The exhaust system was not adequate. There was testimony that polyurethane as well as enamel and lacquer paints and ketone thinners were being used. One of the coemployees testified that other employees in the same department have suffered some lung problems, and that OSHA had instructed the department to cut down the painting. Finally, a Cessna nurse testified that the company required annual physicals for employees who worked in areas that were considered most hazardous. Claimant was one of those required to take an annual physical examination. There was ample substantial and competent evidence to support the trial court’s finding that claimant was engaged in an occupation or employment which exposed him to a special risk, a special and peculiar hazard of the disease from which the trial court found he suffers. Second, appellants contend that there was not substantial competent evidence to support the trial court’s finding that claimant did not suffer from emphysema. We have discussed this previously and find this issue to be without merit. Third, appellants claim that there is not substantial competent evidence to support a finding that claimant’s condition was caused solely by his employment. They argue that he has not established this by clear and convincing medical evidence. This argument presupposes a finding of emphysema. Since the trial court found that claimant does not have emphysema, the proviso of K.S.A. 44-5a01(b) is inapplicable. Claimant’s burden was to establish his claim and entitlement to an award of compensation by a preponderance of the evidence. The trial court found that he had met this burden and we agree. Appellants also argue that claimant has failed to sustain his burden of showing that his disability was due solely and independently of all other causes to his work environment. This argument is premised upon the appellants’ erroneous assumption that claimant has emphysema and that the proviso is applicable. We need not pursue this argument further. Finally, concluding their argument on this point, appellants contend that there is no substantial competent evidence to support an award to the claimant based upon an aggravation of his condition by his employment. This argument also assumes a finding of emphysema and the applicability of the proviso. The trial court found no emphysema and did not base the award upon an aggravation of a preexisting condition. Appellants next contend that there was no substantial competent evidence to support the district court’s finding that claimant is entitled to a permanent total disability award. In support of this contention they cite Schubert v. Peerless Products, Inc., 223 Kan. 288, 573 P.2d 1009 (1978), in which we held that scheduled injuries as listed in K.S.A. 44-510d are not applicable to occupational disease cases, and that compensation in those cases should be computed on the basis of diminished earning capacity. While the trial court here did not enunciate the Peerless Products rationale, the trial court found the claimant to be totally disabled. There is no evidence that claimant was employed at the time of the hearing, and there was competent evidence that he will not be employable in the future. Thus, while the trial court erred in not stating the basis for its award in terms of diminished earning capacity, it did not err in its conclusion and award. By virtue of being totally disabled and unable to work, claimant’s earning capacity was destroyed. The error was harmless. Finally, appellants contend that the trial court erred in failing to assess all or part of the award against the Workers’ Compensation Fund. The issue here is whether or not Cessna knowingly retained a handicapped employee. K.S.A. 1983 Supp. 44-567. The burden of proof on this issue is on the employer. Carter v. Kansas Gas & Electric Co., 5 Kan. App. 2d 602, Syl. ¶ 1, 621 P.2d 448 (1980). The trial court held that Cessna did not sustain its burden of proof on this issue. This amounts to a negative finding. Absent arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice, a negative finding of a trial judge cannot be disturbed. Brown v. Lang, 234 Kan. 610, Syl. ¶ 5, 675 P.2d 842 (1984); Hinton v. S. S. Kresge Co., 3 Kan. App. 2d 29, Syl. ¶ 4, 592 P.2d 471 (1978), rev. denied 225 Kan. 844 (1979). In its decision, the trial court acknowledged that there was evidence that Cessna had knowledge as far back as 1972 that the claimant had bronchitis. Does this amount to knowledge of a preexisting physical impairment, disorder or disease? (See K.S.A. 1983 Supp. 44-566.) The trial court, upon evidence, found that occupational disease such as chronic bronchitis develops over a period of time. It developed in the claimant at least from 1972 through February 15, 1977. K.S.A. 1983 Supp. 44-567 requires, before compensation shall be paid from the Workers’ Compensation Fund, that there be a finding that the disability “probably or most likely would not have occurred but for the preexisting physical . . . impairment . . . .” Thus, in the case at hand, in order for benefits to be charged to the Workers’ Compensation Fund, there must be a finding that the claimant’s chronic bronchitis would not have occurred but for the preexisting bronchitis. As the trial court pointed out, if the court were to hold that the previous bronchitis was a preexisting disability then, in all workers’ compensation cases involving occupational diseases, if the employer has one day’s notice of the disease prior to the date of disablement the entire liability would fall upon the Fund. This would have the practical effect of shifting liability for all occupational disease awards to the Fund. This is not the intent of the statutes creating the Workers’ Compensation Fund. While the employer here had knowledge of some minimal bronchitis, there is no evidence that claimant, in 1972, fit the legislative definition of a “handicapped employee,” as that term is defined in K.S.A. 1983 Supp. 44-566. It does not appear that the court arbitrarily disregarded undisputed evidence in finding that Cessna did not meet its burden of proof on this issue. K.S.A. 1983 Supp. 44-566 defines a “handicapped employee” as: “[Ojne afflicted with or subject to any physical or mental impairment, or both, whether congenital or due to an injury or disease of such character the impairment constitutes a handicap in obtaining employment or would constitute a handicap in obtaining reemployment if the employee should become unemployed . . . .” There is no evidence establishing that a person having bronchitis, not chronic but mild, slight or minimal, as claimant did in 1972, would be handicapped in obtaining or in retaining employment. Likewise, there is no evidence that Cessna considered terminating or transferring the claimant to a less hazardous department because of his physical condition at the time of his 1972 examination, or that Cessna would not have hired a person in similar health. We agree with the trial court that under the evidence claimant was not a “handicapped” employee. The trial court did not err in refusing to assess the award or a portion of it on the Workers’ Compensation Fund. We have carefully considered all issues raised by the respondent and its insurance carrier, the appellants, and find no reversible error. The judgment is affirmed.	[ -48, 106, -12, -98, 8, 97, 122, 90, 87, -27, 37, 91, -17, -6, -115, 47, -15, 13, -47, 126, -41, -77, 83, 51, -42, -109, -21, -57, -71, 75, -28, -2, 8, 32, -118, 21, -122, 64, 69, 80, -52, 6, -87, -20, 89, 82, -72, 106, -38, 95, 21, -98, -22, 42, 30, -61, 40, 32, 122, 32, -63, -32, -53, 5, 109, 24, -93, 6, -100, 15, -40, 47, -110, -80, 72, -20, 18, -90, -58, -76, 35, -103, 12, 102, -29, 36, 21, -19, 100, -72, 6, 78, 15, -91, -102, 17, -104, -114, -108, 13, 120, 26, 6, 120, -24, 84, 30, -19, -126, -122, -106, -79, -49, 32, -100, -69, -17, -85, 55, 65, -100, -78, 89, 5, 115, 63, -13, -104 ]
The opinion of the court was delivered by Miller, J.: This is an appeal by the City of Shawnee, Kansas, from the final judgment entered after a jury trial in an eminent domain proceeding. The City is the condemnor and appellant. Dorothy Webb and Webb Enterprises, Inc., are the landowners and appellees. The City claims that the trial court erred in refusing to dismiss the landowners’ appeal on jurisdictional grounds; in refusing to dismiss as to one named defendant, Dorothy Webb; in finding unity of use as to two separate but adjoining tracts of land; in admitting evidence of the closing of a nearby highway intersection; in refusing to give a jury instruction proposed by the City; in excluding evidence of certain “comparable” sales; and in denying the City’s motion for assessment of costs. By cross-appeal, the landowners contend that the trial court erred in denying their motion to assess costs. The first issue presented by the City is that the trial court erred in failing to dismiss the landowners’ appeal for the reason that the appeal was not filed within the time limits fixed by K.S.A. 26-508, which provides in pertinent part: “If the plaintiff, or any defendant, is dissatisfied with the award of the appraisers, he may, within thirty (30) days after the filing of the appraisers’ report, appeal from the award by filing a written notice of appeal with the clerk of the district court.” We turn to the procedural background. After the City commenced the action by filing its petition, statutory notice was given to the landowners pursuant to K.S.A. 26-503, and on the date fixed a hearing was held. The trial court made the requisite findings of power and necessity, K.S.A. 26-504, and then proceeded to appoint appraisers and fix the time for the filing of their report. They were ordered to file their report with the Clerk on August 24, 1981. Some days later, the court extended the time in which the appraisers were to file their report. The order stated: “[T]he Court grants the appraisers [an] additional 15 days in which to file the appraisers’ report, the report shall be filed on or before the 7th day of Sept., 1981.” A report of the appraisers was filed on September 4, 1981. September 7th, the date mentioned by the trial court in its order, fell on Labor Day. An amended report of the appraisers was filed on September 8, 1981. On September 8, the City’s attorney mailed a notice to the landowners, stating: “You are hereby notified that the Appraisers’ Report was filed on the 8th day of September, 1981, in the office of the Clerk of the District Court of Johnson County, Kansas.” This was the only notice of filing mailed to the landowners; no notice of the filing of the report on September 4 was given. The landowners, Dorothy Webb and Webb Enterprises, Inc., filed a notice of appeal on October 8, 1981. On April 15, 1983, the City filed a motion to dismiss the appeal, for the first time raising the timeliness of the notice of appeal. The trial court overruled the City’s motion, and the case proceeded to jury trial. The City contends that the landowners did not file their appeal within the time limits prescribed by K.S.A. 26-508. The City’s argument is based upon our opinion in the case of Urban Renewal Agency v. Reed, 211 Kan. 705, 508 P.2d 1227 (1973). In that case the district court appointed appraisers and ordered them to filé their report on November 24, 1970. Notice was given to the landowner that a hearing would be held before the appraisers on November 19, that the court set the 24th day of November for filing of the appraisers’ award, and that: “[A]ny party dissatisfied with the award may appeal therefrom as by law permitted within thirty (30) days from the date of filing.” 211 Kan. at 706. The appraisers met on November 19, agreed upon an award, and filed their report on that date. No notice that the report was filed on November 19 was given to the landowner. A notice of appeal was filed on behalf of the landowner on December 23,1970. The trial court held that the appeal was not taken within time and dismissed the matter. The landowner appealed. We reversed. Pertinent portions of the opinion read: “K.S.A. 26-504 states that'the order appointing appraisers ‘shall also fix the time for the filing of the appraisers’ report. . . .’It does not say the order shall fix the time ‘within which’ the report is to be filed, nor ‘the last day’ for such filing. Accordingly, the order here said the report should be filed ‘on’ November 24, not ‘on or before’ November 24. The same observations apply to the statutory form of notice and the notice actually employed. Both fix a date certain for filing, rather than a final deadline for filing. “What would the average landowner glean from reading the notice given appellant here? He would find that the appraisers would meet and determine his award on November 19, that they were required by the court to file their report on November 24, and that he had thirty days after that filing to take his appeal. He would, we think, inevitably conclude that his last day to appeal was December 24. “That would be the natural reading of the notice; the same construction might even, as here, suggest itself to experienced counsel. We think further that such must have been the legislative intent for otherwise the required order of the court fixing the filing date and the statutory notice incorporating it would both be meaningless. The effect of both could be nullified at the whim of the appraisers, by their simply ‘filing’ the report whenever it suited them. We cannot believe the legislature intended to entrust them with any such power to affect the substantial rights of the parties. “We therefore hold that for the purpose of computing the parties’ appeal time the filing of the appraisers’ report under K.S.A. 1972 Supp. 26-505 is effective on the date fixed by the judge for such filing and set forth in the notice of hearing required by K.S.A. 26-506, regardless of the date such report is actually delivered to the clerk of the court.” 211 Kan. at 708. The Reed rule was concisely stated in Syl. ¶ 1, as follows: “For the purpose of computing the parties’ appeal time the filing of the appraisers’ report under K.S.A. 1972 Supp. 26-505 is effective on the date fixed for such filing by the district judge and set forth in the notice of hearing required by K.S.A. 26-506, regardless of the date such report is actually delivered to the clerk of the court.” The City asserts that the Reed case clearly establishes that for the purpose of calculating the thirty-day time period within which an appeal may be filed, the operative date is the date fixed by the judge. In Reed, the landowner was notified of the date on which the court directed the appraisers to file their report. No notice that the report was filed was ever given to the landowner. The report was filed five days early. Under those circumstances, we held that the landowner would not be deprived of the right to appeal when the landowner filed the appeal thirty days after the date on which the landowner was advised the report was to be filed. The rationale of Reed cannot apply, however, when a report is filed later than the date fixed by the trial court. If, for some reason, the appraisers’ report is not filed for thirty days after the date fixed for its filing by the trial court, strict application of the rule in Reed would indicate that the landowner must appeal before the report of the appraisers is filed. This cannot be the intent of the legislature when it says that either the condemnor or the landowner, if dissatisfied with the award, may, within thirty days after the filing of the appraisers’ report, appeal by filing a written notice of appeal with the clerk of the district court. K.S.A. 26-508. We find the language in Reed applicable only when the report is filed on or before the date for filing fixed by order of the court. Where the appraisers’ report is not filed until after the date fixed by the court, the parties have thirty days from the date on which the report is actually filed with the clerk of the district court to file a notice of appeal. The report filed on September 4 was disregarded by all parties. No notice of the filing of that report was ever given by the condemnor to the landowners; instead, that report was ignored and the amended report, filed on September 8, has for all purposes been treated by the parties as the official appraisers’ report. That is the report which is mentioned in the notice to the landowners given by counsel for the condemnor. We conclude that the notice of appeal was timely filed. Next, the City contends that the trial court erred in denying the City’s motion to dismiss Dorothy Webb as a defendant. The City contends that this action was prejudicial. The record indicates that Dorothy Webb was designated as a defendant in the original petition; that she was retained as a defendant through and including the filing of the amended appraisers’ report and that at the pretrial conference, held on July 1, 1982, the City stipulated that there was no objection to the propriety of the parties; and that, while title to the real estate was vested in Webb Enterprises, Inc., Dorothy Webb was in actual possession of the land. We are at a loss to see how the retention of Dorothy Webb as a defendant was prejudicial to the condemnor, and we conclude that the trial court did not err in denying the motion. The City, for its third issue, contends that the trial court erred in finding that there was a unity of use as to the entire 112-acre tract of land. The Webb property consisted of 72 acres which we may roughly describe as being the N 1/2 of the SW 1/4 of Section 15, excepting that part thereof previously taken for highway purposes, and the SE 1/4 of the SW 1/4 of Section 15, containing 40 acres. Thus, we have an “L” shaped piece of property, all in the SW 1/4 of Section 15, connected, with no highways, public easements, or division of any kind between the tracts. The City argues that whether or not there is a unity of use should be decided by the trial court and not the jury. We agree. In this case the trial court in fact made such a decision, and did not submit this as an issue to the jury. There was no error. The City also argues that the trial court erred in not ruling on the unity of use issue prior to trial. We agree that in condemnation proceedings it is preferable for the trial court to rule on this issue in advance of trial so that the parties may properly prepare their expert witnesses and other evidence. In this case, the trial court indicated before trial that it would reserve its ruling until it heard the evidence, but that it would probably rule that there was a unity of use. The court’s final ruling that there was a unity of use did not come as a surprise to either party. AH-of the expert testimony was geared to the before and after value of the entire 112-acre tract. The only evidence as to unity of use came from the landowners’ witnesses. The City announced prior to trial that it would not present any evidence on that issue and it did not do so. Under the circumstances the City was not prejudiced by the trial court’s failure to make a final ruling on that issue prior to trial. Finally, on this point, the City argues that the trial court ignored what the City characterizes as “the well-established rule that the burden of proof on this issue is upon the landowner.” The landowners contended that there was a unity of use and presented evidence to establish that claim. The City presented no evidence on that issue. The evidence of the landowners was that the 72 acres was fenced and the Webbs raised cattle and buffalo thereon. The south 40 acres was unfenced and was farm ground. Crops raised thereon — or at least the owners’ share— were used to feed the livestock. All of the land was contiguous, was under one ownership and management, and was all included in their livestock and farming operation. The only evidence supports the trial court’s finding of unity of use. We find no error. For its fourth point, the City contends that the trial court erred in admitting evidence as to the closing of the intersection of 71st Street and K-7 highway. Discussion of this point necessitates a further description of the property. K-7 highway runs along the west side of the north 72-acre tract. K-10 highway runs along the north edge of that property, at least to the mid-line thereof, from which K-10 veers to the northeast. Old K-10 highway, now known as Midland Drive, continues on to the east and adjoins the north boundary of the east portion of the 72-acre tract. 71st Street runs along the south boundary line of the 40-acre tact. It intersects K-7 highway about 1300 feet west of the landowners’ south property line. The City contends that evidence of the closing of the K-7 and 71st Street intersection should not have been received in evidence because the closing of that intersection was not explicitly mentioned in the appraisers’ report. The City cites and relies upon Sutton v. Frazier, 183 Kan. 33, 325 P.2d 338 (1958), which states in Syl. ¶ 8: “In an eminent domain proceeding the report of the appraisers must show what is taken, and what the landowners part with. Nothing is taken by implication or intendment, and the landowners may rely implicitly on the report filed which becomes the evidence and the only evidence of the commissioners’ doings.” However, in the later case of McCall Service Stations, Inc. v. City of Overland Park, 215 Kan. 390, 524 P.2d 1165 (1974), our court was faced with the similar contention that claims of loss of access were limited by the language of the appraisers’ report, and we held that where access was being taken which affected the property, it could be taken into consideration — even though not mentioned in the appraisers’ report — in determining the before and after values of the property. Here, the appraisers’ report gave a detailed metes and bounds description of the property taken, the Webb property being described as tract No. 36. The report then says: “Lands abutting said highway shall have no right or easement of access thereto.” (Emphasis supplied.) When the appraisers spoke of “said highway,” were they speaking of K-7 highway or K-10 highway or Midland Drive or 71st Street? The report does not say. Nowhere in the appraisers’ report is there a definition of “said highway.” No highway is mentioned or described. The evidence, however, indicates that the landowners, by this action, lost all access that they had to K-7 highway and specifically a 60-foot entryway on the west edge of the north 72 acres. They will continue to have access to K-10 highway through one 60-foot entryway along the north line of their property. It appears that there is a further unused entry at the northeast corner of the property onto old K-10 highway, or Midland Drive, which remains undisturbed by this taking. Finally, the parties agree that the landowners’ entry from their south boundary line onto 71st Street remains unchanged. Access from the southern part of the land to K-7 highway was along 71st Street. The City agrees that the intersection of K-7 and 71st Street will be closed as a result of this project. Hereafter access from the southern part of appellees’ land to K-7, according to maps in evidence, will be only by a circuitous route over county roads. Instead of access within one-quarter mile, the landowners or those seeking entry to the land from 71st Street will have to drive some three and one-half miles to the north and east or some nine miles to the south and east. There was testimony that large trucks might be able to make it, but with great difficulty. The tenant who farms the land and who comes down K-7 highway from the north will also have difficulty in transporting his machinery to the farm. The facts of this case are somewhat similar to the issues involved in Teachers Insurance & Annuity Ass’n of America v. City of Wichita, 221 Kan. 325, 559 P.2d 347 (1977). There, the construction of a limited access facility was accompanied by the building of a short street along and in front of plaintiff s property. Access to the limited access facility highway was not possible through the use of a frontage or service road, but by various circuitous routes ranging up to 1.75 miles in length. We held that lack of access was properly considered. While here the landowners’ access to their land from 71st Street is not taken, landowners’ loss of their K-7 entryway and the closing of the intersection between 71st Street and K-7 greatly impairs the landowners’ access to their farm and land. It makes it difficult if not impossible to route large trucks or machinery to the property. This interferes with the highest and best use of the land. As we said in U.S.D. No. 464 v. Porter, 234 Kan. 690, 694, 676 P.2d 84 (1984), “[W]e have long recognized a trial court has broad discretion in determining what evidence will be allowed in an eminent domain proceeding . . . .” Under the facts of-this case we hold that the trial court did not abuse its discretion in admitting evidence of the closing of the nearby intersection. The City next contends that the trial court erred in refusing to give the City’s proposed instruction No. 15. The proposed instruction reads as follows: “The court has determined as a matter of law that the closing of 71st Street is not a taking of such right of access in this case. The closing of 71st Street is a factor that you should not consider in determining the market value of the remainder.” The City asked that this be added to the language of a standard limited access instruction given by the trial court. What we have previously said about the admissibility of evidence of the closing of the intersection of 71st Street and K-7 highway is applicable here. In addition, the proposed instruction speaks of “the closing of 71st Street,” and is factually a misstatement, since 71st Street was not closed. Only its intersection with K-7 was affected. The trial court did not err in refusing to give the proposed instruction. Next, the City contends that the trial court erred in excluding evidence of three real estate sales which the City contended were comparable. The City originally proposed ten comparable sales. The trial court determined that three of the sales were not properly comparable and could not be used. The City added two additional sales, giving its experts a total of nine comparable sales upon which to base their testimony. The landowners had evidence of twelve comparable sales. All of the comparable sales, evidence of which was admitted by the trial court, were sales occurring since 1977. The three sales stricken by the trial court occurred seven or eight years prior to the date of taking. As we have previously noted, the trial court has broad discretion in determining what evidence will be admitted in an eminent domain proceeding. Excluding three remote sales, while permitting the parties to use evidence of twenty-one other sales, all of which were within four years of the date of taking, was certainly not an abuse of discretion on the part of the trial court. The best and most reliable evidence would of course be that of sales which were close in time to the date of taking. The trial court did not err in excluding evidence of the three remote sales. Finally, we come to the motions to assess costs. After the verdict was returned, the landowners filed a motion under K.S.A. 60-2002 to tax certain costs, including attorney fees, expert witness fees, and the cost of discovery depositions, claiming that the City’s conduct was unreasonable and oppressive. The trial court denied the motion. The City then filed a motion for the assessment of costs of frivolous claim under K.S.A. 60-2007, seeking reasonable attorney fees and expenses incurred by the City in opposing the landowners’ motion to tax costs, which the City characterized as frivolous and in bad faith. The trial court denied that motion. The denial of the City’s motion forms the basis for the last issue raised by the appellant, and the denial of the landowners’ motion forms the basis of the cross-appeal. ■ We have carefully reviewed the briefs and arguments of the pallies and the record. This case was ably tried by competent counsel. The fact that the landowners did not prevail in their motion to tax costs does not make the motion frivolous; a factual basis existed upon which the motion was based. We conclude, as did the trial court, that the City’s conduct was not unreasonable or oppressive and that the landowners’ motion was neither frivolous nor made in bad faith. The assessment of costs in the trial court is discretionary with that court. Negley v. Massey Ferguson, Inc., 229 Kan. 465, 472, 625 P.2d 472 (1981). The trial judge in this case did not abuse his discretion in denying both motions. The judgment is affirmed.	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The opinion of the court was delivered by: Lockett, J.: Todd Coley and Robert Cadden were convicted of separate offenses involving the use of firearms in Geary County District Court. At the time of sentencing for each defendant, the judge denied probation or parole finding he did not have jurisdiction to modify the sentence under K.S.A. 21-4618. Each defendant appealed. Since the issue presented in each case is identical, the appeals were consolidated. Coley was found guilty of unlawful use of weapons, making a terroristic threat, aggravated kidnapping, and rape, at a jury trial in Geary County District Court on March 31, 1983. Coley was sentenced to life imprisonment for aggravated kidnapping, five to 20 years for rape, one to two years for a terroristic threat, and six months in the county jail for unlawful use of a weapon, with each sentence to run concurrently. Coley appealed to the Supreme Court and, in an unpublished opinion, No. 55,634, filed February 18, 1984, this court affirmed the district court. Coley then filed motions for probation and for modification of the sentence. The sentencing judge ruled he had no jurisdiction to modify the sentence imposed or to grant probation because a firearm was used in commission of the crimes. Coley appealed. Cadden was charged with attempted second-degree murder, aggravated battery and aggravated assault in Geary County District Court on May 24, 1983, in connection with the shooting of Patrick J. McKeehan. On September 28, 1983, Cadden pleaded guilty to the aggravated battery charge, and the remaining counts were dismissed. Cadden was sentenced to three-to-ten years on the aggravated battery charge. Cadden moved for probation and modification of sentence. The sentencing judge declined to hear the motions finding that since a firearm had been used in the commission of the offense he had no jurisdiction to modify the sentence. Appellants argue that because the 1982 legislature amended K.S.A. 22-3717, K.S.A. 21-4618 should now be interpreted differently by this court. K.S.A. 1983 Supp. 22-3717(a) allows reduction of the mandatory sentence requirement of K.S.A. 21-4618 by the Secretary of Corrections. Appellants allege K.S.A. 21-4618 now binds the judge only at the original sentencing and does not preclude modification of the sentence by the judge within the 120-day period provided by K.S.A. 21-4603. The State argues that the intent of K.S.A. 21-4618 has not been changed by legislative amendment. K.S.A. 21-4618 provides as follows: “(1) Probation or suspension of sentence shall not be granted to any defendant who is convicted of the commission of the crime of rape, the crime of aggravated sodomy or any crime set out in article 34 of chapter 21 of the Kansas Statutes Annotated in which the defendant used any firearm in the commission thereof and such defendant shall be sentenced to not less than the minimum sentence of imprisonment authorized by law for that crime. This section shall apply only to crimes committed after the effective date of this act. This section shall not apply to any crime committed by a person under eighteen (18) years of age. “(2) When a court has sentenced a defendant as provided above, the court shall state in the sentencing order of the judgment form or journal entry, whichever is delivered with the defendant to the correctional institution, that the defendant has been sentenced pursuant to this section 21-4618 based on a finding by the court that a firearm was so used.” The legislature in 1976 enacted K.S.A. 21-4618 because of public concern over the increased number of crimes involving the use of firearms. The imposition of a mandatory minimum sentence where a firearm is used in the commission of specified crimes was a legitimate legislative effort to deter the use of a firearm. Denying the privileges of probation and parole and requiring a mandatory minimum sentence for specified crimes in which the defendant used a firearm in the commission of the crime is constitutionally permissible, and does not deny equal protection of the law to the individual so convicted. In State v. Rios, 225 Kan. 613, 592 P.2d 467 (1979), the defendant was convicted of aggravated robbery and sentenced to a term of five years to life in accordance with K.S.A. 21-4501(b) and K.S.A. 1978 Supp. 21-4618. Rios attempted to have his sentence modified arguing that 21-4618 had been complied with since he was originally sentenced in accordance with the statute; therefore, the court had jurisdiction to modify the sentence by granting probation or suspending imposition of the sentence. This court, noting State v. Stuart and Jones, 223 Kan. 600, 575 P.2d 559 (1978), disagreed, and determined if Rios’ position were correct, the trial court could, on motion for sentence modification, grant a disposition of the case that would have been an unlawful disposition at the time of the original sentencing. Such an interpretation would defeat the clear legislative intent of the mandatory sentencing statute. If Rios’ sentence had been greater than the minimum sentence, the trial court had jurisdiction under K.S.A. 21-4603 to modify the original sentence to no less than the minimum sentence required by law. Since Rios had already received the minimum sentence prescribed by law, the trial court had no jurisdiction to modify his sentence. Appellants claim that since Rios there has been a substantial change in the intent of the legislature. The appellants argue the legislature’s amendment of K.S.A. 22-3717 now changes the law which was in effect in Rios. Prior to being amended in 1982, the statute required anyone sentenced under K.S.A. 21-4618 to serve the entire minimum sentence imposed. Under K.S.A. 22-3717, as amended, an inmate may now have his mandatory sentence reduced by good time credits. Pertinent portions of the 1982 amendments read: “An inmate, including an inmate sentenced pursuant to K.S.A. 21-4618, shall be eligible for parole after serving the entire minimum sentence imposed by the court, less good time credits.” L. 1982, ch. 150, sec. 2 (a). “As used in this section, ‘good time credits’ means credits of one day for every three days served and one month for every year served, awarded on an earned basis pursuant to rules and regulations adopted by the secretary of corrections.” L. 1982, ch. 150, sec. 2 (1). K.S.A. 1983 Supp. 22-3717 now allows inmates under the custody of the Secretary of Corrections to have their minimum sentence reduced by good time credits. The statute applies only to the Kansas Adult Authority. Under the statute the authority to release inmates sentenced pursuant to K.S.A. 21-4618 on parole prior to serving the entire minimum sentence imposed by the court is vested in the sound discretion of the Kansas Adult Authority, not to judges. The clear legislative intent was to allow inmates sentenced pursuant to K.S.A. 21-4618 to earn good time credits as a reward for their conduct while imprisoned. It does not grant jurisdiction to the sentencing judge to modify the original sentence prescribed by K.S.A. 21-4618. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. Randall v. Seemann, 228 Kan. 395, 613 P.2d 1376 (1980). It is presumed that the legislature, in amending a statute, acted with full knowledge and information as to the subject matter of the statute, as to prior and existing legislation on the subject of the statute, and as to judicial decisions with respect to prior and existing law. See Szoboszlay v. Glessner, 233 Kan. 475, 664 P.2d 1327 (1983). The power to prescribe a sentence to be imposed for a crime rests with the legislature. The power of the legislature with respect to punishment is controlled only by the Constitutions of the United States and the State of Kansas. K.S.A. 21-4618 applies to the courts and sentencing. K.S.A. 1983 Supp. 22-3717 applies to the Kansas Adult Authority and parole. There is no evidence from which to infer that the legislature intended the amendment of 22-3717 to mean that it wanted to take a less strict approach toward sentencing where the crime involves the use of firearms. To allow a judge to modify a sentence mandated under K.S.A. 21-4618 or grant probation within 120 days as provided in K.S.A. 21-4603 would defeat the legislative purpose of 21-4618. K.S.A. 21-4618 is clear and unambiguous; the legislature intended that any defendant who is convicted of one of the specified crimes in which a firearm is used in the commission of that crime be sentenced to not less than the minimum sentence of imprisonment authorized by law for that crime. The district court is affirmed in Nos. 56,891 and 56,902.	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The opinion of the court was delivered by Prager, J.: This is a consolidated action to recover damages for wrongful deaths and personal injuries arising out of an automobile collision which occurred on the Kansas Turnpike on November 5, 1978, in Leavenworth County. The factual circumstances surrounding the accident were essentially undisputed and involved a high-speed, head-on collision between a 1974 Ford pickup truck driven by Richard C. Jones and a 1973 Chevrolet Monte Carlo which was towing a 1972 Chevrolet Vega by use of a rented U-Haul trailer hitch and towbar. Simply stated, the collision was caused by the negligence of the driver of the Ford pickup, Jones, who was proceeding east on the turnpike and lost control of his vehicle when he apparently fell asleep. The Ford pickup proceeded out of the east lanes of traffic, across the center median strip, and into the westbound lanes of traffic where it collided head-on with the 1973 Monte Carlo driven by Rogell C. Betts. Five members of the Betts family were passengers in the Monte Carlo. Witnesses to the accident estimated the speed of the Ford pickup to be greater than 60 miles per hour and the speed of the Monte Carlo to be greater than 40 miles per hour. Thus, the combined speed of the two vehicles was approximately 100 miles per hour. The head-on collision between the Ford and the Monte Carlo was immediately followed by a second collision between the rear of the Monte Carlo and the towed Vega when the U-Haul towbar mechanism came apart during the initial impact. According to the evidence, the separation of the trailer hitch and towbar raised the rear of the Monte Carlo, permitting the towed Vega to drive forward and underride the Monte Carlo by some four feet. The towbar, still attached to the front of the Vega, was driven into the fuel tank of the Monte Carlo causing a puncture. As a result, gasoline escaped from the fuel tank and a fire occurred. It also appears that gasoline escaped from the fuel tank of the Ford truck, which contributed to the fire. Following the collision, several people attempted to put the fire out and to open the doors of the Monte Carlo to rescue the people inside. A state trooper was able to remove Ulysses Betts, a five-year-old child, from the burning car. He was the only survivor. The other five occupants of the Monte Carlo and Jones, the driver of the Ford pickup, were killed in the accident. This litigation followed. The plaintiffs are the heirs-at-law of the five occupants of the Monte Carlo who were killed in the accident and Ulysses Betts, who suffered personal injuries. The plaintiffs alleged negligence and product liability against various defendants for their respective roles in causing the accident or in designing and manufacturing products involved. Named as defendants were the following: The estate of Richard C. Jones, driver of the Ford vehicle; U-Haul International, Inc., the rental company which furnished the trailer hitch and towbar; General Motors Corporation; Ford Motor Company; and the Kansas Turnpike Authority. All defendants in the litigation except General Motors Corporation settled with the plaintiffs prior to trial. The plaintiffs based their claim of liability against General Motors on defective design and manufacture of the Monte Carlo, referring specifically to the location of the fuel tank of the vehicle. Plaintiffs’ theories of liability included negligence, strict liability in tort, and breach of implied warranty. Simply stated, the plaintiffs maintained that General Motors was liable as a manufacturer for the design and installation of a fuel tank at a location where it was likely to rupture in a collision and cause a gasoline fire. As designed and installed, the fuel tank was located at a point under the trunk of the Monte Carlo. Plaintiffs contended that this was unsafe and that a properly designed fuel tank would have been located over the rear axle of the vehicle, where it would have been better protected and not as susceptible of being crushed or penetrated in the event of a collision. General Motors took the position that the under-the-trunk fuel tank location was a well conceived, well executed, and reasonably safe design. General Motors conceded that an over-the-axle location for a fuel tank was feasible as an alternative design. It did not contend that the over-the-axle design was per se unreasonably dangerous. Prior to trial, the court on motion of General Motors bifurcated the issues of liability and damages so that in Phase I of the trial, the fault, if any, of General Motors, U-Haul, Richard C. Jones, and the Kansas Turnpike Authority would be considered and determined by the jury. Also, the liability of General Motors for punitive damages was to be determined during Phase I of the trial. Trial by jury commenced on April 6, 1983, and was concluded on May 4, 1983, when the jury returned an 11-1 verdict in favor of General Motors. The jury by its special verdict found that the location of the fuel tank on the 1973 Chevrolet Monte Carlo did not render the vehicle defective or unreasonably dangerous and that General Motors exercised reasonable care in the design and location of the fuel storage system. The trial court entered judgment on the verdict in favor of General Motors. The plaintiffs appealed. At the outset, it should be noted that the case was well tried by competent trial counsel over a period of four weeks. Both plaintiffs and General Motors called to the witness stand well qualified experts in the automotive engineering field. As would be expected, the experts disagreed in their ultimate opinions in the case. Ninety separate exhibits were admitted at the trial to demonstrate to the jury the various approaches taken in the design and location of automobile fuel tanks. Plaintiffs’ experts testified as to the alternative designs available within the existing automotive technology. Evidence was presented in the form of publications, government-sponsored research and development programs, automotive industry research and development work, production vehicles from foreign and domestic manufacturers, and research and development work conducted by private industry and educational institutions. Evidence was presented analyzing crash tests performed on vehicles equipped both with under-the-trunk fuel tanks and over-the-axle fuel tanks. The nature and characteristics of the 1973 Chevrolet Monte Carlo, and its design and classification in the automobile industry were thoroughly explored. There was testimony as to the forces exerted on a fuel tank when crashes of various kinds occur. There was evidence as to design techniques used to protect fuel tanks from rupture and penetration by foreign objects. Plaintiffs’ experts testified that the 1973 Chevrolet Monte Carlo under-the-trunk fuel tank was negligently designed, defective, and unreasonably dangerous because it was located in a prime crash site where it was subject to puncture, rupture, crushing, and bursting in foreseeable collisions. Each of them testified that a reasonably safe alternative design was a fuel tank location over the rear axle which was utilized in other General Motors vehicles. If the jury had accepted that testimony, it could have brought in a verdict in favor of the plaintiffs supported by substantial, competent evidence. General Motors likewise paraded before the jury its engineering experts. They agreed that an over-the-axle location for the fuel tank was an alternative design then in use on various automobiles. These witnesses were of the opinion that a comparison between the over-the-axle location and the under-the-trunk location could properly be made only by considering such factors as the size, weight, and function of the particular automobile. They testified that the under-the-trunk design was a safer design for the 1973 Chevrolet Monte Carlo involved in the collision. Defendant’s experts explained at the trial that the Monte Carlo, as the 1973 “A” car, was a new vehicle and consequently the design engineers were free to change the fuel tank storage system, including the location of the fuel tank. The evidence presented by General Motors showed that its designers initially preferred the over-the-axle fuel tank location for both safety reasons and for compliance with new and more stringent evaporative emissions requirements. However, after further engineering consideration, the design engineers concluded that because of the proximity of the fuel tank to the trunk, the over-the-axle design was particularly vulnerable to puncture from ordinary trunk contents, such as jacks, tools, and the like. It was their opinion that the under-the-trunk fuel tank location better utilized the crush characteristics of the rear structure of the vehicle to protect the integrity of the fuel tank during an impact. These experts also indicated a number of other factors which caused them to arrive at their conclusion that the under-the-trunk location better satisfied goals of safety and integrity for fuel tank performance than the alternative over-the-axle location proposed by plaintiffs’ experts. There was extensive evidence that General Motors had used the over-the-axle location for the fuel tank on other General Motors automobiles of a different size and design. There was evidence that General Motors had conducted front-to-rear and front-to-front test crashes on “A” cars in order to generate data to compare the performance of the two designs. These tests were conducted on “A” cars with both over-the-axle and under-the-trunk fuel tanks. The testimony was conflicting with respect to the comparative costs of these two fuel storage system designs. The jury heard evidence that the over-the-axle design both was and was not a more expensive design than the under-the-trunk design. Suffice it to say, there was substantial, competent evidence presented at the trial which supported the verdict of the jury that General Motors was not at fault. With this summary of the testimony in mind, we now turn to the issues raised by plaintiffs on the appeal. Plaintiffs first contend that the trial court erred in refusing to admit relevant evidence as to General Motors’ knowledge of a safer design, its motives for not changing the design, and evidence of subsequent design changes. Plaintiffs argue that the trial court committed reversible error by excluding 316 different exhibits, of which only four exhibits were actually offered at the trial by the plaintiffs. Prior to trial, General Motors filed several motions in limine to exclude certain exhibits and other evidence from admission at the trial. As we analyze the record, these various motions were determined in an order of the trial court dated April 6,1983, prior to the beginning of the trial. In that order, the trial court stated specifically that an order on a motion in limine is not the final ruling on the admissibility of evidence but is binding on the parties and counsel until further order of the court. The court then proceeded to consider various exhibits which had been identified by the plaintiffs and different rulings were made on their admissibility. Certain exhibits pertaining only to damages were excluded from Phase I of the trial because the only issue to be determined was the liability of General Motors. Objections'to certain exhibits were overruled by the trial court on the presumption that proper foundation would be presented by plaintiffs at the trial. The court reserved judgment on one exhibit which had never been filed with the court and was, therefore, unavailable for review by the court. One exhibit, a copy of a speech presented by an expert to the Society of Automotive Engineers, was excluded as hearsay, since the person who made the speech was not available as a witness. The court sustained General Motors’ objection until such time as the plaintiffs could establish that the document was admissible under one of the exceptions to the hearsay rule and that it was essential or directly related to one of the issues in the case. The court declined to rule as a matter of law that certain proffered evidence relating to the safety and design of other vehicles was inadmissible in the case. Defendant’s motion in that regard was denied. As to many of the exhibits which defense counsel sought to exclude, the motion to exclude was sustained subject to the right of plaintiffs at the trial to establish their admissibility. The court reserved decision on a number of exhibits until such time as there was an opportunity for the court to inspect them. We have no difficulty at all in concluding that the trial court did not make any final order excluding plaintiffs’ exhibits. It simply required counsel for the plaintiffs to lay an appropriate foundation at the trial to establish their relevancy and competency. If plaintiffs’ counsel wanted these excluded exhibits to go into evidence, they were given the opportunity to present them for consideration by the trial court. As to those exhibits not offered at the trial, we cannot say that the trial court erred in its rulings. It is important to note that General Motors, through its experts, never did deny the feasibility of the over-the-axle location of a fuel tank in the 1973 Chevrolet Monte Carlo. Clearly, that location was utilized in other vehicles of a different design and weight. The fact that the over-the-axle location was utilized in vehicles manufactured by General Motors and other companies was never disputed. The basic issue in the case was whether the location of the fuel tank under the trunk rendered the 1973 Monte Carlo defective as being unreasonably dangerous. We hold that the trial court did not err in excluding certain exhibits pertaining to alternative designs. In fact, evidence of alternative designs in other vehicles was admitted at the trial. The General Motors experts frankly admitted that they had knowledge of alternative designs, and both parties introduced evidence of General Motors’ own tests involving the performance of vehicles with both types of designs. We have also concluded that the trial court did not commit error in excluding certain evidence as to Federal Motor Vehicle Safety Standard 301. In fact, the trial court permitted testimony regarding the existence of proposed standards as evidence of the considerations underlying General Motors’ design and development of the 1973 Chevrolet Monte Carlo. The trial court emphasized in its ruling that Safety Standard 301 was a proposed standard and not an adopted standard for rear impact testing of vehicles. The plaintiffs themselves did not deny that the 1973 Chevrolet Monte Carlo was in compliance with all applicable federal standards then in effect. Also it should be noted that exhibits pertaining to the proposed standards were excluded for a number of reasons including hearsay objections. Evidence in regard to General Motors’ Experimental Safety Vehicle was excluded by the trial court on the basis that that vehicle was a factually dissimilar vehicle to the 1973 “A” car and, therefore, the evidence was not relevant to the issue of the safety of the 1973 Monte Carlo. We find no error here. We likewise conclude that the trial court did not commit error in excluding certain evidence of the location of fuel tanks on later models of General Motors vehicles on the grounds that it was cumulative and potentially prejudicial. There was a great amount of evidence admitted at the trial pertaining to cars both similar to and different from the 1973 Chevrolet Monte Carlo. This court on a number of occasions has held that a trial court has a right to reject relevant testimony where the evidence is cumu lative of facts established or where the probative value of the relevant evidence is outweighed by the risk of placing undue emphasis on some phase of the lawsuit with possible prejudice resulting. Talley v. J & L Oil Co., 224 Kan. 214, 220, 579 P.2d 706 (1978); State v. Davis, 213 Kan. 54, 57, 515 P.2d 802 (1973); K.S.A. 60-445. In Van Hoozer v. Farmers Insurance Exchange, 219 Kan. 595, Syl. ¶ 11, 549 P.2d 1354 (1976), it is stated: “A trial judge has the discretion to exclude relevant evidence if he finds its probative value is substantially outweighed by its prejudicial nature.” Considering the entire record, the posture of the case, the issues, and the relevant evidence which had already been admitted, we hold that the trial court did not abuse its discretion or commit reversible error in the evidentiary rulings complained of by the plaintiffs. The plaintiffs’ second point on the appeal is that the trial court erred in failing to instruct the jury on the so-called risk/utility balancing test rather than the consumer expectation test. The consumer expectation test was adopted by this court in Lester v. Magic Chef, Inc., 230 Kan. 643, 641 P.2d 353 (1982). There the risk/utility balancing test was rejected. This decision was reaffirmed in Barnes v. Vega Industries, Inc., 234 Kan. 1012, 676 P.2d 761 (1984). The court has considered the contention of the plaintiffs in this case that the risk/utility test should be adopted. A majority of the court adhere to the consumer expectation test approved in Lester and Barnes. We hold there was no error in this regard. The contention of the plaintiffs that the trial court excluded certain relevant evidence because it applied the consumer expectation test is wholly without merit. The instruction given to the jury setting forth the test to be applied in determining whether a product is unreasonably dangerous really has nothing to do with the scope of evidence offered at the trial. In a products liability case involving a claimed design defect, the parties at the trial may present evidence as to the degree of the likelihood of harm'from an intended and reasonably foreseeable use of the product and the feasibility of a safer design. Likewise, evidence may be introduced as to the importance of the need or needs served by the product and its design, the technical and economic feasibility and practicability of serving those needs with a safer design, and the availability of other products, if any, to serve the same needs. Garst v. General Motors Corporation, 207 Kan. 2, 484 P.2d 47 (1971). We find no error in the court’s instructing the jury on the consumer expectation test as the basis to determine whether a product is unreasonably dangerous. The third point raised by plaintiffs on the appeal is that the trial court abused its discretion in ordering a bifurcated trial on the issues of liability and damages. In its order, the tidal court indicated that one jury would be empaneled to resolve all issues presented in the case. However, the trial would be in two stages. In Phase I, the jury would determine if General Motors or other defendants were liable to the plaintiffs on a theory of negligence or strict liability. If the jury found General Motors at fault, the jury would then in Phase II of the trial determine the percentage of fault and determine the damages. The court stated its reasons for bifurcating the order. The court pointed out the advantages of a bifurcated trial in terms of jury comprehension of the issues, economy of court time, and reducing the trial expenses to the parties. It noted that the additional expenses of time and resources might be unnecessary if determination of the fault issues made the damages issues moot or enhanced the prospects of settlement. One of the stated reasons for the order of bifurcation was that there were six separate plaintiffs, each maintaining multiple causes of action, requiring at least twelve separate determinations of fault, eleven determinations of actual damages, and six punitive damage decisions. These determinations by the jury would be simplified for the jury in a bifurcated trial. General Motors stipulated, and the jury was instructed, that at least one of the plaintiffs’ decedents survived the impacts without suffering life threatening injuries, was conscious, and, thereafter, died as a result of the thermal burn injuries. In Phase I of the trial, the plaintiffs were authorized to introduce evidence establishing that there was a design defect in the 1973 Monte Carlo which caused unreasonable danger to the ordinary user and which was foreseeable to the manufacturer. The plaintiffs were also authorized to introduce evidence on the issue of wantonness. We find no error in the order of the trial court bifurcating the trial. Such an order is authorized by K.S.A. 60-242(b) which provides, in substance, that in furtherance of convenience, to avoid prejudice, or when separate trials will be conducive to expedition and economy, the judge may order a separate trial of any claim or any separate issues “always preserving inviolate the right of trial by jury.” The same issue presented here was before the court in Tilley v. International Harvester Co., 208 Kan. 75, 81, 490 P.2d 392 (1971). In Tilley, the court stated that the legislative intent behind K.S.A. 60-242(b) leaves to the discretion of the trial court whether or not certain issues should be separated for trial. We have no hesitancy in holding that the trial court did not abuse its discretion in its order bifurcating the trial in this case. The plaintiffs’ final point is that the cumulative effect of the trial court’s evidentiary rulings, together with the failure of the court to give the requested risk/utility instruction, and the court’s bifurcation order, denied the plaintiffs their right to a fair trial. This point involves essentially the same arguments presented in the points discussed above. We find it to be without merit. We now turn to the cross-appeal filed by General Motors from the order of the district court denying its motion for extraordinary costs to be taxed against the plaintiffs pursuant to K.S.A. 60-2002. The trial court, in its ultimate decision, awarded the statutory items usually allowable as costs under K.S.A. 60-2003. General Motors sought additional costs from the plaintiffs in the amount of $86,416.14, covering the cost of depositions and transcripts, travel expense of witnesses incurred in taking depositions, storage expense of the accident vehicles, expenses incurred in photographing and producing meeting minutes, expenses incurred in preparation of trial exhibits, including photographs and rental of video equipment, crash statistic charts, purchase of exemplary vehicles for display at the trial, engineering services for conducting crash tests, and other unpaid costs of discovery. In denying these unusual costs, the trial court noted that costs are not routinely assessed against the losing party other than statutory costs. The court was concerned that routinely assessing such extraordinary costs to a losing plaintiff would cause a “chilling effect” which would serve to limit the traditional right of free access to courts. The court cited a number of decisions to the effect that there is no right to recover costs except as authorized by statute. The court noted that the assessment of costs is discretionary with the trial court, and that the taxing of costs by a trial court will be reviewed only as an abuse of discretion. The trial court stated it believed that in order to grant the defendant’s motion in this case, the plaintiffs’ cause of action or conduct in prosecuting same must be found to be wrongful in some respect, as being frivolous, without probable cause, or brought for purposes of harassment. The court could not find that any of these elements existed in the plaintiffs’ cause of action or conduct and, therefore, denied the motion. We find no error in the trial court’s order. This court in Negley v. Massey Ferguson, Inc., 229 Kan. 465, Syl. ¶ 4, 625 P.2d 472 (1981), stated that the taxing of costs by the trial court will be reviewed only to determine an abuse of discretion. It has been held that costs for preparation for trial are not ordinarily recoverable as costs. Also, discovery depositions by their very nature fall within the realm of trial preparation and are ordinarily not recoverable as costs unless used as evidence. Wood v. Gautier, 201 Kan. 74, 79, 439 P.2d 73 (1968). The 1982 legislature adopted K.S.A. 60-2007, which provides for the assessment of additional costs including attorney fees and expenses incurred by the prevailing party, if the court finds that a party, in a pleading, motion or response thereto, has asserted a claim or defense and has denied the truth of a factual statement in a pleading or during discovery, without a x'easonable basis in fact and not in good faith. Likewise, under that statute, an attorney may be held individually or jointly and severally liable with a party for such, additional costs, where the court finds that the attorney knowingly and not in good faith asserted such a claim, defense or denial ox-, having gained knowledge of its falsity, failed to inform the court promptly that such claim, defense or denial was without reasonable basis in fact. Subsection (d) states that the purpose of this section is not to pi-event a party from litigating bona fide claims or defenses, but to px'otect litigants from harassment and expense in clear cases of abuse. We agree with the trial court that the record in this case does not show that the action brought by the plaintiffs did not have a reasonable basis in fact and was not brought in good faith. There was substantial, competent evidence pi-esented by both sides which would have supported the verdict of a jury for either the plaintiffs or the defendant. We have no hesitancy in holding that the trial court did not abuse its discretion in denying extraordinary costs to General Motors in this case. For the reasons set forth above the judgment of the district court is affirmed on both the appeal and cross-appeal.	[ -16, 106, -48, 44, 43, 106, 10, 10, 123, -57, 53, 19, -91, -53, 4, 101, -1, 29, -43, 107, -73, -77, 23, -105, -106, -89, -71, -51, -109, 73, 108, 115, 76, 112, -54, 85, 38, 10, 84, 124, -50, 12, -71, -28, 89, 18, -74, 122, -42, 15, 113, 15, -61, 46, 26, -57, 109, 40, 107, -86, -47, -79, -59, 5, 78, 16, -95, 100, -98, 1, -40, 27, -100, -79, 120, -8, 115, -90, -45, -28, 97, -119, 8, 38, 98, 33, 21, -115, -19, -104, 14, -14, 47, -115, -70, 88, 49, 66, -97, 29, 122, 18, 9, 122, -8, 20, 93, 104, 17, -53, -112, -79, -19, 114, -100, 105, -21, -121, 34, 117, -19, -14, 78, 69, 127, -69, 87, -42 ]
The opinion of the court was delivered by Lockett, J.: This is an appeal from the District Court of Ford County. The trial judge reversed the findings and rulings of the Secretary of Human Resources and found certain persons selling vacuum cleaners were independent contractors rather than employees. The plaintiff, Vernon O. Wallis (Wallis), is the proprietor of Kirby Vacuum Cleaner Co. (Kirby), Dodge City, Kansas. The Kansas Department of Human Resources (KDHR) conducted a hearing on December 21, 1981, to determine whether individuals who are dealers of Kirby Vacuum Cleaners were employees of Wallis or were independent contractors under K.S.A. 44-703(i)(l)(B) and K.S.A. 44-703(i)(3)(D). The hearing officer made findings of fact and determined that the dealers were employees and not independent contractors and that assessments of unemployment taxes made by the KDHR against plaintiff for such individuals were owed. Wallis requested a review by the Secretary of Human Resources (Secretary). The Secretary adopted the hearing officer’s findings of fact and determined the individuals were employees of Wallis, not independent contractors. Wallis petitioned for judicial review pursuant to K.S.A. 44-710b(b). The district court heard the matter on January 14, 1983, and issued a decision containing findings of fact and conclusions of law. The district court adopted the findings of fact of the hearing officer, and found the jurisdiction of the district court was confined to questions of law. The district court determined that the dealers were independent contractors, not employees under common law rules and statutory definitions, and accordingly abated the taxes collected. The findings of fact adopted by the district court are: “(1) Vernon O. Wallis hereinafter referred to as the appellant, is the proprietor of Kirby Vacuum Cleaner Company of Dodge City, Kansas performing services at 306 West Highway 56, Dodge City, Kansas. Mr. Wallis is a direct factory distributor of the Kirby Company including all accessories to the sweeper, customarily produced by such company. Mr. Wallis is the distributor for the western section of the State of Kansas. “(2) Within the premises found at 306 West Highway 56, Dodge City, Kansas, are housed a service technician, an office for Mr. Wallis, and a display area wherein two secretaries perform the clerical function of the business. Incorporated within the duties of the secretaries is the sale of the product to those who might enter the premises to purchase the cleaner or accessories thereto on a retail basis. “(3) Mr. Wallis is in the business of selling vacuum sweepers generally on a door-to-door basis within area of the distributorship. To accomplish the aforego ing, Mr. Wallis recruits through advertisements and by word of mouth potential ‘dealers’ to carry out the sale of vacuum sweepers within his distributorship. Prior to beginning the process of selling, dealers sign what is designated as an independent dealer agreement as set forth in Exhibit #1 during the course of the hearing. “(4) The newly associated dealers began a training course carried out by key personnel including Mr. Wallis, his son, Mr. Cole, and other experienced and qualified sales personnel. New dealers are oriented with the product and counselled with regard to beneficial sales techniques with reference to such product. New dealers are accompanied by more experienced dealers during the early course of their sales experience on a door to door basis. Each dealer receives ‘a sales kit’ from Mr. Wallis. “(5) A ‘sales receipt’ is effectuated between the dealer and the distributor to provide the dealer with a vacuum sweeper to sell. The receipt requires the dealer to be Responsible to the distributor for the machine and its value irrespective of damage or loss to the machine while in the keeping of the dealer. The dealers are expected to compensate Mr. Wallis for the machine within a 30 day period from the date the receipt is effectuated. The machine dispersed by Mr. Wallis may be returned if unsold. “(6) Dealers in an effort to sell Kirby vacuum sweepers, are not compensated or reimbursed for expenses incurred nor do they receive a minimum salary or other fringe benefits save only what has been eluded to on page 69 and 70 of the transcript as a profit sharing plan provided by Mr. Wallis to his dealers. The profit sharing plan is to help compensate those who train other dealers as such new dealers will sell the product therein creating more revenue for dispersal among those who share within the plan. Dealers generally are free to establish their own hours of service and the territories they shall serve. “(7) Dealers who are distributed to by Mr. Wallis are not responsible for the repossession of sweepers previously sold. Dealers are provided no office space to perform services within, and do not sell competing products. Dealers may negotiate the price of the product to the customer with the proceeds and the contract of sale to be reviewed for acceptance by the distributor, in this instance, Mr. Wallis, as set forth on page 19, line 6. Dealers do not service the equipment sold and must complete and process warranty cards prior to their receipt of the proceeds from the sale. All monies as herebefore set out are deposited with Mr. Wallis then dispensed back to the dealer subsequent to the three day waiting period required under Kansas Statutory Law for sales of this nature. “(8) In Section 8 of the Independent Dealer Agreement as herebefore set out, are set forth the provisions of the time for which this agreement is entered into and the right of either party to cancel such agreement. Mr. Wallis, as a distributor, provides that within 30 days written notice the agreement may be terminated with a dealer and vice versa. The distributor may withhold the product to he sold by dealers as another avenue to terminate the agreement as herebefore set out. Mr. Wallis as set forth in line 23 of the transcript on page 28, further terminates the agreement in those instances wherein he finds the dealer to be not representative of the product or the product line as he shall ‘let him go’ with reference to a dealer who does not conform with the expectations of the distributor. “(9) The dealer who sells Kirby vacuum sweepers on a door-to-door basis has not a business to offer for sale within the market place. The dealer must work through the distributor or other dispersing agents of the Kirby Company to obtain the product he or she sells to the customer.” After receiving the decision of the court dated January 27, 1983, but prior to the filing of the Journal Entry, KDHR filed a first Notice of Appeal on February 28, 1983. The Journal Entry was filed on May 9,1983. On May 31,1983, KDHR filed a second Notice of Appeal. KDHR raises two issues: 1. Whether the district court applied the proper standard for a review of an administrative officer’s findings of fact under K.S.A. 44-710b(b). 2. Whether the district court correctly determined the question of law based on the findings of fact. The statutory provision granting judicial review of decisions rendered by the Secretary concerning tax assessments is K.S.A. 44-710b(b). The relevant part of the statute states that “In any proceeding under this subsection the findings of the secretary of human resources as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive and the jurisdiction of said court shall be confined to questions of law.” The only case in which this section of the statute has been mentioned is Wesley Medical Center v. McCain, 226 Kan. 263, 597 P.2d 1088 (1979). The case actually dealt with the constitutionality of the Kansas Employment Security Act. The court held the Act did not violate either the due process or equal protection clauses of the 14th Amendment to the Constitution of the United States or Section 18 of the Bill of Rights of the Constitution of the State of Kansas. In one paragraph, Justice Herd mentioned the pertinent section of the statute: “As a parting shot under the second issue of error, appellants argue the ‘array method’ of computing contribution rates under K.S.A. 1975 Supp. 44-710a was not followed by the Department of Human Resources in determining appellants’ rate. This is a question of fact. On appeal this court’s jurisdiction is confined to questions of law if the Secretary of Human Resources’ findings are supported by some evidence, absent fraud. K.S.A. 1978 Supp. 44-710b(fc). There is no allegation or evidence of fraud against the Secretary of Human Resources and we find there is evidence to support his findings. The findings of the Secretary of Human Resources will therefore not be disturbed.” 226 Kan. at 272. The KDHR argues that since the McCain case said only “some” evidence was needed to support the Secretary’s find ings, the district court should not have reversed the Secretary. Wallis, however, argues that “substantial” evidence is required before a district court must follow an administrative decision. The statute itself says only “evidence.” At the judicial review, the district judge stated that he would examine the evidence to determine “whether or not there is substantial evidence”; that determination was never made since the judge made no findings of fact but adopted the findings of fact of the hearing officer. Where the district court adopts the hearing officer’s findings of fact in total, it is then limited by K.S.A. 44-710b(b) to considering questions of law. The trial judge correctly stated the question of law to be: “Do the findings of fact create an employee-employer relationship as a matter of law?” To make that determination the district court, when reviewing the Secretary’s ruling, considers the statutes and Kansas cases discussing the employer-employee relationship. K.S.A. 44-703(i)(l)(B) provides: “(i) ‘Employment’ means: “(1) Subject to the other provisions of this subsection, service, including service in interstate commerce, performed by “(B) Any individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an employee.” K.S.A. 44-703(i)(3)(D) provides: “(D) Services performed by an individual for wages or under any contract of hire shall be deemed to be employment subject to this act unless and until it is shown to the satisfaction of the secretary that: (i) Such individual has been and will continue to be free from control or direction over the performance of such services, both under the individual’s contract of hire and in fact; and (ii) such service is either outside the usual course of the business for which such service is performed or that such service is performed outside of all the places of business of the enterprise for which such service is performed.” Where the findings of the hearing officer and the Secretary are contrary to the evidence, it presents a question of law which is always open to review by the courts. In reviewing questions of law, the trial court may substitute its judgment for that of the agency, although ordinarily the court will give great deference to the agency’s interpretation of the law. Richardson v. St. Mary Hospital, 6 Kan. App. 2d 238, 242, 627 P.2d 1143, rev. denied 229 Kan. 671 (1981). The hearing officer based his ruling on K.S.A. 44-703(i)(1)(B), K.S.A. 44-703(i)(3)(D), and McCarty v. Great Bend Board of Education, 195 Kan. 310, 403 P.2d 956 (1965). McCarty is a workers’ compensation case. The defendants claimed McCarty was an independent contractor at the time of his injury. In discussing the applicable rules, this court stated: “[A]n independent contractor is one who, in the exercise of an independent employment, contracts to do a piece of work according to his own methods and who is subject to his employer’s control only as to the end product or final result of his work. (Krug o. Sutton, 189 Kan. 96, 366 P.2d 798.) On the other hand, an employer’s right to direct and control the method and manner of doing the work is the most significant aspect of the employer-employee relationship, although it is not the only factor entitled to consideration. An employer’s right to discharge the workman, payment by the hour rather than by the job, and the furnishing of equipment by the employer are also indicia of a master-servant relation. (Jones v. City of Dodge City, [194 Kan. 777].)” 195 Kan. at 311-12. The McCarty court found more of these factors present than not and ruled the plaintiff was an employee. An independent contractor is generally described as one who, in exercising an independent employment, contracts to do certain work according to his own methods, without being subject to the control of his employer, except as to the results or product of his work. There can be no absolute rule for determining whether an individual is an independent contractor or an employee. It is the facts and circumstances in each case that determine whether one is an employee or an independent contractor. Under K.S.A. 44-703(i)(l)(B) the court must look to case law to determine when there is an employer-employee relationship. This court has often been asked to determine whether an individual is an employee or an independent contractor under the common law. It is often difficult to determine whether a person is one or the other, since there are elements pertaining to relations which occur without being determinative of the relationship. There is no exact method which may be employed to determine whether one is an employee or an independent contractor. The primary test used by the courts in determining whether the employer-employee relationship exists is whether the employer has the right of control and supervision over the work of the alleged employee, and the right to direct the manner in which the work is to be performed, as well as the result which is to be accomplished. It is not the actual interference or exercise of the control by the employer, but the existence of the right or authority to interfere or control, which renders one a servant rather than an independent contractor. Jones v. City of Dodge City, 194 Kan. 777, 402 P.2d 108 (1965). In Phillips Pipe Line Co. v. Kansas Cold Storage, Inc., 192 Kan. 480, 389 P.2d 766 (1964), one issue was whether a certain individual was an employee or an independent contractor. A landowner hired the person to clean silt out of a drainage ditch at a specified rate of pay per hour. No directions were given as to how the work was to be done and it was done by the workman with*his own equipment according to his own methods. In determining as a matter of law that the relationship was that of independent contractor, this court stated: “At most, Phillips’ evidence disclosed that Wirth entered into a contract with Steele whereby Steele was to clean the silt out of the north drainage ditch at a predetermined rate per hour. Nothing else was said; no specifications were given, and the manner in which the work was to be done was left entirely up to Steele. While Phillips’ evidence was that Wirth inspected the work and conversed briefly with Steele’s employee Southworth, it can by no means be inferred that he reserved the right to direct and control the means or method of performing the work. Wirth’s and the appellant’s interest was in the result of the undertaking, that is, having the ditch cleaned of silt rather than in the particular method or means by which it was accomplished, and as previously indicated, no right of control was retained by Wirth on his behalf or the appellant’s behalf. “The appellee suggests that since Steele was to be paid at an hourly rate for the work, this was strong evidence of an employer-employee relationship existing between Wirth, the appellant, and Steele. The point is not well taken. In Smith v. Brown, 152 Kan. 758, 107 P.2d 718, evidence of payment at an hourly rate for services was introduced in support of an employer-employee relationship, but this court determined that the general law was applicable; that it was the question of the right of control which determined the relationship and affirmed the trial court’s order sustaining a demurrer to the plaintiff s evidence.” 192 Kan. at 485-86. There are no Kansas cases with facts similar to those of this case. There are, however, several cases from other jurisdictions with similar facts. In Kirby Co. of Bozeman v. Employment Sec., _ Mont. _, 614 P.2d 1040 (1980), a vacuum cleaner distributor filed a petition for judicial review of the decisions of the Board of Labor Appeals finding that the distributor’s dealers were employees within the meaning of the state unemployment insurance law. The plaintiff was a direct factory distributor of vacuum cleaners, purchasing the products directly from the manufacturer and selling them to area distributors and dealers. The dealers were recruited by Kirby. Salespersons signed a one-year written agreement when they became dealers. A Kirby officer gave product demonstrations to new dealers, provided a sales guide booklet, conducted sales clinics for the dealers and furnished leads to the dealers. No hours or territories were set for the dealers, who were not reimbursed for expenses, guaranteed minimum earnings or provided with any fringe benefits. Dealers bought the products from Kirby for cash or on a 30-day open account. Dealers could resell the products at any price and negotiate their own- terms on the contracts. The Montana court discussed two tests for determining whether there was an employer-employee relationship. The statutory test looked at the control an employer has over an individual, whether the service is outside the usual course of the business,' and whether the individual is customarily engaged in an independently established trade or business. Under the common law test the court looked at the control the employer had over the individual. Applying these tests, the court determined that the dealers were employees of the distributor based on the amount of control the distributors had over the dealers. The factors that the court considered relevant were: “Kirby trained the dealers in the method of marketing Kirby products by giving them initial demonstrations of the products, providing them with a sales guide booklet, and conducting sales clinics. Kirby regulated the price dealers charged for the products by suggesting retail prices which the dealers generally adhered to. Kirby customarily received the dealers’ sales receipts and paid the dealers their commissions. Finally, and possibly most importantly, dealers had to be authorized through a wholesale outlet like Kirby to sell Kirby products and Kirby could terminate the contract granting the dealers that authorization without cause on thirty days’ notice.”_Mont._, 614 P.2d at 1044. The same result was reached in Kirkpatrick v. Peet, 247 Or. 204, 428 P.2d 405 (1967). The case involved basically the same facts as the Montana case. The court used a statutory test similar to that in Kirby Co. of Bozeman,_Mont._, 614 P.2d 1040, i.e., control by the employer, whether there was an independently established occupation, and whether the dealers were customarily engaged in the business. The court found that the dealers were employees of the distributor: “The manner in which the dealer’s activities were interwoven with those of the plaintiff makes it evident that there was not the independence of occupation contemplated by the statute. We have already alluded to the direction and control under which the dealers operated — direction and control with respect to price, territory and training. Other aspects of the activities of the dealers and plaintiff were interrelated. As we previously mentioned, plaintiffs office was the headquarters and clearing house for the dealers, plaintiff did the bookkeeping and accounting for the dealers, the dealers assigned their conditional sales contracts to plaintiff, the advertising program by which appointments could be made for the dealers was carried on by plaintiff, and there were other interconnected activities. Considering all of the foregoing factors in relation to the objectives of the Unemployment Insurance Act, we are of the opinion that plaintiff is engaged in employment within the meaning of the Act.” 247 Or. at 214-15. Bevan v. California Emp. Stab. Com., 139 Cal. App. 2d 668, 294 P.2d 524 (1956), involved basically the same facts as the Montana and Oregon cases. The court, however, considered only the common law definition of employer-employee and independent contractor. The court found there was sufficient control present to make the vacuum cleaner dealers employees. Similar results under similar facts were also reached in Hart v. Johnson, 68 Ill. App. 3d 968, 386 N.E.2d 623 (1979), and Beaman v. Superior Products, Inc., 89 Ariz. 119, 358 P.2d 997 (1961). The only case which has reached a different result is Speaks, Inc. v. Jensen, 309 Minn. 48, 243 N.W.2d 142 (1976). The Kirby vacuum cleaner distributors had been found liable for unemployment compensation under virtually the same circumstances as in the other cases. On appeal, the court, using the common law definition of master-servant, reversed the administrative tribunal. The court said that the degree of control necessary to bring the relationship between the distributor and its dealers within the definition of employment was not present in the record. In Read v. Warkentin, Commissioner, 185 Kan. 286, 341 P.2d 980 (1959), the court considered whether taxicab drivers were employees or independent contractors for purposes of unemployment compensation assessments. We said: “In giving consideration to appellee’s position respecting his status, and that of his drivers, under the contract, the evidence and the administrative findings, we can turn to our own decisions for general rules defining masters and servants and independent contractors. See Houdek v. Gloyd, 152 Kan. 789, 107 P.2d 751, where it is held: “ ‘A master is a principal who employs another to perform service for him, and who controls or has the right to control the physical conduct of the other in the performance of such service, and the servant is the person so employed. “ ‘An independent contractor is generally one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work.’ (Syl. ¶¶ 2, 3.) “For more recent decisions approving the foregoing rules, see Sims v. Dietrich, 155 Kan. 310, 124 P.2d 507; Bush v. Wilson & Co., 157 Kan. 82, 86, 87, 138 P.2d 457. “With respect to the ‘right to control,’ mentioned in the first of the foregoing rules, it has frequently been pointed out that this means the right to control, not the actual interference or exercise of control, by an employer. (Bush v. Wilson & Co., supra, page 86; Sims v. Dietrich, supra, page 312; Schroeder v. American Nat’l Bank, 154 Kan. 721, 121 P.2d 186; Mendel v. Fort Scott Hydraulic Cement Co., 147 Kan. 719, 78 P.2d 868.)” 185 Kan. at 292-93. The Read court determined that the drivers were employees because the employer not only had the right and authority to direct and control the manner in which his drivers carried on their operations, but to a certain extent actually exercised these rights. In the present case, the district judge found that Wallis “had no right to direct and control the method and manner of the dealers in selling vacuum sweepers.” Wallis does not provide offices, desk space, or business phones, nor pay dealers’ expenses and does not withhold social security or income tax from them. Wallis does maintain direction and control with respect to the training of dealers as well as price of products. Dealers must be authorized through Wallis who retains the right to terminate the contract without cause on 30 days notice. While the dealers may sell the products in whatever method they feel best accomplishes their goals, Wallis can terminate the contract with the dealer “in those instances wherein he finds the dealer to be not representative of the product or the product line.” Other interconnected factors are also present. Wallis, his son, and other experienced dealers accompany newly associated dealers during the early course of their sales experience. Wallis has a profit-sharing plan provided by the distributor for dealers who help train other dealers. Dealers are not responsible for repossession of the vacuum cleaner when installment contracts fall through. Dealers do not service the equipment, but a service technician in Wallis’ office does. The distributor’s business is limited to selling and servicing. In Read, the court said the right to control, not the actual exercise of the right, determines whether there is control. Here the distributor has the right to control the dealers, but has not exercised that right. Wallis and the salesmen are both engaged in a sefvice within the usual course of the business for which the service is performed, the sale of Kirby vacuum cleaners. In addition, all the services of selling are not performed outside Wallis’ place of business. Therefore, their relationship under the common law and the statutes is that of employer-employee and not that of independent contractor. Here the district court incorrectly determined the question of law based on the adopted findings of fact. Both the hearing officer and the Secretary had correctly determined from the facts the salesmen were employees of Wallis. The trial court is reversed and its order abating the taxes collected is set aside.	[ -112, -22, -52, 60, 30, 96, 50, -70, 75, -79, 39, 87, -23, -54, 21, 123, -13, 93, -44, 123, -25, -73, 19, -29, -42, 91, -7, -51, -79, 75, -76, -44, 76, 52, 10, -123, 6, 64, 69, 28, -116, 0, 43, 81, 113, -128, 60, 106, 50, 27, 81, 20, -77, 42, 20, -57, -52, 62, 107, 41, 81, -13, -22, -43, 124, 28, 33, 4, -105, -121, -40, 55, -102, 56, -64, -88, 83, -74, -62, -12, 3, -55, 8, 102, 98, 34, -80, -81, 108, -104, -114, -45, 31, -27, -79, 88, 35, 11, -74, -99, 88, 18, -62, -8, -22, 69, 31, 125, -118, -113, -94, -127, 13, 37, -114, -101, -17, -89, 17, 116, -119, -20, 95, 6, 18, 31, -34, -72 ]
The opinion of the court was delivered by Herd, J.: Donald R. Moses and Brian K. Littlejohn were convicted on July 30, 1981, and July 23, 1981, respectively, both of attempted aggravated robbery and felony murder. Appeals were taken in their cases and the convictions were affirmed in unpublished opinions. State v. Moses, No. 53,711, filed July 16, 1982; and State v. Littlejohn, No. 54,045, filed December 3, 1982. Another codefendant, Clyde Thomas, was also convicted of the same charges. Angela Littlejohn, a fourth codefendant, was acquitted. Both Moses and Littlejohn filed motions for new trial. The motions were denied. This case is the consolidated appeals from the denial of the motions for new trial. The motions for new trial based on newly discovered evidence were accompanied by affidavits from Moses, Littlejohn and Clyde Thomas. The affidavits of Moses and Littlejohn were substantially the same. Both swore that on March -24, 1981, they were at a Wichita residence with Angela Littlejohn and Clyde Thomas. The four allegedly decided to go to the Sunflower Pawn Shop where Brian and Angela could look at engagement rings. At the pawn shop, while Brian and Angela looked at the rings, Clyde Thomas argued with the pawnbroker, Harold Dennis. The argument became heated and Dennis pushed Thomas. Brian Littlejohn then noticed Harold Dennis had a gun. He yelled a warning to Clyde Thomas, a gun fired, and Harold Dennis fell to the floor. Brian Littlejohn took Harold Dennis’ gun and all four individuals ran to the truck they had driven to the pawn shop. They drove back to the residence where they had met before going to the shop, and were arrested there a short time later. The affidavit of Clyde Thomas states when he met with Brian and Angela Littlejohn at the Wichita residence on Marqh 24, 1981, they were considering the purchase of an engagement ring. Thomas states he told Brian Littlejohn that he knew where Brian could get ;a good deal on a ring. Thomas explained that Harold Dennis at the Sunflower Pawn Shop fenced stolen property and Thomas had on occasion sold stolen property to him. Brian, Angela, Thomas and Moses .then proceeded to the pawn shop. While Brian and Angela looked at the rings, Thomas stated he and Harold Dennis had a private .discussion concerning further transactions in stolen goods and some money Thomas owed Dennis from an unpaid loan. The two began to argue about the debt, and Dennis became hostile. Dennis then ran to the counter. Brian Littlejohn saw that Dennis had obtained a gun and yelled a warning to Thomas. Thomas was carrying a gun in his pocket, and fired at Dennis in self-defense. Thomas then ran with the others to their truck and was arrested a short time later. The information alleged in the affidavits of Moses, Littlejohn and Thomas was never offered at trial. The State’s case presented at the trials of the appellants as to the crime itself was not disputed by any other information on the part of the appellants. The facts in evidence at trial were that Harold Dennis was an employee at die Sunflower Pawn Shop in Wichita, Kansas. At 5:00 p.m. on March 24, 1981, Dennis entered the Twenty-first Street Pawn Shop, a few doors away from the Sunflower Pawn Shop. He was pale, excited and there was blood coming from his mouth. Dennis informed two employees of the Twenty-first Street Pawn Shop he had been shot in the back, but that nothing had been taken from the shop. Dennis described the people who entered his shop as three black males and one black female, one of whom shot him. He further stated he saw them leave in a red Chevy pickup truck. Dennis also indicated he had been shot by a .22 caliber weapon. Dennis was then taken to St. Francis Hospital where he died shortly thereafter. Daryl Pauley, an employee of Monroe’s Liquor Store located at 21st Street and Park Place, near the Sunflower Pawn Shop, testified he saw three black males and one black female walk past his store in the direction of Dennis’ pawn shop. A few minutes later, Pauley saw the same four individuals run past his liquor store and get into an old red and white pickup truck. Pauley then saw Dennis run out of the pawn shop. Dennis was bleeding and yelling at the individuals in the pickup truck. Pauley noted the license on the truck and subsequently reported the information to the police. The license tag number and description of the truck led police to the home of Sidney and Lavada Grant, 1851 N. Spruce, Wichita. Mrs. Grant told the police that Brian Littlejohn had borrowed her red and white pickup truck earlier that afternoon and returned the truck a few minutes after 5:00 p.m. Mrs. Grant further informed the police that Brian, whom she had seen holding a large handgun, was in the basement with Clyde Thomas arid Donald Moses. After repeated requests by the police officers the three men emerged from the basement and were arrested. In a subsequent search of the Grant residence one revolver was found hidden in the basement and a .22 caliber weapon was found hidden in a chair in the upstairs bedroom of the house. The morning after the crime occurred a detective spoke with Brian Littlejohn concerning a previous robbery at a Radio Shack in which Littlejohn was a suspect. In discussing the Radio Shack robbery with the detective Littlejohn also gave information regarding the Sunflower Pawn Shop incident. Littlejohn stated Clyde Thomas had been involved with him in the Radio Shack robbery as well as the one at the Sunflower Pawn Shop. He further stated Angela Littlejohn and Donald Moses were also involved in the Sunflower Pawn Shop robbery and homicide. Littlejohn told the detectives the Sunflower Pawn Shop robbery crime was planned by Clyde Thomas. He stated Thomas had cased the pawn shop and had observed a pair of handcuffs while in the shop. Thomas planned to use the handcuffs to detain the attendant, allowing them more time to get away. Littlejohn stated Clyde Thomas recruited himself, Angela Littlejohn, and Donald Moses to assist him in the commission of the crime. His job in the Sunflower Pawn Shop robbery was to hold the attendant at bay with a revolver, allowing the other three individuals to pick up merchandise. He also said the attendant attempted to take his gun away from him. Littlejohn stated he did not fire the gun that killed Dennis, but refused to tell the detective who had fired it. On May 8, 1981, Littlejohn was charged with first-degree murder pursuant to K.S.A. 21-3401 and attempted aggravated robbery pursuant to K.S.A. 21-3427; 21-3301. Prior to trial a Jackson v. Denno hearing was held to determine the admissibility of Littlejohn’s statements to the detective. The trial court found the appellant’s statements were voluntarily, knowingly, and intelligently given and overruled the motion to suppress. At trial Littlejohn did not testify, nor did he call Thomas or Moses to the stand as defense witnesses. Donald Moses was arrested after emerging from the basement at the Grant home and was transported to the Wichita Police Department for questioning. Two detectives were assigned to interview Moses. Moses indicated he wished to make a statement to the detectives concerning the incident at the pawn shop. Donald Moses then told the detectives he and three other friends had gone to the Sunflower Pawn Shop at about 3:30 the day of the robbery and murder. They then left and rode around for awhile. At five o’clock they went back to the pawn shop. He said Brian Littlejohn and Clyde Thomas entered the pawn shop ahead of Angela and him. Brian and Clyde were to handcuff the clerk while he and Angela were to take money and jewelry. He observed Brian put a large caliber gun to the clerk’s head. A tussle then developed between Brian and the clerk and he heard a gunshot. They all ran from the shop, got into the truck, and drove to the Grant residence. Moses’ statement was introduced at his trial over objection. The district court’s ruling admitting Moses’ statement was affirmed on appeal. Moses did not testify at his trial, nor did he call Brian Littlejohn or Clyde Thomas as defense witnesses. Clyde Thomas was the last of the four codefendants to go to trial. He had not previously given the police a statement and he did not testify at his own trial. He did not present Littlejohn or Moses as defense witnesses. Angela Littlejohn, the first of the four defendants to be tried, did not provide any pretrial statements to the police. She testified in her own trial, and upon being acquitted, testified in the trials of Brian Littlejohn and Donald Moses. In each of the trials she testified Brian was going to buy a ring at the pawn shop and asked her to take him there. She testified she borrowed a pickup truck in order to give him a ride. She further testified when they went to the pawn shop some of her companions engaged in a racial argument with the white proprietor, Harold Dennis. They were ordered to leave. She testified she and Moses had left the store when Thomas and Harold Dennis became involved in a scuffle and she heard a shot. She ran to the pickup truck where the others joined her, and they quickly returned to the Grant home. As she was going into the house, Thomas threw her a gun which she hid under a cushion on a sofa in a bedroom upstairs. She further testified they had not been in the pawn shop before the shooting. Two witnesses, who were not available for Angela Littlejohn’s trial, each testified in the codefendants’ trials that they had observed Angela Littlejohn and three black males at the pawn shop an hour before the shooting. One of these witnesses identified Clyde Thomas as one of the black males. The other witness identified Brian Littlejohn as another of the black males. Neither of these two witnesses were able to identify Moses as the third black male. The affidavit of Moses claims he gave the false confession due to promises of lenient treatment by the prosecution. Littlejohn claims the statement he gave was false and was given in return for assurances that he would be released on the charges. The district court denied both Moses’ and Littlejohn’s motions for new trial. The court ruled the information in the affidavits would not have changed the verdict in a new trial. Moses and Littlejohn appeal this ruling. Both appellants argue the trial court erred in denying their motions for new trial. The rules regarding motions for new trial for newly discovered evidence, which are governed by K.S.A. 22-3501, were recently stated in State v. Bishop, 223 Kan. 539, 543, 574 P.2d 1386 (1978): “ ‘The rules for granting of a new trial for newly discovered evidence have often been stated. The granting of a new trial for newly discovered evidence is in the trial court’s discretion. [Citation omitted.] A new trial should not be granted on the ground of newly discovered evidence unless the evidence is of such materiality that it would be likely to produce a different result upon re-trial. [Citation omitted.] The credibility of the evidence offered in support of the motion is for the trial court’s consideration. [Citation omitted.] The burden of proof is on defendant to show the alleged newly discovered evidence could not with reasonable diligence have been produced at trial. [Citation omitted.] The appellate review of an order denying a new trial is limited to whether the trial court abused its discretion.’ ” Quoting State v. Johnson, 222 Kan. 465, 471, 565 P.2d 993 (1977). See also State v. Myrick & Nelms, 228 Kan. 406, 616 P.2d 1066 (1980). Based upon these rules of law, the trial court in this case found Moses’ own affidavit was not newly discovered evidence in his own hearing on the motions since he knew the evidence at the time of his trial and he could have testified as to the evidence at his own trial but chose not to. For the same reason, the trial court held Littlejohn’s affidavit was not newly discovered evidence in his own hearing. However, the court ruled Littlejohn’s and Thomas’ affidavits were newly discovered evidence in Moses’ hearing and Moses’ and Thomas’ affidavits were newly discovered evidence in Littlejohn’s hearing. The basis for this ruling was that Littlejohn and Thomas were not available to testify at Moses’ hearing because they would have taken the Fifth Amendment and refused to testify. The same is true for Moses and Thomas at Littlejohn’s trial. Appellee argues this is not newly discovered evidence since the contents of the affidavits and the identity of the witnesses were within the knowledge of each defendant at the time of trial. Appellee contends the appellants’ argument that the affidavits are newly discovered evidence since the testimony was not available to each defendant due to the other defendant’s Fifth Amendment privileges is erroneous. Appellee argues appellants failed to demonstrate reasonable diligence to produce this evidence at trial. Appellee contends the appellants should have been required to subpoena the other defendants and require them to claim their Fifth Amendment privilege on the record; or request a continuance and force the codefendants to testify after their own trials, when their Fifth Amendment claim would no longer be valid. We agree. The trial court, however, rejected this argument, but found for other reasons that the motions for new trial should be denied. This court has often held that if the judgment of the trial court is correct, it is to be upheld even though the court may have relied upon a wrong ground or assigned an erroneous reason for its decision. Therefore, despite the trial court’s erroneous ruling that the evidence was newly discovered, we uphold its denial of the motions for new trial. The judgment of the trial court is affirmed.	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The opinion of the court was delivered by Schroeder, C.J.; This is an appeal in a criminal action from a dismissal of charges against Pamela Berg (defendant- appellee). The appeal is brought by the associate counsel for the prosecution who was hired pursuant to K.S.A. 19-717 by the complaining witness, Jerry L. Berg. The State, through the district attorney, filed a brief amicus curiae. The facts disclose that on February 23, 1982, Pamela Berg went to the home of her ex-husband, Jerry L. Berg, to pick up her children for visitation. There was apparently some disagreement as to whether the children were to leave with their mother. This resulted in a violent altercation between Pamela and Jerry. Subsequently, both parties contacted law enforcement officers to report that he or she had been the victim of a battery by the other. On June 3, 1983, the separate cases were filed. The case against Jerry L. Berg was filed by a deputy district attorney on behalf of the State. The case against Pamela Berg was filed by Jerry Berg, through his counsel, pursuant to K.S.A. 22-2301(1). Mr. Berg had hired private counsel to assist in prosecuting the case as is allowed under K.S.A. 19-717 which provides: “That the prosecuting witness in any criminal action or proceeding may, at his own expense, employ an attorney or attorneys to assist the county attorney to perform his duties in any criminal action or proceeding under any of the laws of the state of Kansas, and such attorney or attorneys shall be recognized by the county attorney and court as associate counsel in such action or proceeding, and no prosecution shall be dismissed over the objection of such associate counsel until the reason of the county attorney for such dismissal, together with the objections thereto of such associate counsel, shall have been filed in writing, argued by counsel, and fully considered by the court.” (Emphasis added.) On September 2, 1983, the district attorney’s office, after investigating and evaluating both allegations, moved to dismiss the complaint filed against Pamela Berg by Jerry Berg. The reasons for the dismissal were stated in the State’s motion for dismissal as follows: “3. That in the exercise of good faith and sound discretion, the State’s attorney believes there is insufficient credible evidence to warrant the continued prosecution of the instant matter and therefore, continued prosecution of this matter would violate the ethical standards governing prosecutors; “4. That the continued prosecution of this case would create an ethical conflict of interest for the District Attorney, his deputy and assistants in light of the continuing prosecution of [the case against Jerry Berg] and would constitute a usurpation of prosecutorial discretion.” Both the district attorney and Pamela Berg’s counsel filed memoranda in support of the motion to dismiss. Jerry Berg’s retained counsel filed a memorandum opposing the motion. The hearing was conducted on October 12, 1983. After hearing extensive arguments from counsel, the court took the matter under advisement and issued a Memorandum Opinion on November 10, 1983. In this opinion, the court began by recognizing Mr. Berg’s retained counsel as an assistant to the prosecutor under K.S.A. 19-717. The court then noted: “Associate counsel strenuously objects to the dismissal of this case and in compliance with K.S.A. 19-717, the district attorney has filed his reasons for such dismissal in writing and associate counsel has filed his objections to dismissal in writing and all such reasons and objections have been fully considered by the Court.” The court went on to rule that the reasons for dismissal given by the district attorney were sufficient, and, as the district attorney is in charge of any criminal action filed, he may dismiss such a charge for cause. The court then ordered the case dismissed. Jerry Rerg, through his retained counsel acting as “associate counsel for the prosecution,” appealed the dismissal of the charges against Pamela Rerg. The parties were ordered to show cause why this court had jurisdiction to hear the appeal in light of our decision in State ex rel. Rome v. Fountain, 234 Kan. 943, 678 P.2d 146 (1984). The threshold issue in this case, then, is one of jurisdiction. Stated another way: When a district court dismisses a criminal complaint, does the complaining witness’s private counsel, retained pursuant to K.S.A. 19-717 as assistant to the prosecutor, have the right to take an appeal from an order of dismissal? If we determine that there is standing for appeal, the issue then becomes whether the district court’s order of dismissal complied with the requirements of K.S.A. 19-717. In February 1984, while this appeal was pending, we decided the Rome case which involved a jurisdictional issue very similar to the one now before us. In determining whether Rome is dispositive of the present case, a detailed review of Rome is warranted. Richard Rome, a practicing attorney, filed criminal charges of peijury against the sheriff and county attorney of Reno County in connection with their testimony at a hearing which resulted in the removal of Rome from his position as an Associate District Judge. The complaint was filed by Rome, and the trial court served notice to appear on each defendant. The defendants moved to quash the complaint and Rome opposed the motion. After a hearing, the trial court entered an order quashing the complaints. Although Rome did not attend the hearing, he presented his arguments in a written brief. Rome appealed the order quashing the complaint. The issue before this court was whether a complaining witness had the right to take an appeal from an order entered by a district court dismissing a criminal complaint. In the course of the per curiam opinion, we noted there is no specific statute in Kansas which allows the complaining witness to appeal from the dismissal of a criminal case. Since the right to appeal is statutory, the absence of a statute indicated there was no right to appeal. We then reviewed Kansas court decisions throughout our judicial history demonstrating the fact that “a private individual has no right to prosecute another for crime and no right to control any criminal prosecution when one is instituted. . . . [T]he philosophy of this state has always been that a criminal prosecution is a state affair and the control of it is in the public prosecutor.” 234 Kan. at 945. As was noted in the opinion, there is an abundance of authority in Kansas for the rule that the public prosecutor is to control criminal cases. State ex. rel. Miller v. Richardson, 229 Kan. 234, 623 P.2d 1317 (1981); State v. Turner, 223 Kan. 707, 709, 576 P.2d 644 (1978); State v. Pruett, 213 Kan. 41, 515 P.2d 1051 (1973); State v. Kilpatrick, 201 Kan. 6, 17, 439 P.2d 99 (1968); State, ex rel., v. Court of Coffeyville, 123 Kan. 774, 256 Pac. 804 (1927); Foley v. Ham, 102 Kan. 66, 169 Pac. 183 (1917); In re Broadhead, 74 Kan. 401, 86 Pac. 458 (1906); State v. Brown, 63 Kan. 262, 65 Pac. 213 (1901); State v. Wells, 54 Kan. 161, 165, 37 Pac. 1005 (1894); State v. Wilson, 24 Kan. 189 (1880); Jackson v. State, 4 Kan. 150 (1867). This philosophy is incorporated into the Kansas Code of Criminal Procedure. See K.S.A. 22-2104 (criminal prosecutions to be brought in the name of the State of Kansas); 22-2202(19) (definition of “prosecuting attorney” as one authorized by law to appear on behalf of the State); 22-2301 (copy of complaint must be supplied to county attorney); 22-3201(6) (prosecuting attorney to endorse names of all witnesses on the complaint, information or indictment); 22-3602(b) (when the prosecution may appeal from order of the district court); 19-702 (county attorney had duty to appear and prosecute on behalf of the State); 19-711 (in absence of county attorney, the court may appoint an acting county attorney); 19-715 (judges may appoint temporary county attorney for their district); 19-717 (prosecuting witness may employ, at his own expense, an attorney to assist the county attorney.) After quoting at length from the American Bar Association Standards relating to the Prosecution Function, wherein it is stated the prosecution function should be performed by a public prosecutor and not a private party, we concluded, “It is thus clear that the national tradition, as well as the Kansas tradition, requires that the person representing the state in a criminal pro ceeding must be a law-trained, independent public prosecutor rather than a vengeful persecutor.” Rome, 234 Kan. at 951. Thus, the complaining witness had no standing to take the appeal, and we dismissed the case for lack of jurisdiction. Efforts by Mr. Berg’s attorney to distinguish Rome are without merit. The distinction between a motion to dismiss and a motion to quash is one without a difference. Motions to quash as known in common law were abolished by K.S.A. 22-3208(1); the remedy formerly requested by a motion to quash must now be raised by a motion to dismiss. The court’s use of the word “quash” in Rome was a matter of semantics. Also, there is no basis for the contention that there was no probable cause finding in Rome. After the complaint was filed in Rome, the court ordered that notice to appear be issued to each defendant. Such notice, by definition, is a “summons.” See K.S.A. 22-2202(16). Before issuing a summons, the court must make a preliminary finding of probable cause. See K.S.A. 1983 Supp. 22-2302(1). Another distinction asserted between Rome and the case at bar is the fact that a 19-717 assistant to the prosecutor was employed by the complaining witness in this case. Even so, we have concluded the rationale in Rome is equally applicable in this case and the appeal must be dismissed for lack of jurisdiction. In arguing against this result, Mr. Berg’s attorney contends that by virtue of 19-717, he has assumed the role of a prosecutor. He points to language in Rome which refers to the 19-717 counsel as a “special prosecutor.” This term is used in K.S.A. 22-2202(19), which states: “ ‘Prosecuting attorney’ means any attorney who is authorized by law to appear for and on behalf of the state of Kansas in a criminal case, and includes the attorney general, an assistant attorney general, the county or district attorney, an assistant county or district attorney, and any special prosecutor whose appearance is approved by the court.” (Emphasis added.) It is argued that since Mr. Berg’s attorney is a “special prosecutor” he has become a “prosecuting attorney” and thus may appeal the dismissal pursuant to K.S.A. 22-3602(b)(l), which provides that appeals from an order of dismissal may be taken by the prosecution. In our opinion an attorney hired by the complaining witness to assist the prosecutor pursuant to 19-717 is not a “special prose cutor” within the meaning of 22-2202(19). Although we find no Kansas cases which define “special prosecutor,” we are of the opinion that, as used in the statute, it refers to one who is temporarily appointed by the court to replace the absent county attorney pursuant to K.S.A. 19-711 or 19-715. The 19-717 attorney does not take over the role of the prosecutor. The controlling word in 19-717 is “assist.” The attorney is to assist the prosecutor who will maintain ultimate control of the case. In State v. Wells, 54 Kan. 161, the Supreme Court held that although it was not error for the lower court to permit private counsel to assist the county attorney, the entire prosecution was to remain under the supervision and control of the county attorney. K.S.A. 19-717 was enacted in 1901, subsequent to the Wells case. Since the statute specifies that the attorney employed by the complaining witness “assists” the prosecutor, the statute codifies the holding in Wells and was not meant to override that case. More recently, in State v. Sandstrom, 225 Kan. 717, 595 P.2d 324, cert. denied 444 U.S. 942 (1979), this court held that it was not error to hire an assistant to the prosecutor under 19-717 since “[t]he district attorney participated fully in the prosecution and there is nothing to show he was not in full control of the case.” 225 Kan. at 723. See also State v. Atwood, 187 Kan. 548, 358 P.2d 726 (1961). In discussing 19-717 in the Rome opinion, this court stated: “This statute does not give to the associate counsel the right to take an appeal to an appellate court from an order dismissing the case. . . . “. . . Although the complaining witness does have the right to employ private counsel to assist the county attorney, the ultimate prosecution of the case remains at all times in the hands of the public prosecutor.” 234 Kan. at 949. The drastic difference in roles between the “public” prosecutor and the “private” prosecutor was observed in Note, Private Prosecution— The Entrenched Anomaly, 50 N.C.L. Rev. 1171, 1173 (1972): “From his sole function as procured advocate for a prosecution, the duties of the public prosecutor have taken new dimensions. He is not an advocate in the ordinary sense of the word, but is the people’s representative, and his primary duty is not to convict but to see that justice is done. The prosecutor is an officer of the state who should have no private .interest in the prosecution and who is charged with seeing that the criminal laws of the state are honestly and impartially administered, unprejudiced by any motives of private gain. It is his duty to show the whole transaction as it was, regardless of whether it tends to establish a defendant’s guilt or innocence. “Conversely, a privately retained attorney owes his client individual allegiance, and once employed he must not act for an interest even slightly adverse to that of his client in the same general matter. Therefore, in view of the ethical and judicial restrictions imposed on the public prosecutor and the generally recognized loyalties of the private advocate, ‘private prosecutor’ is a contradiction in terms. The high standard of impartiality demanded .of a prosecutor realistically cannot be expected of the private advocate.” It is firmly established in this state that the relationship between a lawyer and his client is one of agency. Bucher & Willis Consulting Engineers v. Smith, 7 Kan. App. 2d 467, 643 P.2d 1156 (1982). An attorney who is hired by a complaining witness must act in the interest of his client which may not be in the interest of the general public. Accordingly, we conclude that the Rome case is dispositive of the case at bar. The addition of an attorney, hired by the complaining witness under 19-717, does not distinguish this case from the rationale of Rome. The person representing the State in a criminal proceeding must be a “law-trained, independent public prosecutor rather than a vengeful persecutor.” Rome, 234 Kan. at 951. (Emphasis added.) There is no merit to the argument made by associate counsel that without the right to appeal the dismissal, K.S.A. 19-717 is rendered “worthless” because there is no remedy available when the court does not follow the statutory procedures for dismissal. Traditionally, the prosecutor has the discretionary power to dismiss a criminal case without interference from the judiciary. State v. Turner, 223 Kan. at 707, 709, 576 P.2d 644 (1978). The complaining witness has no right to challenge a decision by the prosecutor to dismiss. Rome, 234 Kan. at 945. K.S.A. 19-717 gives the complaining witness a way to have the judiciary check the district attorney’s decision to dismiss. Thus, by hiring his own attorney, the complaining witness is given a voice in the decision to dismiss — a right he would not have in the absence of the statute. The fact that there is no right to appeal the trial court’s decision to dismiss does not render the statute meaningless. There have always been limitations on the State’s right to appeal from adverse rulings. “[T]he right to appeal is statutory, and, in the absence of a statute which authorizes an appeal, an appeal is not available to the losing party in the district court.” 234 Kan. at 945. We must now consider the request of the district attorney, who filed a brief amicus curiae, for an allowance of reasonable attorney fees and expenses incurred on the appeal. In Rome, we held that attorney fees should be awarded to the appellees because the appeal taken was frivolous and for the purpose of harassment. Supreme Court Rule 7.07(b) (232 Kan. cxviii) provides: “(b) FRIVOLOUS APPEALS. If the court finds that an appeal has been taken frivolously, or only for the purposes of harassment or delay, it may assess against an appellant or his counsel, or both, the cost of reproduction of the appellee’s brief and a reasonable attorney’s fee for the appellee’s counsel. The mandate shall then include a statement of any such assessment, and execution may issue thereon as for any other judgment, or in an original case the clerk of the appellate courts may cause an execution to issue.” (Emphasis added.) In this case the district attorney was not an “appellee,” he merely filed an amicus brief. While the rule (7.07[b]) speaks to fees being awarded to an “appellee,” we think the distinction in the situation here involved is irrelevant. The district attorney was obligated to submit a brief in support of the trial court’s dismissal. The associate counsel was claiming to be the prosecutor acting on behalf of the State. Therefore, the district attorney — the actual representative of the State — had to be heard. The dismissal of this case by the trial judge and the appeal taken by counsel for Mr. Berg were prior to the decision in State ex rel. Rome v. Fountain, 234 Kan. 943. Therefore, counsel did not have the benefit of the Supreme Court’s decision in Rome. Had this appeal been taken after the Rome decision it would have been frivolous, but under the circumstances we cannot say the appeal was frivolous when it was taken. The request for reasonable attorney fees and expenses of the district attorney is denied. The appeal is dismissed.	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Whereas, William Clayton Wiswell was admitted by this Court on the 13th day of September, 1974, to the practice of law in the ■ State of Kansas; and Whereas, on the 16th day of April, 1982, he was convicted in the District Court of Johnson County, Kansas, of one count of aiding and abetting arson (K.S.A. 21-3718 and 21-3205), one count of attempted felony theft (K.S.A. 21-3701 and 21-3301), one count of conspiracy to commit arson (K.S.A. 21-3718 and 21-3302), and one count of conspiracy to commit felony theft (K.S.A. 21-3701[b] and 21-3302); and Whereas, on the 23rd day of August, 1982, respondent was temporarily suspended by this Court from the practice of law in the State of Kansas pending his appeal from the foregoing convictions; and Whereas, the Kansas Court of Appeals affirmed the convictions in an unpublished opinion filed October 6, 1983, in case number 54,873; and Whereas, a petition for review of the Court of Appeals decision was denied by this court on the 30th day of January, 1984, (234 Kan. 1078); and Whereas, a petition for a writ of certiorari to the United States Supreme Court was denied October 1, 1984; and Whereas, William Clayton Wiswell on the 17th day of October, 1984, voluntarily surrendered, pursuant to Supreme Court Rule 217 (232 Kan. clxx), his license to practice law in the State of Kansas, Now, Therefore, It is Ordered that William Clayton Wiswell, a/k/a William C. Wiswell, be and he is hereby disbarred from the practice of law in the State of Kansas; the privilege of William Clayton Wiswell to practice law in the State of Kansas is hereby revoked and the Clerk of the Appellate Courts of Kansas is directed to strike the name of William Clayton Wiswell from the roll of attorneys in the State of Kansas. By Order of The Supreme Court of Kansas this 16 day of November, 1984. It is Further Ordered that the certificate of William Clayton Wiswell to practice law in the State of Kansas is hereby cancelled and declared null and void, and the costs of this action are assessed to the respondent. It is Further Ordered that this order shall be published in the official Kansas Reports and that the Clerk of the Appellate Courts shall comply with the requirements of Supreme Court Rule 217.	[ -80, -23, -40, 60, 14, -32, 58, 28, 90, -77, -11, 83, -23, -102, 7, 121, 83, 41, 16, 121, -59, -74, 87, -63, 34, -5, -55, -35, -69, -33, -11, -9, 72, -80, 74, 85, 6, -56, -127, 28, -50, 5, -87, -16, -40, 3, 52, 43, -74, 15, 81, 62, -77, 106, 85, -64, -24, 108, -53, 45, 73, -111, -103, 87, 127, 17, -109, 0, -100, -121, -36, 127, -100, 21, 0, -8, -13, 2, -126, -12, 103, -21, 9, 102, 98, 16, 117, -83, -92, -120, 46, 54, -99, -90, -111, 80, 65, -120, -98, -33, 117, -74, 47, 116, -17, 6, 29, 124, 8, -53, -44, -105, -51, 113, -118, 27, -2, -92, 16, 112, -121, -28, 78, 67, 49, 26, -114, -11 ]
The opinion of the court was delivered by McFarland, J.: This is an appeal from a jury verdict awarding plaintiffs the aggregate sum of $350,000 predicated upon the tort of outrage. Plaintiffs in this action are husband and wife. Rick Neufeldt is the owner of a small company known as J & R Earthmoving, operating out of Inman. Lori Neufeldt does the bookkeeping for her husband’s company. Defendant Foy Construction Co., Inc., was the prime contractor on the Sylvan Grove sanitary sewer project. The dirt work portion of the Sylvan Grove project was subcontracted to J & R Earthmoving. The same contractual arrangement between the parties existed as to another construction job, known as the Ulysses project. Foy’s superintendent in charge of both projects was Dennis Lyne, and Lyne was Rick Neufeldt’s primary contact with Foy Construction. The relationship between Lyne and Rick Neufeldt was hostile. During the summer of 1982, while work was being performed on the Sylvan Grove subcontract, Choitz Oil Company sold fuel to Neufeldt for use on the project. The check given Choitz by Neufeldt was returned for insufficient funds. Choitz called Dennis Lyne, as agent for the prime contractor, regarding the bad check. Duane Huehl was employed by Neufeldt as a finish blade operator on the Sylvan Grove project. On September 2, 1982, Huehl telephoned Lyne relative to an insufficient fund payroll check given him by Neufeldt. Huehl wanted Lyne’s assistance in collecting the check. Lyne suggested Huehl contact the county attorney’s office. Lyne, as project superintendent for Foy, had an interest in getting the bad check made good by subcontractor Neufeldt as the situation, unremedied, could delay Foy’s receipt of final payment for the project. On September 2, 1982, after receiving the Huehl call, Lyne telephoned Neufeldt’s business number. Lori Neufeldt answered the telephone. Lyne asked to speak to Rick Neufeldt and was advised he was not there. It is agreed that Lyne’s voice and manner were polite during the conversation. The content of Lyne’s message is disputed. Lyne testified he advised her of the Huehl bad check and that the matter would be turned over to the county attorney. Lori Neufeldt testified that Lyne said the sheriff “was coming to get Rick” over the bad check. For purposes of this appeal we will consider the Neufeldt version as true. Lori Neufeldt started driving around looking for her husband. When she found him, Lori Neufeldt was crying and nervous. Rick Neufeldt continued to perform his work, but took back roads to avoid the sheriff. On September 10, 1982, the Huehl debt was paid by a cashier’s check. In the interim, neither of the Neufeldts made any effort to contact the sheriff. Lori Neufeldt had suffered a miscarriage 90 days prior to the September 2, 1982, telephone call, and Lyne was aware of this fact. After the telephone call Lori Neufeldt was nervous and suffered from insomnia. Neither Neufeldt incurred any medical bills as a result of the incident. The Neufeldts brought this action seeking damages occasioned by the Lyne telephone call, predicated upon the tort of outrage. The jury awarded each plaintiff $25,000 actual damages and $150,000 punitive damages for an aggregate award of $350,000. Foy appeals therefrom. Before proceeding to the issues raised by appellant, we shall first consider the Neufeldts’ contentions that the appeal should be dismissed. Following the trial herein, Foy timely filed a motion for a new trial. The motion was heard on March 9, 1984. At the conclusion of the hearing, the trial court announced the motion was denied and directed the Neufeldts’ attorney to prepare a journal entry in accordance therewith. The journal entry was filed on March 22, 1984. On April 12, 1984, Foy filed its notice of appeal. The Neufeldts contend the 30-day period for filing a notice of appeal (K.S.A. 60-2103[a]) commenced to run on March 9, 1984, the day the court ruled from the bench that the new trial motion was denied, rather than on March 22, 1984, the date the journal entry was filed. K.S.A. 60-2103(a) provides, in pertinent part: “When an appeal is permitted by law from a district court to an appellate court, the time within which an appeal may be taken shall be thirty (30) days from the entry of the judgment, as provided by K.S.A. 60-258 .... The running of the time for appeal is terminated by a timely motion made pursuant to any of the rules hereinafter enumerated, and the full time for appeal fixed in this subsection commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: ... or denying a motion for new trial under K.S.A. 60-259.” (Emphasis supplied.) K.S.A. 60-258 provides, inter alia: “No judgment shall be effective unless and until a journal entry or judgment form is signed by the trial judge and filed with the clerk of the court.” (Emphasis supplied.) Ry the clear and unambiguous language of K.S.A. 60-2103(a) and 60-258, the appeal was timely filed. The Neufeldts also seek dismissal of the appeal on the technical ground the notice of request for a transcript was not timely filed (Rule 3.03 [232 Kan. cv]). We have carefully considered all points on which dismissal of the appeal is sought and find them to be without merit. We turn now to the points raised by Foy on appeal. A number of issues go to the sufficiency of the evidence establishing the tort of outrage. In Roberts v. Saylor, 230 Kan. 289, 637 P.2d 1175 (1981), the nature of and requisites for establishing the tort of outrage were discussed in detail. It is worthwhile to quote rather extensively from Roberts, as follows: “[A] cause of action has emerged in Kansas for the intentional infliction of mental distress. No bodily harm to the plaintiff is required to support such an action. One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress. Dawson v. Associates Financial Services Co., 215 Kan. [814, 822, 529 P.2d 104 (1974)]; Dotson v. McLaughlin, 216 Kan. [201, 209, 531 P.2d 1 (1975)]. Proof of four elements is required to establish the cause of action: (1) The conduct of defendant must be intentional or in reckless disregard of plaintiff; (2) the conduct must be extreme and outrageous; (3) there must be a causal connection between defendant’s conduct and plaintiffs mental distress; and (4) plaintiffs mental distress must be extreme and severe. “Liability for extreme emotional distress has two threshold requirements which must be met and which the court must, in the first instance, determine: (1) Whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery; and (2) whether the emotional distress suffered by plaintiff is in such extreme degree the law must intervene because the distress inflicted is so severe that no reasonable person should be expected to endure it. Bradshaw v. Swagerty, 1 Kan. App.2d [213, 216, 563 P.2d 511 (1977)]; Dotson v. McLaughlin, 216 Kan. at 211; Dawson v. Associates Financial Services Co., 215 Kan. at 824; Restatement (Second) of Torts § 46(1), comments h and j (1965). “. . . So what is the test of this necessary extreme and outrageous conduct? In Dotson v. McLaughlin, 216 Kan. at 210, Mr. Justice Prager speaking for the court adopted guidelines from the Restatement of Torts. It was pointed out that recovery must depend on the facts and circumstances of each case but liability may be found only in those cases where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond the bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society. It was further said that liability may be found to exist generally in a case when the recitation of facts to an average citizen would arouse resentment against the actor, and lead that citizen to spontaneously exclaim, ‘Outrageous!’ It should be understood that liability does not arise from mere insults, indignities, threats, annoyances, petty expressions, or other trivialities. Members of the public are necessarily expected and required to be hardened to a certain amount of criticism, rough language and to occasional acts and words that are definitely inconsiderate and unkind. . . . Conduct to be a sufficient basis for an action to recover for emotional distress must be outrageous to the point that it goes beyond the bounds of decency and is utterly intolerable in a civilized society. “The second threshold requirement which must be met and which the court must first determine as present is that the plaintiffs emotional distress is sufficiently severe, genuine and extreme that no reasonable person should be expected to endure it. “The extreme distress required must be reasonable and justified under the circumstances, and there can be no liability where the plaintiff has appeared to suffer exaggerated and unreasonable emotional distress, unless it results from a peculiar susceptibility to such distress of which the actor had knowledge. Dawson v. Associates Financial Services Co., 215 Kan. at 820; Restatement (Second) of Torts § 46(1), comment/. The emotional distress must in fact exist, and it must be severe. Prosser, Law of Torts (4th ed. 1971) at 59. “In the first instance the court must determine if these threshold requirements have been met. If the court determines from the pleadings, stipulations, admissions, and deposition of the plaintiff that reasonable fact finders might differ as to whether defendant’s conduct was sufficiently extreme and outrageous as to subject him to liability for emotional distress, and if the court further determines plaintiff s emotional distress was such that reasonable fact finders might differ as to whether plaintiff s emotional distress was genuine and so severe and extreme as to result in liability, then and only then, it must be left to the jury to determine liability based on the evidence at trial. Dawson v. Associates Financial Services Co., 215 Kan. at 824; Dotson v. McLaughlin, 216 Kan. at 211; Bradshaw v. Swagerty, 1 Kan. App. 2d at 216; Restatement (Second) of Torts § 46(1), comments h and j” 230 Kan. at 292 — 94. The Roberts rationale has been applied in W-V Enterprises, Inc. v. Federal Savings & Loan Ins. Corp., 234 Kan. 354, 673 P.2d 1112 (1983), and Hoard v. Shawnee Mission Medical Center, 233 Kan. 267, 662 P.2d 1214 (1983). Was Dennis Lyne’s conduct sufficiently extreme and outrageous as to subject his employer to liability for emotional distress? Lyne had a legitimate interest in Neufeldt’s making the insufficient fund check good. He was trying to contact Neufeldt about the check and telephoned the man’s business number. Lori Neufeldt answered the telephone and, as the company bookkeeper, presumably had knowledge of or an interest in the company’s bad check. This is considerably different than calling an individual’s residence to hassle a family member over a business problem. Lyne knew Lori Neufeldt had suffered a miscarriage some 90 days previously but this bare fact is not the equivalent of maliciously and intentionally giving a disturbing message to a critically ill or mentally unbalanced person. Lyne was not abusive during the conversation. Lyne falsely advised Lori Neufeldt the legal process concerning the bad check matter had reached the point of arrest when, in fact, Lyne had only suggested the check holder contact the county attorney. Conduct, to be a sufficient basis for an action to recover for emotional distress, must be outrageous to the point that it goes beyond the bounds of decency and is utterly intolerable in a civilized society. Roberts v. Saylor, 230 Kan. at 293. We conclude the evidence herein, when viewed in the light most favorable to the plaintiffs, constitutes an insufficient basis for recovery predicated upon the tort of outrage. We base our decision upon the rationale expressed in Roberts v. Saylor. 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The opinion of the court was delivered by Prager, J.: This is a direct appeal in a criminal action in which the defendant-appellant, Paul Guebara, was convicted of murder in the first degree (K.S.A. 21-3401). It was undisputed that the defendant shot and killed his wife, Genny Guebara. The defendant admitted the homicide in his testimony at the trial. The only issue raised on the appeal is that the trial court erred by failing to instruct the jury on the lesser included offense of voluntary manslaughter as defined in K.S.A. 21-3403. At the trial, the factual circumstances were not greatly in dispute and essentially were as follows: Defendant Paul Guebara and Genny Guebara were common-law husband and wife, having declared themselves married in 1980. There were two children living with the couple: Sylvia Dawn Guebara, the natural child of the defendant, and Candice Ann Virgil, the natural child of Genny. Their marital relationship was characterized by frequent arguments and occasional violence. In February 1983, Genny filed for divorce. About the same time she also filed criminal charges against the defendant alleging misdemeanor battery and misdemeanor theft. On February 15, 1983, the defendant was served with a misdemeanor warrant by Ms. Anna Gallardo, a Finney County deputy sheriff who is related to the Guebara family by marriage. She testified that she had a conversation with defendant at the sheriffs office on the day before the shooting. She first saw him in the morning when he came to inquire where his divorce hearing was going to be held. She showed him a copy of the warrant and told him what the misdemeanor charges were. She told him to come back to the office at 2:30 p.m. to take care of the warrant and appear before the court. He returned and appeared before the magistrate at 2:30 p.m. that afternoon. Following the hearing, she had a conversation with him in the sheriffs conference room. They discussed the divorce, and defendant told her he was very upset that the divorce was going on. He said that it made him very angry. He told her at different points in the conversation that he was going to kill Genny and that, if he did, he was not going to fight it — that he was going to turn himself in to the sheriff. He told her that he did not want to kill Genny but, when she made him angry, he could not hold back. Following the conversation, Ms. Gallardo concluded that he was not serious and was not really going to do anything. She did not report the conversation to anyone. On February 16, 1983, the date of the shooting, Sylvia Dawn Guebara was staying with defendant at defendant’s parents’ house in accordance with an agreed visitation schedule. Genny and two of her friends arrived at the house to pick Sylvia up. Genny and another woman left the pickup truck and approached defendant, who was standing on the porch. At that point, defendant handed Genny the criminal process papers. According to defendant’s testimony, when he handed Genny the papers, she stated that she tried to drop the charges but the assistant county attorney would not let her. The defendant testified that he immediately became angry, pulled out his gun, and started shooting her. According to defendant, he did not think about the act; it was a sudden impulse to shoot without reflection. A prosecution witness testified that Genny attempted to walk past defendant to the house after defendant refused to accept back the process papers. He grabbed her arm and turned her around towards him, displaying a gun. Genny turned her head and defendant fired the gun at her. Genny then stepped back, brought her hands up, and defendant fired the gun again. Then Genny turned and ran or stumbled toward the pickup truck. Defendant followed her into the street firing several additional shots. As Genny was lying in the street, defendant ran toward the house, throwing the gun at the house and immediately ran to the Finney County Law Enforcement Center where he turned himself in to a sheriffs employee. Edwin C. Knight, Jr., a Garden City police officer who investigated the shooting, was advised that defendant Guebara was at the law enforcement center. Defendant had been placed under arrest by the sheriff s department. According to the officer, he advised defendant of his Miranda rights and defendant signed an acknowledgment and a waiver. The officer then took a statement from defendant. Defendant advised him that he had been having problems with his wife, referring to the pending divorce and to the fact that Genny had implicated him in misdemeanor theft and battery charges. Defendant stated that he was depressed and upset. The officer asked defendant if he had shot his wife, and defendant admitted it. Defendant stated to the officer that he had thought about shooting her the day before and that he had thought about shooting her just prior to her arrival at the house. The officer asked defendant whether he intended to shoot her, and defendant replied that he had planned to shoot her. On cross-examination the police officer testified that defendant told him defendant had smoked one and one-half joints of marijuana just before his wife arrived on the scene. Defendant informed him that, when he first pulled the gun out, he did not intend to shoot his wife and did not intend to shoot her with the first shot. The evidence presented by the defense at the trial sought to prove that the defendant was a person who, when put into pressure situations, was likely to respond in a violent, impulsive, quick manner. Defendant was characterized as a person who showed indications of gross thought disorder which might lead to an inability to assess reality accurately and respond to it accordingly. Defendant was described as an action-oriented person who could act in an assaultive manner.. The defense called to the witness stand a staff psychiatrist at Larned State Security Hospital who diagnosed defendant to have an anti-social personality disorder. She testified that, when a person with an anti-social personality disorder uses drags such as marijuana, it is possible for the individual to have altered judgment and maladaptive behavior. The use of marijuana by such a person would have a tendency to worsen the individual’s judgment, and if the individual had an aggressive personality, the use of the drugs would probably make the person more aggressive. Although defendant testified he had smoked marijuana shortly before the shooting, there was no evidence he was under the influence of drugs. Defendant’s father, mother, and a cousin testified that defendant was a quick-tempered person who typically reacted violently when put in pressure situations. His mother testified, in substance, that her son would make threats but never carried out his threats. Simply stated, defendant sought to prove that his actions were the result of an emotional state of mind characterized by anger and resentment which caused defendant to act on impulse without reflection. It was the position of the defense that the actions of the defendant were provoked by his wife’s inability to arrange for the dismissal of the criminal charges which she had initiated against her husband and that his response to the situation was impulsive and not premeditated. Hence, the defense argued, he could only be found guilty of voluntary manslaughter. At the close of the evidence, the defendant’s counsel requested the trial court to instruct the jury on the lesser included offense of voluntary manslaughter as defined by K.S.A. 21-3403. The trial court instructed the jury on murder in the first and second degree but refused to give the requested instruction on voluntary manslaughter. In making its ruling, the trial court reasoned that two elements must exist to prove voluntary manslaughter: First, there must be evidence of an emotional state constituting heat of passion and, second, there must be a sufficient provocation. The trial court concluded that the refusal of a person to dismiss misdemeanor criminal charges arising from a domestic squabble was not a sufficient legal provocation to kill. The case was submitted to the jury and defendant was convicted of murder in the first degree. Defendant then appealed and, as noted above, the sole issue is whether the trial court erred in failing to instruct the jury on the lesser included offense of voluntary manslaughter. The defendant maintains that an instruction on voluntary manslaughter was required under the provisions of K.S.A. 21-3107(3) which provides, in substance, that in cases where the crime charged may include some lesser crime, it is the duty of the trial court to instruct the jury, not only as to the crime charged, but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced. This court has held that the requirement of K.S.A. 21-3107(3) is based upon the right of a defendant to have his theory of the case presented to the jury under appropriate instructions where there is support in the evidence, even though the evidence may be weak, inconclusive, and consists of testimony of the defendant alone. If it tends to show the lesser degree of the crime, that is sufficient to require the court to so instruct. State v. Clark, 214 Kan. 293, 299, 521 P.2d 298, modified 215 Kan. 1, 522 P.2d 411 (1974); State v. Buffington, 66 Kan. 706, 709-10, 72 Pac. 213 (1903). The evidence of a lesser included offense need not be strong or extensive as long as it presents circumstan'ces from which the lesser offense might reasonably be inferred. Furthermore, unsupported testimony alone, if tending to establish such inferior degree, is sufficient to require the court to so instruct. If there is no substantial evidence under which the defendant might reasonably be convicted of the lesser offense, an instruction on the lesser offense is not required. State v. Williams, 235 Kan. 485, 681 P.2d 660 (1984). Likewise, if the defendant’s evidence excludes a theory of guilt on the lesser degree of crime the instruction is not required. State v. McDermott, 202 Kan. 399, 449 P.2d 545, cert. denied 396 U.S. 912 (1969). The basic issue before us is whether there was sufficient evidence presented in the case to support the defendant’s theory that the killing was committed in the heat of passion under such circumstances as to require the requested instruction on voluntary manslaughter. At the outset, it would be helpful to review some of the Kansas cases on the subject and to note the general principles of law which have been applied in resolving the issue presented. These general principles may be summarized as follows: (1) Voluntary manslaughter is the intentional killing in the heat of passion as a result of severe provocation. As a concession to human frailty, a killing, which would otherwise constitute murder, is mitigated to voluntary manslaughter. 2 Wharton’s Criminal Law § 153 (Torcía, 14th ed. 1979). (2) “Heat of passion” means any intense or vehement emotional excitement of the kind prompting violent and aggressive action, such as rage, anger, hatred, furious resentment, fright, or terror. Such emotional state of mind must be of such a degree as would cause an ordinary man to act on impulse without reflection. State v. Jones, 185 Kan. 235, Syl. ¶ 2, 341 P.2d 1042 (1959); State v. McDermott, 202 Kan. 399; State v. Ritchey, 223 Kan. 99, 573 P.2d 973 (1977); State v. Coop, 223 Kan. 302, 573 P.2d 1017 (1978). (3) In order to reduce a homicide from murder to voluntary manslaughter, there must be provocation, and such provocation must be recognized by the law as adequate. A provocation is adequate if it is calculated to deprive a reasonable man of self-control and to cause him to act out of passion rather than reason. 2 Wharton’s Criminal Law § 155. In order for a defendant to be entitled to a reduced charge because he acted in the heat of passion, his emotional state of mind must exist at the time of the act and it must have arisen from circumstances constituting sufficient provocation. State v. McDermott, 202 Kan. at 402; State v. Ritchey, 223 Kan. 99, Syl. ¶ 2; State v. Coop, 223 Kan. 302; State v. Jackson, 226 Kan. 302, 597 P.2d 255 (1979), cert. denied 445 U.S. 952 (1980). (4) The test of the sufficiency of the provocation is objective, not subjective. The provocation, whether it be “sudden quarrel” or some other form of provocation, must be sufficient to cause an ordinary man to lose control of his actions and his reason. State v. Coop, 223 Kan. 302; State v. Ritchey, 223 Kan. 99. In applying the objective standard for measuring the sufficiency of the provocation, the standard precludes consideration of the innate peculiarities of the individual defendant. The fact that his intelligence is not high and his passion is easily aroused will not be considered in this connection. State v. Jackson, 226 Kan. at 307. (5) Mere words or gestures, however insulting, do not constitute adequate provocation, but insulting words when accompanied by other conduct, such as assault, may be considered. 2 Wharton’s Criminal Law § 156. In State v. Buffington, 71 Kan. 804, 81 Pac. 465 (1905), it was held that the trial court properly instructed the jury that no words, however abusive and insulting, will justify an assault or will justify a sufficient provocation to reduce to manslaughter what otherwise would be murder. See also State v. Hardisty, 121 Kan. 576, 249 Pac. 617 (1926). (6) An assault or battery resulting in a reasonable belief that the defendant is in imminent danger of losing his life or suffering great bodily harm may be of sufficient provocation to reduce the killing to voluntary manslaughter. 2 Wharton’s Criminal Law, § 158. (7) If two persons engage in mutual combat, the blows given by each are adequate provocation to the other; thus, if one kills the other, the homicide may be reduced to voluntary manslaughter. 2 Wharton’s Criminal Law § 159. With these basic principles in mind, we now turn to a consideration of the factual circumstances of this case as set forth above in detail. We have concluded that the trial court did not err in refusing to give the defendant’s requested instruction on voluntary manslaughter. We agree with the trial court that, although the requisite emotional state necessary to constitute heat of passion was present, the evidence in the record does not show that the defendant’s emotional state of mind arose from circumstances constituting sufficient provocation. The record is devoid of any evidence that on February 16, 1983, Genny Guebara was quarrelsome or that she committed any aggressive acts or physical threats directed* toward the defendant. The evidence was undisputed that, after defendant handed her the warrant in the criminal proceeding, she simply handed it back to him and turned to leave and that defendant immediately pulled his gun and fired the shots. Genny Guebara made no attempt to strike her husband or to interfere with his movements in any way. In fact, there was no evidence that she ever used abusive or insulting words toward him. Actually, this case is not as difficult as some of the other cases where we have held that the trial court did not err in denying a requested instruction on voluntary manslaughter, where the defendant was charged with murder. We note, for example, State v. McDermott, 202 Kan. 399, where the defendant and his wife had been having marital difficulties. They met at a parking lot and an argument ensued. He tried to force her to get in his automobile and she refused. According to the defendant, she reared back and almost threw him off his feet. He testified that he took her by the shoulder nice and easy and told her to “calm down.” He asked about their youngster, and she said, “That’s nobody’s God damned business.” At that time he fired the gun. It was held that this evidence was insufficient to show that the defendant acted in heat of passion provoked by circumstances constituting legal provocation for his emotional state. In State v. Stafford, 213 Kan. 152, 515 P.2d 769 (1973), modified 213 Kan. 585, 518 P.2d 136 (1974), the defendant was convicted of shooting her husband. She and her husband got into an argument because of his remarks about her son-in-law and a friend. As she was standing in the kitchen preparing to make coffee he struck her behind the left ear, knocking her glasses off. The blow did not bruise or hurt her. She then squirted him in the face with a paralyzer spray from a pressurized can. This dazed him and, as he was trying to rub the spray out of his eyes, she wrapped the cord from the electric tea kettle around his neck and choked him with it. She grabbed him by what little hair he had on his bald head and threw him against the wall. She then threw him down on the floor and got astraddle of him with her knees on his arms. She picked up a hammer and hit him with it three or four times. The husband’s death was caused by strangulation. This court held that, although there was some evidence of prior quarreling or even a blow on occasions, insufficient provocation existed to reduce the charge to voluntary manslaughter. In State v. Coop, 223 Kan. at 304, both the defendant and his deceased wife were alcoholics and were extremely intoxicated at the time of the homicide. The undisputed evidence showed that a violent fight occurred which was characterized as a drunken brawl. There were signs of a struggle in the house. The defendant’s hair was found under his wife’s ring on her finger. In spite of this evidence of a violent drunken quarrel, this court held that the evidence was not sufficient to require an instruction on voluntary manslaughter as a lesser included offense of the charge of murder. As this court has held many times before, a court must apply an objective standard for measuring the sufficiency of the provocation. In doing so, the court should not consider the innate peculiarities of the individual defendant. We hold that the trial court did not err in refusing to instruct on voluntary manslaughter. The judgment of the district court is affirmed.	[ 80, 110, -3, 31, 41, 96, 42, -104, 114, -13, 96, -41, -23, -21, 0, 121, 122, 127, 68, 105, -48, -74, 55, 65, -78, 59, -104, -44, -78, 78, -28, -41, 8, 32, 10, 85, 70, -118, -27, 80, -116, 6, -119, -16, -56, -114, 52, 110, 118, 15, 49, -114, -77, 107, 62, -61, 76, 62, 27, -81, 64, -72, 41, 29, -38, 10, -109, -92, -34, -93, 88, 6, -103, 57, 0, -24, 114, 22, -96, 116, 109, -101, 12, 102, 99, 1, 28, -51, -32, -119, -97, 122, 29, -89, -104, 88, 105, 44, -106, -67, 97, 52, 6, 116, -19, 28, 126, -28, -112, -34, -112, -111, -115, 53, -102, -102, -21, -91, 32, 113, -49, -94, 92, 71, 121, -37, -117, -76 ]
The opinion of the court was delivered by Miller, J.: The State brings this interlocutory appeal from a pretrial evidentiary ruling made by the Shawnee District Court. We dismiss for want of jurisdiction. The appeal is taken under K.S.A. 22-3603: “When a judge of the district court, prior to the commencement of trial of a criminal action, makes an order . . . suppressing evidence ... an appeal may be taken by the prosecution . . . .” In our recent case of State v. Newman, 235 Kan. 29, 680 P.2d 257 (1984), we held that appeals may be taken under the “suppressing evidence” portion of K.S.A. 22-3603 from rulings of a trial court “which exclude State’s evidence so as to substantially impair the. State’s ability to prosecute the case.” 235 Kan. at 34. Jones was arrested by a trooper of the Kansas Highway Patrol for driving while under the influence of intoxicating liquor. The trooper noticed that Jones swayed when he walked and smelled of alcohol. Jones told the trooper that he had consumed a few beers and that he had hit a guard rail while attempting to avoid an accident with another vehicle — thus, that he had been driving his pickup after he had consumed the beers. The trooper asked Jones to take a field sobriety test. Jones completed some parts of the test, but when he was reciting the alphabet, he stopped at the letter “p” and refused to proceed. He also refused to attempt the finger-to-nose test. The trial court ruled that the prosecution could not introduce evidence of the defendant’s refusal to take the finger-to-nose test, and it could not comment on his failure to complete the alphabet test. The State then filed a notice of appeal. Later, the trial court reversed its ruling as to the comment on the alphabet test, but stood by its ruling that the State could not introduce evidence of or comment upon defendant’s failure to take the finger-to-nose test. Does that ruling substantially impair the State’s ability to prosecute this case? The State has all of the trooper’s observations of the defendant, the results of the field sobriety test, excepting one small portion thereof, and presumably it has either the results of a blood alcohol test or evidence that defendant refused to take such a test. Additionally, it has the defendant’s admissions of consumption of alcohol, followed by driving a motor vehicle, followed by a collision with a guard rail. Obviously, the State can proceed with prosecution without the excluded bit of evidence. It has no statutory authority to appeal and we have no authority or desire to review, piecemeal, every evidentiary ruling adverse to the prosecution made in the course of a criminal proceeding. We lack jurisdiction to hear the matter, and therefore dismiss the appeal.	[ -16, -22, -27, -98, 47, -64, 58, -108, 65, -89, 119, 83, 45, -46, 5, 123, 122, 93, 84, 73, -33, -74, 87, 65, 118, -13, -40, -33, -75, 95, -27, -4, 77, 32, -118, -43, 38, -54, -125, 88, -116, 5, -103, 64, 96, -102, 48, 35, 50, 15, -79, -97, -29, 42, 26, -61, -87, 44, -37, -68, 72, -16, -99, -35, 79, 20, -77, 16, -98, -123, -40, 63, -100, 49, 1, -20, 115, -90, -122, -76, 43, -103, -88, -26, 99, 33, 20, -17, -20, -87, 31, 90, -67, -89, -104, 9, 105, -83, -106, -99, 45, 16, 14, -8, -21, 20, 95, 124, 10, -49, -96, -69, 75, 52, 2, 89, -21, -91, 0, 113, -59, -16, 92, 69, 114, 31, -18, -76 ]
The opinion of the court was delivered by Lockett, J.: Randy M. Mclver appeals his conviction of felony murder, a class A felony in violation of K.S.A. 1992 Supp. 21-3401. Mclver was sentenced to life imprisonment. On appeal, the defendant claims that he was deprived of a fair trial because the district court failed to instruct the juiy on his theory of defense of suicide and improperly admitted his incriminating statement. This court has jurisdiction pursuant to K.S.A. 1994 Supp. 22-3601(b)(1). On July 27, 1992, Elmer Gamer was found dead outside his mobile home in rural McPherson County. Gamer, who was 84 years old and lived alone, had been shot once between his eyes with a small caliber weapon and was found with a white paper towel clutched in his right hand. A single .22 caliber shell casing was found in the vicinity of Gamer s body, but no gun was found. Gamer’s rifle and wallet were missing. Although Gamer never drank Budweiser beer, a half-empty Budweiser beer can was found on the ground outside the mobile home. The television was on and air conditioning was running inside the mobile home. Several pieces of correspondence soliciting Gamer’s membership in a right-to-die organization were in the home. No suicide note was found. It had recently rained, and distinctive tire tracks in Gamer’s driveway led directly to the home of Mclver, who knew Gamer and lived approximately three miles away. Officers observed that Mclver’s pickup tmck had tires that appeared, to match the tracks left at the Gamer residence. Over the course of eight months after Gamer’s death, Mclver and his wife were interviewed several times by law enforcement officers. Mclver was interviewed by law enforcement officers on July 29, 1992; August 1, 1992; August 17, 1992; March 8, 1993; and April 8, 1993. Mclver and his wife gave conflicting accounts of their activities and whereabouts on July 26, 1992. Each interview can be summarized as follows: July 29, 1992 Two days after Gamer’s body was discovered, Mclver and his wife were interviewed outside their residence for approximately 30 minutes. No Miranda warnings were given. Both Mclver and his wife stated that they were at their home until around noon on July 26, 1992, and that they then visited their neighbor until 6:30 or 7:00 p.m. They denied going to Gamer s residence, and the last time Mclver said that he saw Garner was around June 2 or 3, 1992. Mclver stated that he had no knowledge of Garner s death. August 1, 1992 Mclver was asked to come to the McPherson County Sheriff’s office, where he was interviewed for approximately 45 minutes. No Miranda warnings were given. Mclver admitted driving by Gamer’s residence sometime after 11:00 a.m. Mclver stated that he did not see Gamer at that point, so he drove on to his neighbor’s house and stayed there until about 6:30 or 7:00 p.m. Mclver said that some people were drinking Budweiser beer at the neighbor’s residence, but that he did not drink any himself. August 17, 1992 Mclver voluntarily drove to Wichita to take a polygraph examination, at which he was given Miranda warnings. Mclver’s statement was basically the same as before except that he said that the last time he had seen Gamer was in December or January. Mclver stated that he did not know of anything that might be missing from the Gamer residence. March 8, 1993 Mclver was interviewed at the McPherson County Sheriff’s office, where he was given the Miranda warnings and signed a written waiver. Mclver indicated that on the morning of July 26, his parents had visited his residence until approximately 11:00 a.m. Mclver stated that he and his wife then ate lunch and drove to a neighbor’s residence. Mclver stated that on the way to the neighbor’s residence, he stopped and visited with Garner for about 10 minutes about installing some pipes in the mobile home. Mclver stated that when they left the Gamer residence, Gamer was alive. When they left the Gamer residence, they drove out the secondary driveway past the old farmhouse and fuel tanks. Mclver denied having any arguments with Gamer or taking Gar ner’s billfold and rifle when he left the residence. Mclver also denied having any beer to drink on that date. When confronted with the fact that Gamers billfold had been found on the township road about one-half mile south of the Mclver residence, Mclver denied any knowledge of the billfold. Mclver s wife, who was interviewed separately, stated that she and Mclver drove over to their neighbor’s residence, spending the day there and leaving at about 6:30-7:00 p.m. She stated that as they were going home, Mclver mentioned something about installing some pipes at the Gamer residence, so Mclver decided to drive over and see about getting this done. Mclver’s wife stated she was very sure that it was near evening as the sun was setting and the sky was pink. While she never saw Mclver actually talking to Gamer, she stated that as far as she knew, Gamer was alive when they left the residence. She stated that she had not heard any argument between Gamer and Mclver, and denied seeing a gun at the Gamer residence. She could not remember Mclver drinking any beer at that time. April 8, 1993 Mclver was scheduled to have a routine meeting that day with his parole officer. Mclver and his wife were interviewed separately at the Rice County Sheriff’s office. Mclver was not given the Miranda warnings. Mclver initially stated that he and his wife had gone to the neighbor’s residence around noon. On their way to the neighbor’s, Mclver stated that they stopped at the Gamer residence and he talked to Gamer about installing the pipes. When asked whether he was drinking beer, Mclver first denied it, but then said that he had been drinking a beer but had thrown it out on the way to the neighbor’s house. Mclver then admitted that he drove to Gamer’s residence between 6 and 7 p.m. on July 26; that when he arrived he found Gamer dead, lying on his back; that he took Gamer’s wallet, and that he left the beer can in Gamer’s yard. Mclver denied seeing a rifle at the scene. This initial interview lasted approximately 20 minutes. Mclver’s wife was then interviewed. She recited nearly the same story that she had stated on March 8, only on this occasion she said that when they got to the Gamer residence, she saw Mclver arguing with Gamer. She said that Gamer was alive, however, when they left. She stated that she also saw Mclver throw something out the window, but she did not know what it was. When confronted with the fact that Mclver had admitted taking the wallet, she then stated that when she and Mclver first pulled up at Gamer’s, they observed him lying on the ground and already dead. She said that she saw Mclver go to Gamer, check to see if he had a pulse, and take Gamer s wallet. Mclver’s wife indicated there was about $25 cash in the wallet. She stated that she also saw Mclver grab a rifle and put it in the bed of the pickup, and that Mclver planned to sell the gun because they needed the money. After they drove away, she observed Mclver throw the wallet out of the pickup. She said that after they got home, Mclver decided to get rid of the rifle. After Mclver’s wife told officers about seeing the rifle at the scene, the officers interviewed Mclver a second time. At some point in the interview officers showed Mclver a report that falsely stated his fingerprints were found on the Budweiser beer can found at the deceased’s home. Mclver then admitted that he took Gamer’s rifle and that he had buried it in a hedge row behind his residence. This interview lasted approximately 15 minutes. During the course of the interviews, Mclver was not handcuffed or restrained and was free to leave at any time. Mclver signed a consent to search and agreed to show officers where he had buried the rifle. Mclver accompanied law enforcement officers in a police car to his home and dug up the rifle. Mclver further agreed to accompany the officers to Gamer’s residence and retrace his tire tracks around the mobile home. During the drive back to the Rice County Sheriff’s office, Mclver admitted taking $5 from Gamer’s wallet. The officers told Mclver they were going to talk to the county attorney. Mclver was released. On April 9, 1993, Mclver was charged with alternative counts of first-degree murder and felony murder. The shell casing found in the front yard was determined to have been fired from the rifle recovered at Mclver’s residence. At trial the State proceeded on the theory that Mclver killed Gamer in the process of robbing Gamer of his property. Mclver’s defense was Gamer was despondent and had committed suicide. Two witnesses testified they had visited Gamer on the afternoon of July 26, 1992, to discuss religion. In the course of their conversation, Gamer talked about some health problems he was having and mentioned that he intended to see a doctor the next day. Gamer mentioned that he had known a person who committed suicide. The witnesses stated that Gamer was friendly, did not appear to be despondent, and did not indicate he was contemplating suicide. Mclver s neighbor, who lived approximately three miles south on the same road as Mclver, testified that Mclver and his wife were at her house from around noon to approximately 6:30 p.m. Over the course of the afternoon, Mclver consumed two or three cans of Budweiser beer and took another can with him when he and his wife left in his pickup truck. Arlyn Tonn owned the McPherson County farm where Gamer lived and was a witness for the State. Tonn testified although Gamer was afraid of death, Tonn had not observed any behavioral changes in Gamer in the months preceding his death, nor had Gamer appeared to be despondent or depressed. Gamer was right-handed. Gamer’s mobile home did not have operable indoor plumbing. Gamer had an incontinence problem, and whenever Gamer went outside to urinate, he took a white paper towel with him. Tonn also owned the farmland on which Mclver lived. Mclver was often behind in making his rent payments. In lieu of paying rent, Mclver was in the process of tearing down an old house near Gamer’s mobile home and was supposed to fix the plumbing in Gamer’s residence. The pathologist who performed the autopsy on Gamer placed the time of death at 11:00 a.m. on July 26, 1992. The bullet which entered Gamer’s skull traveled in a level, straight manner and did not exit the skull. Death was virtually instantaneous. Gamer would not have had an opportunity to pick up the white paper towel in his hand after being shot, but that he may have had an opportunity to press it to his forehead by reflex action. In the pathologist’s opinion, Garner’s entrance wound was not a contact wound. Gamer had been shot from no more than 6 inches away. The pathologist further testified that, because of the location of the wound, it was improbable that Gamer had committed suicide with a rifle. His opinion was based upon the straight-in nature of the path of the bullet and the fact that it would be extremely difficult to aim a rifle in such a fashion at some distance from one’s head and still reach the trigger mechanism. The pathologist further indicated that persons committing suicide generally use their dominant hand to pull the trigger mechanism, and the fact that Gamer was clutching a paper towel in his right hand indicated that his death was not a suicide. A KBI special agent who had investigated approximately 200 homicides and suicides testified that he had never seen a suicide committed by a gunshot wound between the eyes. He considered the white paper towel in the dominant hand of Gamer to be very unusual for a gun suicide. The angle of the wound and the difficulty in anchoring the rifle to achieve this kind of wound weighed against suicide. When questioned about the differential in height between Gamer, who was approximately six feet tall, and Mclver, who was approximately five and one-half feet tall, and the angle of the bullet wound, the KBI agent advised that, based on his personal experience, when a gun is pointed at someone, they tend to look directly at the barrel. This would account for the front-to-back travel of the bullet regardless of the differential in height. Mclver’s wife testified similarly to her prior statements to the officers. Mclver testified at trial that on July 26, 1992, he left his neighbor’s residence at about 6:30 p.m. with a can of beer and arrived at the Gamer residence between 6:30 and 7:00 p.m. After stopping the tmck, he got out, carrying his half-full can of beer, and walked toward the Gamer’s mobile home. Mclver stated that he set the beer can down when he saw Gamer lying in front of the mobile home. He walked about half the distance from the comer of the mobile home to Gamer’s body, a distance of approximately six feet and a place entirely out of his wife’s eyesight as she sat in the pickup. Mclver said that he could see blood on Gamer’s face, a rifle lying beside him, and a wallet, but stated he did not walk close enough to see if Gamer was dead. Mclver claimed that he returned to his pickup without checking whether Gamer was dead. As he started to leave, he decided to get a closer look at Gamer’s body. Mclver remembered pulling Iris pickup close to Gamer’s body, getting out, and checking to see if Gamer was dead. He could not recall whether he checked Gamer’s pulse. In spite of the fact that Mclver knew he was on parole and could not possess firearms, he took the gun and Gamer’s wallet. Mclver denied being in a hurry to leave the residence and could not explain the evidence of spinning tires as the tmck left the property. As he was driving home he removed $5 from the wallet and then threw the wallet away. He never told his wife how much money was in the billfold. When Mclver was asked about the various interviews he had with the police, he admitted that he lied to hide the fact that he had been at Gamer’s residence on July 26. The only reason that he kept telling the police more and more about the events of July 26 was that his wife would tell the police things which caused him to reveal more. Mclver admitted that he testified to facts at the trial that he had never told the police officers in any of the interviews. According to Mclver, he buried the rifle because his fingerprints were on it, but never thought about his fingerprints on the billfold when he threw it out of the pickup. Mclver denied that he stole the rifle and billfold because he wanted the money. Mclver was convicted of felony murder. Instruction on Suicide During the conference on instructions for the jmy, Mclver claimed the prosecution must exclude the possibility of suicide and requested this instruction: “Before considering the charge of murder in the first degree, you must first consider whether the evidence presented is sufficient to prove that the death of Elmer Gamer was not the result of suicide. To reach this conclusion, you must find the facts presented are consistent with each other and conclusive so as to exclude suicide beyond all reasonable doubt.” The trial court refused to give the instruction, stating: “I am convinced that the principal instructions cover this. I tell the jury in their principal instructions that they must find beyond a reasonable doubt that the defendant killed Mr. Gamer. And that by its very nature, by its very terms, is to the exclusion of suicide. And it simply isn’t necessary to take all the potential theories in this case and tell the jury that the State must prove beyond a reasonable doubt that that particular theory didn’t occur. There is also the chance, for instance, that someone else could have come in and committed this crime. I think the State has to prove tirat as well, that someone else didn’t do it. But that’s all wrapped up in not so much as them disproving that as much as it is tirat they are proving that the defendant killed Mr. Gamer beyond a reasonable doubt. If they prove drat to the satisfaction of the jury, that he killed Mr. Gamer, tirat by its very finding is a finding that they’re satisfied beyond a reasonable doubt that it wasn’t suicide. I’m not going to in any way prevent you from arguing to the jury tirat the State has to prove that beyond a reasonable doubt. I think that’s implicit in the principle instruction together with the burden of proof instruction. But I think at this point to give additional instructions on that, number one, isn’t necessary, and number two, carries with it the potential to be confusing. I’m simply not going to give it.” The trial court instructed the jury that, in order to establish the crime of first-degree murder, the State must prove “[t]hat the defendant killed Elmer W. Gamer.” The trial court further instructed the jury that the State had the burden to prove Mclver guilty, that Mclver was not required to prove he was not guilty, and that the test was whether there remained a reasonable doubt as to the truth of the State’s claims. Mclver claims that the trial court should have instructed the jury on the burden of proof for affirmative defenses in accordance with PIK Crim. 3d 52.08, which states: “The defendant claims as a defense that (here describe the defense claimed). Evidence in support of this defense should be considered by you in determining whether the State has met its burden of proving that the defendant is guilty. The State’s burden of proof does not shift to the defendant. If the defense asserted causes you to have a reasonable doubt as to the defendant’s guilt, you must find the defendant not guilty.” Mclver admits that the instruction requested by the defense at trial incorporated the wrong burden of proof, i.e., “beyond a reasonable doubt.” Mclver now asserts that the jury should have been instructed: “The defendant claims as a defense that Mr. Elmer Gamer committed suicide. Evidence in support of this claim should be considered by you in determining whether the State has met its burden of proying that the defendant is guilty. The State’s burden of proof does not shift to the defendant. If the defense asserted causes you to have a reasonable doubt as to the defendant’s guilt, you should find the defendant not guilty.” Mclver changes the focus of his argument and now argues the district court’s failure to instruct the jury on suicide deprived him of a fair trial and due process of law as guaranteed by the Fourteenth Amendment. Mclver points out that in U.S. v. Douglas, 818 F.2d 1317, 1320-21 (7th Cir. 1987), the United States Court of Appeals stated that a defendant is entitled to a particular instruction on his theory of defense if he satisfies four requirements: (1) the theory proposes a correct statement of the law; (2) the theory is supported by the evidence; (3) the theory is not part of the charge; and (4) the failure to include an instruction on the defendant’s theory of defense would deny the defendant a fair trial. For authority requiring the giving of the instruction on tire defense of suicide, McIver cites State v. Doyle, 201 Kan. 469, Syl. ¶ 4, 441 P.2d 846 (1968). In Doyle, the defendant’s conviction for first-degree murder was set aside and the defendant discharged. The Doyle court found that the circumstances pointed no more strongly to criminal homicide than to death by suicide, accident, or natural causes and that it was not shown that the death did not result from suicide, accident, or natural causes. Doyle, 201 Kan. at 479. Doyle was found dead in his car with a single bullet wound in the right cheek and the gun under his hand. The court noted that “[w]here the circumstances are as consistent with the absence as well as the presence of crime, the corpus delicti has not been proved since the evidence is susceptible to a construction which will prove innocence as well as guilt.” Doyle, 201 Kan. at 479. The court further noted that “[i]f the evidence is fairly susceptible to the construction that death was accidental, or the result of suicide, or due to natural cause, then it is not sufficient to warrant a conviction, for the reason that in order to convict a defendant he must be proven guilty of the crime charged beyond a reasonable doubt.” Doyle, 201 Kan. at 479. The Doyle court stated in circumstantial cases, it is the duty of the court to determine whether there is a basis in the evidence for a reasonable inference of the defendant’s guilt. 201 Kan. 469, Syl. ¶ 6. It noted that this was a question of law for the judge to determine, not a question for the trier of fact. The rationale of Doyle was not that, under the circumstances, the jury should have been instructed that the State must overcome the inference of suicide; instead the Doyle court stated that as a matter of law the trial judge should not have allowed the jury to consider if the defendant was guilty and should have directed that the defendant be discharged. In State v. Henderson, 226 Kan. 726, 732, 603 P.2d 613 (1979), the court observed that the rationale in Doyle that when the accused is charged with causing the death of the victim the possibility of death by suicide or natural causes must be excluded, had not been followed in our later cases. The Henderson court noted that the theory that the prosecution is under an affirmative duty to rule out every hypothesis except that of guilt beyond a reasonable doubt has been rejected by the United States Supreme Court. Jackson v. Virginia, 443 U.S. 307, 326, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); Holland v. United States, 348 U.S. 121, 140, 99 L. Ed. 150, 75 S. Ct. 127 (1954). The Henderson court observed that Doyle was a case where the prosecution presented an extremely weak circumstantial case for murder. It noted that in Doyle, the dead man was found seated behind the steering wheel of his car, with a single bullet wound in his right temple and a pistol lying beside his right hand on the seat of the car. There was no evidence that placed the defendant at the scene of the alleged crime. It noted that because the circumstantial evidence surrounding the death thus pointed no more strongly to criminal homicide than to death by accident or suicide, the trial judge improperly submitted the question of guilt to the jury. The Henderson court concluded that in cases where there was evidence placing the defendant in contact with the decedent or other evidence distinguishing the facts from Doyle, the prosecution was not under an affirmative duty to rule out every hypothesis of death and the question of guilt should be submitted to the jury. Mclver states that although suicide is not an affirmative defense, under the facts of this case death by suicide must be excluded before the State may convict him of homicide. Mclver s rationale is the jury should be instructed that when the defendant presents any theory of defense (suicide) that causes the jury to have a reasonable doubt as to the factual cause of death alleged by the prosecution, it should find the defendant not guilty. In State v. Peters, 232 Kan. 519, 520, 656 P.2d 768 (1983), this court was confronted with a similar argument when the defendant objected to the judge giving an instruction on the defense of alibi. It noted that an alibi is not an affirmative defense.’ See PIK Crim. 3d 52.19. The Peters court pointed out that an alibi is evidence showing that the defendant was not present at the time or place of the crime. The court said if an instruction is given, attention is called to the defendant’s alibi, which connotes a burden not found in the law. 232 Kan. at 520. We have concluded in State v. Skinner, 210 Kan. 354, 361, 503 P.2d 168 (1972), that “the danger in instructing separately relative to the defense of alibi lies in the almost insurmountable difficulty of avoiding connotation of some burden on the accused to prove the defense.” We have noted that evidence merely tending to refute or deny one of the elements of the crime charged does not necessarily constitute an affirmative defense entitled to a separate instruction. State v. Davis, 236 Kan. 538, 542, 694 P.2d 418 (1985). This is true because when a defendant asserts an affirmative .defense to the charge, it is assumed that facts alleged in the charging instrument are true, and if the affirmative defense is found to be factually true by the jury, the defendant should be found not guilty. Affirmative defenses to a crime charged are set out in the Kansas Criminal Code, K.S.A. 21-3101 et seq. PIK Crim. 3d 52.08 sets out 38 separate instances where an instruction on affirmative defenses is required. Examples of an affirmative defense in PIK Crim. 3d are: Ignorance or Mistake of Law, PIK Crim. 3d 54.04; Intoxication-Involuntary, PIK Crim. 3d 54.11; Compulsion, PIK Crim. 3d 54.13; Entrapment, PIK Crim. 3d'54.14; and Use of Force in Defense of a Person, PIK Crim. 3d 54.17. Mclver’s argument to expand the burden of proof of the State to first prove that the victim did not commit suicide is not per suasive. Doyle does not support giving such an instruction. Mclver fails to cite a state or federal case which supports the proposition that requires an instruction on the defense of suicide. See State v. Foster, 229 Kan. 362, 366, 623 P.2d 1360 (1981); State v. Knoxsah, 229 Kan. 36, 39, 622 P.2d 140 (1981); State v. Henderson, 226 Kan. 726, 732, 603 P.2d 613 (1979). Contrary to Mclvers assertion, the principal instruction given on first-degree murder and the burden of proof adequately instructed the jury. If the jury concluded there was reasonable doubt as to Mclvers guilt, for any reason, it was instructed to find Mclver not guilty. The trial court correctly refused to instruct tire jury that the State had to prove that the victim did not commit suicide. Failure to Object Mclver and his wife were interviewed numerous times over the course of eight months. They embellished their statements during successive interviews and eventually revealed information implicating Mclver. Mclver argues for the first time on appeal that his implicatoiy statements during an interview with law enforcement officers on April 8, 1993, were inadmissible because: (1) it was a custodial interrogation and he was not given his Miranda warnings; and/or (2) the statements were involuntary. The State objects to this court’s consideration of this issue because Mclver did not object to the introduction of his statements at trial. K.S.A. 60-404 states: “A verdict or finding shall not be set aside, nor shall die judgment or decision based diereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to die evidence timely interposed and so stated as to make clear the specific ground of objection.” Prior to trial a hearing was conducted in accordance with Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964), to determine if the defendants’ statements to the officers were voluntaiy. The judge determined that Mclver’s statements were voluntary. Defense counsel did not file a motion to suppress Mclver’s statements or object to the introduction of the statements at trial. On appeal, Mclver argues that because the judge had found that the statements were voluntary, objecting to the admission of the statement at trial would serve no useful purpose. Mclver asserts that even if an objection to the admission of the statements was required, this court should review the trial court’s admission of the statements in the interests of justice because an officer used a falsified report which deceived Mclver into believing his fingerprints were found on the beer can left at the scene of the crime. The State cites to numerous cases supporting its position that Mclver cannot raise the issue that the introduction of his statements was improper for the first time on appeal. See State v. Wilson, 247 Kan. 87, 98, 795 P.2d 336 (1990) (failure to object to witness’ testimony at trial precludes raising issue on appeal); State v. Skelton, 247 Kan. 34, 48, 795 P.2d 349 (1990) (failure to object to the introduction of physical evidence at trial precludes raising issue on appeal); State v. Bishop, 240 Kan. 647, 659, 732 P.2d 765 (1987) (following K.S.A. 60-404, erroneous admission of witness’ testimony held not to be reversible error where defendant failed to object at trial); Douglas v. Lombardino, 236 Kan. 471, Syl. ¶ 2, 693 P.2d 1138 (1985) (when a motion in limine is denied, the moving party must object to the evidence at trial to preserve the issue on appeal); State v. Chiles, 226 Kan. 140, 144, 595 P.2d 1130 (1979) (following K.S.A. 60-404, failure to object to photographic identification at trial precludes review on appeal). Although ordinarily this court will not consider an issue which has not been raised in the trial court or which has not been raised by the parties on appeal, the court does have the power to do so in exceptional circumstances, where consideration of the new issue is necessary to serve the interests of justice or to prevent a denial of fundamental rights. See State v. Clemons, 251 Kan. 473, 483, 836 P.2d 1147 (1992) (whether defendant’s Fourth Amendment rights were violated by admission of item seized in warrantless search considered despite defendant’s failure to raise issue at trial); State v. Puckett, 230 Kan. 596, Syl. ¶ 1, 640 P.2d 1198 (1982) (Court of Appeals’ sua sponte review of erroneous jury instructions upheld). In this case, there is ample evidence to support the trial court’s finding that the April 8 interview was not a custodial interrogation. The evidence adduced at the Jackson v. Denno hearing indicates Mclver was free to leave if he wished to do so and was not in custody. In addition, Mclver had twice previously been given Miranda warnings. Under the totality of the circumstances present here, it does not appear that the trial court's ruling was erroneous or that the new issue raised on appeal must necessarily be decided to serve the interests of justice or to prevent a denial of fundamental rights. When the unfavorable ruling on an evidentiary question prior to trial was received, Mclver was required to make a timely objection to such evidence when introduced at trial in order to preserve the issue for appeal.See State v. Peckham, 255 Kan. 310, Syl. ¶ 7, 875 P.2d 257 (1994). No exceptional circumstances exist in this case. Affirméd.	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The opinion of the court was delivered by Six, J.: This is a first impression case requiring us to construe K.S.A. 60-260(b). The specific question is whether a motion to modify a divorce decree was untimely because the motion was not filed within a “reasonable time,” although it was filed within one year of the decree. The parties’ written property settlement agreement was incorporated into the decree. The trial court denied the motion to modify. In a 2-1 decision, the Court of Appeals affirmed. 19 Kan. App. 2d 986, 880 P. 2d 1279 (1994). We granted the ex-husband’s petition for review. We agree with the Court of Appeals’ interpretation of K.S.A. 60-260(b). A motion to modify under K.S.A. 60-260(b)(l), (2), and (3) must be filed within a reasonable time and not more than one year after the judgment, order, or proceeding sought to be modified was entered. We find no abuse of discretion and affirm. Facts Craig and Marla Larson were divorced on January 9, 1992. The divorce decree incorporated their “Property Settlement Agreement” (Agreement), which determined rights of maintenance (alimony), child support, and custody of their four children, in addition to dividing their property. Under the agreement, Craig agreed to pay Marla $1,900 per month until June 2006 for maintenance, child support, and property settlement, besides periodic lump sum payments. (The total of all payments would be about $370,000 over 15 years.) Under the Agreement, Craig retained the one-half ownership interest in a cattle feedlot, Yuma Performance Feeders, Inc. (YPF), that he and Marla had owned jointly. Craig’s parents owned the other half. The record does not provide a clear picture of Craig’s financial position at the time the Agreement was reached. Craig himself seemed to lack a firm understanding of his own net worth, mainly because of the uncertain financial status of YPF. Craig was represented by the same attorney when he signed the Agreement in Januaiy 1992 and when he filed the motion to modify one year later. By the time the hearing on the modification motion was held in November 1993,- Craig had changed to his current counsel, who also represented his parents. At the hearing on the motion to modify, Craig testified that he signed the Agreement with Marla in January 1992 based on his belief that the feedlot was making a “good profit.” Craig introduced into evidence two different profit and loss statements for YPF showing figures through November 1991. One showed that YPF netted $9,499.98 in November and $5,540.17 in October. The other purports to show YPF’s monthly profit and loss totals for 1991, excluding December. When read together, the exhibits suggest that YPF’s monthly profits exceeded $8,000, on average, and that YPF was on track in 1991 for yearly profits of about $100,000. Craig said he relied on these profit numbers in deciding to sign the January 1992 Agreement. Shortly after Craig and Marla reached their Agreement, an accountant reviewing YPF’s books found that the feedlot’s financial condition was considerably different. Lance Bohall, CPA, informed Craig and his parents in a March 9, 1992, letter that he had discovered $254,625.96 in unrecorded accounts payable. Bohall cited “poor controls and/or bad judgment coupled with unusual deals made by the manager,” as the reasons for the unrecorded expenses. On March 21, 1992, Bohall completed his report on YPF’s finances for the year ending December 31, 1991. The 1991 year-end report showed a net loss of $187,965. By comparison, a year-end report for 1990 showed YPF with a net profit of $55,999. Thus, by March 1992, Craig had specific information showing that YPF was in trouble and that his anticipated income from YPF profits would not be even close to what he had projected. Furthermore, YPF was heavily in debt, and its revised financial picture made obtaining credit difficult as existing creditors tightened the reins. Craig’s parents had to inject $200,000 cash into the business to satisfy creditors and prevent foreclosure. By May 1992, according to Craig’s testimony, the manager blamed for much of the trouble was gone; Craig was managing the feedlot himself; he had laid off some help; and he was working 18-hour days trying to keep the business running. Meanwhile, Craig had fallen behind in his payments to Marla almost immediately after the Agreement was filed. Within a year, Craig was $17,000 in arrears. Craig’s only source of income was a $2,000 per month salary from YPF. The record shows that Marla’s attorney filed motions in February, March, and December of 1992 to show cause why Craig should not be punished for contempt. A hearing was held on the motions on January 4, 1993, and the trial court ordered Craig to pay at least $900 of his $2,000 per month salary to Marla to avoid being found in contempt. Craig filed his motion to modify the divorce decree under K.S.A. 60-260(b) on January 8, 1993. The trial court, after hearing all the evidence, including testimony from Craig, his accountant, Craig’s mother, Marla, and a bank executive, denied modification of the property settlement and maintenance provisions in the Agreement. It granted modification of child support. The trial court reasoned: (1) YPF was under the exclusive control of Craig and his parents during 1991 when the heavy losses incurred at the hands of manager, (2) the motion was not made within a reasonable time in that Craig knew of YPF’s substantial losses in March 1992 and waited nine months to file a motion for modification, and (3) “there is no way to put the parties back into a position where they were on January 9th of 1992, and the condition has deteriorated further since that date.” The Court of Appeals’ Opinion The Court of Appeals recognized the first impression issue of whether the “reasonable time” requirement in K.S.A. 60-260(b) is separate and distinct from the one-year limitation for filing such motions with respect to statutory grounds (1), (2), and (3). Siding with many federal courts and commentators interpreting Rule 60(b) of the Federal Rules of Civil Procedure, which is identical to K.S.A. 60-260(b), the Court of Appeals held that “as to motions filed under 60-260(b)(l), (2), and (3), the one-year period rep resents an extreme limit and the motion may be rejected as untimely if not made within a' ‘reasonable time’ even though it was filed within one year of the date the decree sought to be modified was entered or taken.” 19 Kan. App. 2d at 992. The Court of Appeals then considered whether the trial court abused its discretion in concluding that the motion to modify was not filed within a “reasonable time.” The court found that “strong arguments can be made for both parties,” but upheld the trial court’s decision. 19 Kan. App. 2d at 998. The majority emphasized that: (1) Craig carried the burden of showing abuse of discretion; (2) Craig had not proffered a valid justification for delaying his motion for nine months after learning of the feedlot’s true problems in March 1992; (3) either party would be prejudiced “rather equally” by an adverse ruling on the motion for modification; (4) Craig’s predicament was largely one of his own making because he signed the Januaiy 1992 Agreement despite knowledge of possible problems in the feedlot’s finances; and (5) restoring the status quo as of January 1992 is impossible at this point. 19 Kan. App. 2d at 996-98. The Court of Appeals majority emphasized that deference must be given to the trial court in this kind of determination. The majority conceded that “strong arguments can be made for both parties,” and said that under such circumstances, the “superior position of the trial court” takes on even greater meaning. It lamented that it could “gaze only at a cold, printed record, which does not give us the undefinable ‘feel’ which a trial court has in resolving matters of this nature.” 19 Kan. App. 2d at 998. Interpretation of K.S.A. 60-260(b) Craig first seeks review of the Court of Appeals’ interpretation of the time limitation applicable to motions for relief under 60-260(b)(1), (2), and (3). The pertinent statutory text provides: “On motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under K.S.A. 60-259(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; ... or (6) for any other reason justifying relief from the operation of the judgment. The motion shall be made ivithin a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken.” K.S.A. 60-260(b) (Emphasis added). Our standard of review is unlimited. Interpretation of a statute is a question of law. Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992). Craig brought his motion to modify under 60-260(b)(l) and (2), alleging a mistake and newly discovered evidence with respect to the true value and income potential of his ownership in YPF. He filed his motion on January 8, 1993, within one year after entry of the divorce decree on January 9, 1992. Nevertheless, the trial court and Court of Appeals held that his motion could be deemed untimely as not brought within a “reasonable time.” 19 Kan. App. 2d at 992. In his petition for review, Craig cites several Kansas cases to support his position that meeting the one-year deadline is sufficient for motions under 60-260(b)(l), (2), and (3). Craig relies on In re Adoption of J.H.G., 254 Kan. 780, 869 P.2d 640 (1993); Jones v. Jones, 215 Kan. 102, 523 P.2d 743, cert. denied 419 U.S. 1032 (1974); Cool v. Cool, 203 Kan. 749, 457 P.2d 60 (1969); In re Thomas, 16 Kan. App. 2d 518, 825 P.2d 1163, rev. denied 250 Kan. 805 (1992); and In re Marriage of Hunt, 10 Kan. App. 2d 254, 697 P.2d 80 (1985). None of those cases raised the issue of “reasonableness” presented in the case at bar. The precise question now before us is whether a motion under 60-260(b)(1), (2), or (3) can be denied as untimely even if filed within one year. J.H.G., Jones, Cool, Thomas, and Hunt referenced the one-year hmitation; however, unreasonable delay was not a contention. A motion under 60-260(b)(1), (2), or (3), must be filed within a reasonable time, not to exceed one year, after the decree was entered. Any interpretation of language in previous cases to the contrary is disapproved. In J.H.G., for example, a natural mother, who initially consented to release her baby for adoption, filed a motion to set aside the adoption decree four months after the adoption decree became final. Because her motion was filed after the decree became final, she was too late to invoke K.S.A. 1993 Supp. 59-2116. Her only option was to proceed under 60-260(b). We stated: “A motion to set aside an adoption decree for fraud must be filed within one year after the decree was entered. K.S.A. 59-2213; K.S.A. 60-260(b)(3).” (Emphasis added.) 254 Kan. at 792. No issue was raised in J.H.G. as to whether the four-month period between the filing of the adoption decree and her motion to set it aside was unreasonable. We concluded that her motion was timely under 60-260(b), but denied the motion on its merits. We question the following language in In re Thomas, 16 Kan. App. 2d at 526: “In essence, if the [K.S.A. 60-260(b)(6)] motion is filed within one year of the entiy of judgment, the trial court may grant relief for any of the reasons set forth in the statute.” All 60-260(b) motions “shall be made within a reasonable time.” The K.S.A. 60-260(b) one-year outside limitation applies only to a motion “for reasons (1), (2) and (3).” The Court of Appeals’ interpretation of 60-260(b) in the instant case is supported by the plain language of the statute. The use of a comma followed by “and” (rather than “or”) suggests that the one-year limit is in addition to, not in place of, the “reasonable time” limitation for 60-260(b)(l), (2), and (3). See K.S.A. 60-260(b) (“within a reasonable time, and for reasons (1), (2) and (3)”). The analysis of the Court of Appeals is endorsed by the commentary from 3 Vernon’s Kansas C. Civ. Proc. § 60-260.4, pp. 522-23 (1964). Our independent research suggests that the Court of Appeals’ construction of 60-260(b) carries the unanimous support of courts and commentators interpreting the identical language in Rule 60(b) of the Federal Rules of Civil Procedure. See, e.g., White v. American Airlines, Inc., 915 F.2d 1414, 1425 (10th Cir. 1990); Kagan v. Caterpillar Tractor Co., 795 F.2d 601, 606 (7th Cir. 1986); Ashford v. Steuart, 657 F.2d 1053, 1055 (9th Cir. 1981); Rhodes v. Houston, 258 F. Supp. 546, 558 (D. Neb. 1966), aff’d 418 F.2d 1309 (8th Cir. 1969), cert. denied 397 U.S. 1049 (1970); 11 Wright and Miller, Federal Practice and Procedure: Civil § 2866 p. 232 (1973); 7 Moore’s Federal Practice ¶ 60.24[4], p. 60-209 (1993). We have repeatedly noted that federal cases interpreting rules identical to those existing in the Kansas Code of Civil Procedure are entitled to “persuasive weight.” Snodgrass v. State Farm Mut. Auto. Ins. Co., 246 Kan. 371, 376, 789 P.2d 211 (1990); Neagle v. Brooks, 203 Kan. 323, 327, 454 P.2d 544 (1969). Craig contends that his interpretation finds support in 1 Gard’s Kansas C. Civ. Proc., 2d Annot. § 60-260(b), p. 350 (1979), which says the following: “The provision is a considerable departure from the former practice in several respects: (1) reducing the period of limitation from two years to one for relief from fraud, and from three years to one for relief from mistakes and omission; (2) making newly discovered evidence a ground for relief within one year in lieu of extending the time for filing a motion for new trial on that ground; (3) substituting ‘reasonable time’ in lieu of specific time limitations for making the motion where the grounds are other than those within the. one year period of limitation.” We do not draw the same conclusions from the above paragraph that Craig does. Gard’s explanation of how 60-260(b) changed the prior law does not address the question presented here, which is whether a “reasonable time” may expire before one year has elapsed from the judgment from which relief is sought, where a motion is brought under 60-260(b)(l), (2), or (3). We affirm the Court of Appeals’ analysis on the statutory construction issue. Whether Craig Filed for Relief Within a “Reasonable Time” We next consider the difficult question of whether Craig filed his 60-260(b) motion within a “reasonable time.” The trial court ruled he did not. The standard of review is abuse of discretion. Rulings on motions under 60-260(b) rest within the sound discretion of the trial court and will not be reversed absent a showing of abuse of discretion. In re Marriage of Zodrow, 240 Kan. 65, Syl. ¶ 2, 727 P.2d 435 (1986). The Court of Appeals affirmed, reasoning that the trial court had not abused its discretion. Discretion is considered to have been abused only when no reasonable person would take the view adopted by the trial court. In re Marriage of Cray, 254 Kan. 376, 387, 867 P.2d 291 (1994). The burden of showing abuse of discretion lies with the party alleging abuse. Falls v. Scott, 249 Kan. 54, 63, 815 P.2d 1104 (1991). The Court of Appeals has held that the “reasonable time” frame in 60-260(b) is “measured by determining when the movant came into possession of facts justifying the relief as compared to the time when he filed the motion seeking the relief.” Wilson v. Wilson, 16 Kan. App. 2d 651, 659, 827 P.2d 788, rev. denied 250 Kan. 808 (1992). Wilson further held that what is a “reasonable time” for seeking relief from judgment depends on the facts of each case. Relevant considerations include whether the parties were prejudiced by the delay and whether good cause has been shown for failing to take action sooner. 16 Kan. App. 2d 651, Syl. ¶ 6. In the case at bar, the Court of Appeals also looked to several federal decisions to mark the parameters of “reasonable time” within the one-year outer time limit under 60-260(b)(l), (2), and (3). Most of the statements quoted from federal decisions in the Court of Appeals’ opinion essentially mirror what was said in Wilson. One factor that was not stated in Wilson, which the Court of Appeals expressly approved in the instant case, is the following: “ ‘[A]s the delay in making the motion approaches one year there should be corresponding increase in the burden that must be carried to show that the delay was “ ‘reasonable.” ’ ” 19 Kan. App. 2d at 996 (quoting Amoco Overseas Oil Co. v. Compagnie Nationale Algerienne, 605 F.2d 648, 656 [2d Cir. 1979]). We endorse the reasoning in Wilson and the Amoco factor adopted by the Court of Appeals. Craig’s Knowledge When He Signed the Agreement Under a broad analysis of equities, what Craig knew about YPF’s troubles prior to signing the Agreement is relevant. As the Court of Appeals noted, Craig knew when he signed the Agreement that YPF was being audited at the request of a major creditor. Consequently, his problems are to some extent of his own doing. Larry Maxwell, president of Northwest Kansas Production Credit Association (NKPCA), testified that his association became aware of “unauthorized use of some loan funds” at YPF in mid-November 1991. NKPCA sent a letter to the Larsons in November 1991 requesting CPA-prepared financial information before agreeing to continue financing. Although there is no indication that Craig knew or should have known of the extent of YPF’s problems in January 1992, his judgment in signing the divorce Agreement is subject to question because YPF was under financial review and he had “suspicions” of its well-being. He claimed in a letter to the trial judge that he was being pressured by creditors to resolve the divorce and that influenced his decision. There is no evidence in the record of any such pressure, other than his statement. We note that the agreement was signed on the day that the divorce trial was scheduled to begin. The trial judge said that he had “finally forced” the case to trial by January 9, 1992. What is really before us, however,- is a much narrower question — whether Craig’s nine-month delay in seeking relief, after learning in March 1992 that YPF was deep in the red, was “unreasonable.” What were the reasons for Craig’s delay? Are those reasons legitimate justifications? Did the delay result in prejudice or unfair advantage to either party? Reasons Given for the Nine-Month Delay Craig was asked by his counsel during the hearing: “Can you explain to the court why [the motion] wasn’t filed sooner?” Craig answered: “Well, I had written letters and letters over and over and over to people, and talked to my attorney about getting something done on this, and nothing ever, there was no acknowledgment, you know. I’ve written letters to Judge Worden [the trial judge] and Marla [the ex-wife] and Allen [Marla’s attorney and husband], and tried to get somebody to listen to, to, you know, I’ve got copies of them and dates and everything, but nothing ever was happening. Plus, we were working so hard trying to keep everything from falling to pieces that — ” Craig also was asked if he knew in March or April 1992 if YPF would be able to recover any of its losses from the former manager. Craig answered that he did not, stating, “[W]e didn’t know whether [the manager] had put the money in an account somewhere or if, you know, some way we could go back through the records and figure out what happened. It takes time.” Craig’s reasons for the nine-month delay were: (1) he tried to act sooner but could not get his attorney or anyone else to help him; (2) he was working hard txying to keep the feedlot from going under; and (3) he was uncertain for a while whether YPF would be able to recover some of its losses suffered at the hands of the former manager. Craig’s explanation that he tried to get his attorney to act sooner has no support in the record, other than his testimony. Although he claimed to have copies of letters and dates, no such letters were introduced into evidence. The only letters in the record from Craig to anyone are two letters to the trial judge, dated January 2, 1993, and May 24, 1993. Both letters, therefore, were sent after the nine-month delay and do not further Craig’s claim that he tried to act sooner. The primary inquiry is whether nine months was a reasonable delay for filing a motion to modify after Craig learned information that drastically changed his financial outlook. If nine months does not seem reasonable, then the question is whether Craig has come forward with good reasons for the delay. He may have been working long hours trying to save the feedlot, and he may have had difficulty communicating with his chosen counsel, but those justifications do not lead us to a finding of abuse of discretion. Whether Craig Waived His Challenge Concerning Maintenance The district court held that it lacked jurisdiction under Kansas law to modify the maintenance provisions because the parties did not provide for modification in the Agreement and did not subsequently consent to a modification, citing Bair v. Bair, 242 Kan. 629, 750 P.2d 994 (1988). See K.S.A. 60-1610(b)(3). The Court of Appeals did not review this ruling. We were informed by counsel during oral argument that the maintenance issue was not argued before the Court of Appeals. Craig briefed the issue, however. In his brief, he contended that under In re Marriage of Hunt, 10 Kan. App. 2d at 259, relief from maintenance provisions in a separation agreement may be granted under 60-260(b) under certain circumstances, despite Bair and 60-1610(b)(3). Bair was not a case where relief from judgment was sought under 60-260(b). In Bair, modification was sought more than 10 years after the decree was entered incorporating the separation agreement. By contrast, Hunt and other Court of Appeals cases have held relief under 60-260(b) is available “given the proper factual setting.” Hunt, 10 Kan. App. 2d at 258-59. For example, relief might be granted either where a separation agreement was procured by fraud or where material facts affecting whether the agreement is just and equitable were not known to the parties and the court at the time the agreement was incorporated into the divorce decree. See Hunt, 10 Kan. App. 2d 254; Oehme v. Oehme, 10 Kan. App. 2d 73, 691 P.2d 1325 (1984); Richardson v. Richardson, 3 Kan. App. 2d 610, 599 P.2d 320, rev. denied 226 Kan. 792 (1979). The district court erred in holding that it lacked jurisdiction to modify maintenance. Nevertheless, the dispositive question remains whether Craig filed his 60-260(b) motion within a “reasonable time.” If he did not, then he is not entitled to modification of either the property settlement or maintenance. We find no abuse of trial court discretion. Affirmed.	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The opinion of the court was delivered by LOCKETT, J.: Defendant was found guilty of one count of first-degree premeditated murder, two counts of attempted first-degree murder, and one count of aggravated batteiy. He claims his convictions for aggravated batteiy and attempted first-degree murder of one victim are multiplicitous and the district court improperly denied his waiver of a jury trial, failed to give lesser included offense instructions, and improperly excluded consideration of mitigating evidence when imposing the hard 40 sentence. At about 7 a.m. on September 20, 1995, Leroy Periy knocked on Rogena Richards’ door and requested to use her telephone. Rogena, who had known Periy since he was a baby, allowed him to use the telephone. She told Perry to hurry because she needed to get dressed. Rogena went into the kitchen. When she returned, Rogena again told Periy to hurry. Periy said to Rogena that she could not rush him and began striking her with a hard, sharp object. Rogena asked Perry to stop; then she blacked out. When Rogena regained consciousness, she was unaware that Perry had shot her near the left eye. She heard noise upstairs and went to a neighbor’s house for help. Lori Richards, Rogena’s 22-year-old daughter, was in her bedroom when she was awakened by Perry. Periy directed Lori into the bedroom of Lori’s 16-year-old sister, Dana. As Lori watched, Perry shot Dana. Lori returned to her bedroom to call 911. Perry followed Lori and forced her to get into bed. Perry first shot Lori in the stomach, and then he shot her in the head. Lori regained consciousness in the hospital. Dana did not survive. Perry was arrested later the same day of the shooting. On September 22, 1995, Perry’s attorney filed a motion to determine Perry’s competency. The district court ordered a competency evaluation at Lamed State Security Hospital on September 25, 1995. On December 13, 1995, the district court was advised by Lamed State Security Hospital that Perry was incompetent. The district court ordered Perry to remain at Lamed for 6 months or until competent to stand trial. Perry was determined competent on March 5, 1996, and subsequently returned to the district court for further proceedings. Other relevant facts will be provided as necessary. Denial of Defendant’s Waiver of a Jury Trial Prior to trial, Perry requested that his case be tried to the court without a jury. The State objected, and the court denied Perry’s request. K.S.A. 22-3403(1) provides: “The defendant and prosecuting attorney, with the consent of the court, may submit the trial of any felony to the court. All other trials of felony cases shall be by jury.” See State v. Siver, 237 Kan. 569, 701 P.2d 699 (1985). Perry challenges the constitutionality of the district judge’s refusal to allow his case to be tried to the court. Perry claims he was denied a fair trial because of jury bias. In support of this argument, Perry asserts that during selection of the jury panel, numerous potential jurors from the small community stated strong opinions regarding his guilt and the legal defense of insanity. Perry argues that under these circumstances the district court’s refusal to permit his waiver of a jury trial resulted in a constitutionally unfair trial. Noting United States v. Moon, 718 F.2d 1210, 1218 (2d Cir. 1983), the State asserts that Perry must show actual prejudice to warrant a new trial. The State argues Perry has provided no evidence of prejudice or that the prosecutor’s refusal to waive a jury trial was improperly motivated. The State points out that defense counsel failed to question the venire after the State’s voir dire. The State argues that under these circumstances, we can assume de fense counsel was satisfied with the impartiality of the jury pool, and Periy cannot now complain of prejudice. Perry contends that the United States Supreme Court recognized the right to waive a jury trial in Patton v. United States, 281 U.S. 276, 74 L. Ed. 854, 50 S. Ct. 253 (1930). To support this contention, Periy quotes language from Patton that suggests the power to waive a jury trial is a right of the accused. 281 U.S. at 298. We disagree. Patton does not control the issue in this case. Patton concerned the accused’s right to waive a jury of 12 members and proceed with a jury of 11 members where the court and the prosecutor have no objection to the waiver. Clearly, the issue in Patton was significantly different than the issue in this case. The Patton Court’s holding was narrowly tailored to the specific question on appeal. In addition, Patton has been extensively abrogated and called into doubt by subsequent Supreme Court cases. See Williams v. Florida, 399 U.S. 78, 26 L. Ed. 2d 446, 90 S. Ct. 1893 (1970); Singer v. United States, 380 U.S. 24, 33-37, 13 L. Ed. 2d 630, 85 S. Ct. 783 (1965). A defendant’s only constitutional right concerning the method of trial is to an impartial trial by jury. Singer, 380 U.S. at 36. Despite the fundamental nature of the right to a jury trial; it is agreed the constitutional and statutory provisions guaranteeing the right extend a privilege to the accused which may be waived. State v. Irving, 216 Kan. 588, 589, 533 P.2d 1225 (1975). Although the right to waive a jury trial exists, trial, by jury has been established by the Constitution as the “normal and . . . preferable mode of disposing of issues of fact in criminal cases.” Patton, 281 U.S. at 312. “The ability to waive a constitutional right does not ordinarily carry with it the right to insist upon the opposite of that right.” Singer, 380 U.S. at 34-35. The public has a great interest in jury trials in criminal cases; therefore, a defendant cannot waive a jury trial without the consent of the State and the judge. United States v. Goodwin, 457 U.S. 368, 73 L. Ed. 2d 74, 102 S. Ct. 2485 (1982). There is no constitutional right to a criminal trial before a judge sitting alone. Singer, 380 U.S. at 34. There is no constitutional impediment to conditioning a waiver of the right to a trial by jury on the consent of the State and the trial judge, when, if either refuses to consent, the result is simply that the defendant is subject to an impartial trial by a jury— the very thing that the Constitution guarantees the defendant. Singer, 380 U.S. at 36. The jury trial has been surrounded with safeguards to make it as fair as possible. For example, venue can be changed when there is a well-grounded fear of jury prejudice, and prospective jurors are subject to voir dire examination, to challenges for cause, and to peremptory challenges. K.S.A. 22-2616(1); K.S.A. 22-3408; K.S.A. 22-3410; K.S.A. 22-3411a; K.S.A. 22-3412. Perry failed to take advantage of the safeguards provided. In addition, without supporting evidence, his argument that prejudice in the community denied him a fair trial is not persuasive. Therefore, we find no error. Multiplicity The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights provide that no person shall be twice placed in jeopardy for the same offense. Perry was charged with aggravated battery and attempted first-degree murder for beating and shooting Rogena Richards. Relying on State v. Cathey, 241 Kan. 715, 741 P.2d 738 (1987), Perry asserts that there was only a single criminal act; therefore, the convictions for both crimes are multiplicitous, i.e., he was twice placed in jeopardy for a single offense. Multiplicity is the charging of two or more counts in a complaint where only a single criminal act supports the charges. K.S.A. 21-3107(1) allows charging an individual with multiple violations arising from a single transaction when the same conduct may establish the commission of more than one crime. The fact that an accused is charged with multiplicitous counts in a complaint or information is not in and of itself a violation of the Double Jeopardy Clause. The clause merely prevents a defendant from being punished more than once for the same crime. State v. Mincey, 265 Kan. 257, 261-62, 963 P.2d 403 (1998). The principles for determining whether the convictions for attempted first-degree murder and aggravated battery of Rogena Richards, are multiplicitous are: (1) A single offense may not be divided into separate parts and, generally, a single wrongful act may not furnish the basis for more than one criminal prosecution; (2) if each offense charged requires proof of a fact not required in proving the other, the offenses do not merge; and, (3) where offenses are committed separately and severally, at different times and at different places, they cannot be said to arise out of a single wrongful act. State v. Cathey, 241 Kan. at 718-19. The claim of multiplicity was raised in Cathey where two brothers avenging a beating inflicted upon another brother, beat and shot the person who they believed to have beaten their brother. Ron Cathey was convicted of aggravated battery and attempted first-degree murder. On appeal, Cathey claimed the convictions were multiplicitous. In determining whether the convictions were multiplicitous, we said: “Where there is only one victim and two acts of violence — a beating and a shooting — occurring at approximately the same time and place, the person who inflicts such injuries cannot be charged with [or convicted of] both aggravated battery and attempted murder. To hold otherwise would be inconsistent with our reasoning in Games that when a series of violent acts occurs simultaneously, it is multiplicitous to charge both aggravated battery and attempted first-degree murder.” 241 Kan. at 719-20. In an attempt to distinguish Cathey, the State asserts that the aggravated batteiy conviction was based upon Periy pistol whipping Rogena, and the attempted first-degree murder conviction was predicated upon Perry shooting Rogena. In analyzing the State’s assertion there were two separate criminal acts, it is necessary to review the State’s complaint, the district court’s jury instructions, the verdict form, and the evidence. The State’s charging document does not distinguish between the beating and the shooting. Jury Instruction No. 7 stated: “The defendant is charged with the crime of an attempt to commit first degree murder of Rogena Richards. The defendant pleads not guilty. “To establish this charge, each of the following claims must be proved: “1. That the defendant performed an act toward the commission of the crime of first degree murder of Rogena Richards; “2. That the defendant did so with the intent to commit the crime of first degree murder; “3. That the defendant failed to complete commission of the crime of first degree murder; and “4. That this act occurred on or about the 20th day of September, 1995, in Atchison County, Kansas. “The elements of first degree murder are: “1. That the defendant intentionally killed Rogena Richards; “2. That such killing was done with premeditation; and “3. That this act occurred on or about the 20th day of September, 1995, in Atchison County, Kansas.” The lesser included offense instructions for attempted first-degree murder did not include aggravated batter)'’. Jury Instruction No. 17 provided: “The defendant is charged with the crime of aggravated battery of Rogena Richards. The defendant pleads not guilty. “To establish this charge, each of the following claims must be proved: “1. That the defendant intentionally caused great bodily harm to, or disfigurement of, Rogena Richards; “2. That this act occurred on or about the 20th day of September, 1995, in Atchison County, Kansas.” The instructions to the jury do not require the jury to distinguish between the pistol whipping and the shooting to determine whether two separate acts occurred. Nor do the jury verdict forms distinguish the separate acts of violence claimed by the State. The evidence was that Perry that beat Rogena into unconsciousness and then shot her. Rogena was a single victim. The jury was not instructed to determine whether the acts were committed separately and severally, at different times or at different places. Under the circumstances, it cannot be said that the attempted murder conviction and the aggravated battery conviction did not arise out of a single wrongful act. Perry perpetrated a series of violent acts simultaneously against Rogena. Therefore, the aggravated battery and the attempted first-degree murder convictions are multiplicitous, requiring reversal of die aggravated battery conviction. Lesser Included Offense Perry argues that for his shooting of Lori and Rogena Richards, the district court should have given instructions on aggravated battery as a lesser included offense of attempted first degree-murder. Perry concedes that he did not request this instruction at trial. This issue can be raised for the first time on appeal pursuant to K.S.A. 21-3107(3), which provides: “In cases where the crime charged may include some lesser crime, it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced.” See State v. Sanders, 258 Kan. 409, 413, 904 P.2d 951 (1995); State v. Bowman, 252 Kan. 883, 892, 850 P.2d 236 (1993). Although the trial court has a statutory duty to instruct the jury on lesser included offenses, the duty has limitations. A criminal defendant has a right to an instruction on all lesser included offenses supported by the evidence at trial so long as (1) the evidence, when viewed in the light most favorable to the defendant’s theory, would justify a jury verdict in accord with the defendant’s theory and (2) the evidence at trial does not exclude a theory of guilt on the lesser offense. State v. Moncla, 262 Kan. 58, 73-74, 936 P.2d 727 (1997); State v. Harris, 259 Kan. 689, 702, 915 P.2d 758 (1996). Could the jury reasonably convict Perry of aggravated battery? Here, the evidence was that Perry beat Rogena into unconsciousness and then shot her in the head. He then proceeded upstairs where he shot and killed Dana Richards. After shooting Dana, Perry stomped on her skull. Perry then shot Lori in the stomach and in the head. The evidence is clear that Perry’s intent was not to cause great bodily harm or disfigurement to the victims; he intended to kill the victims. Under the facts, a lesser included instruction of aggravated battery was not required. Imposition of Hard 40 Sentence During the sentencing hearing, Perry’s counsel requested that Perry again be evaluated to determine his competency prior to being sentenced. Perry’s counsel asserted to the judge that he had doubts as to Perry’s competency but provided no evidence that Perry’s competency had changed since Lamed State Security Hospital found Perry competent to stand trial. The trial judge denied the request for a continuance and a determination of competency. The judge stated that he had not observed any changes in Perry during or after the trial. There was no evidence that Perry’s competency had changed since last being evaluated at Lamed. In light of the judge’s ruling, Perry then sought to continue the sentencing hearing. Perry’s attorney offered no explanation for why he could not proceed nor why he required a continuance. The trial judge denied the request for a continuance and sentenced the defendant. Perry now asserts that the trial judge erred in not granting his request for a continuance and ordering a determination of his competency. The State’s request to ran sentences consecutively requires the sentencing judge to permit a defendant to present evidence in mitigation of his or her sentence. See K.S.A. 21-4637. Perry asserts he was not allowed to present evidence of mitigation. However, the record shows that the trial judge did permit Perry to present evidence of mitigation. Perry argued to the judge that his lack of capacity at the time of the crimes warranted mitigation. Perry was offered an opportunity by the sentencing judge to present further evidence of mitigation. Perry declined to do so. Neither Perry nor his counsel informed the district judge of a need for additional time to obtain mitigating evidence. On appeal, Perry does not indicate additional mitigating factors he could have presented below. This claim has no merit. We note that Perry’s counsel admitted to the sentencing judge that there was no evidence that Perry was not competent or any evidence to support Perry’s claim that his competency status had changed since his last evaluation at Lamed. Under the circumstances, the trial court’s decision not to order a competency evaluation or grant a continuance was not error. Three days prior to sentencing, the State filed a motion requesting that the court impose a life sentence for count one, the first-degree murder conviction, with parole eligibility after serving 40 years and that the sentences imposed for counts two, three, and four be consecutive to count one. In support of its motion, the State cited K.S.A. 21-4716, K.S.A. 21-4718, and K.S.A. 21-4608 and asserted that Perry’s stomping on his deceased victim’s head was excessively brutal. The State also pointed out that the victims had not provoked Perry and that the viciousness of Perry’s attacks warranted protecting the community as long as statutorily permissible. Perry argues that the fact he placed more than one person in risk of death cannot be considered in imposing the hard 40 because he was not given notice that factor would be relied upon by the State in its motion. Perry cites State v. Gideon, 257 Kan. 591, 600-01, 894 P.2d 850 (1995), for the proposition that the State must give notice of the aggravating circumstances upon which it will rely in seeking a 40-year sentence. Even though the State’s notice did not list this factor, this argument fails for several reasons. The Gideon court interpreted a statute that was replaced by the Kansas death penalty statute in 1994. Today, K.S.A. 21-4635 governs whether a 40-year sentence may be imposed. It provides, in relevant part, that “if a defendant is convicted of murder in the first degree based upon the finding of premeditated murder, the court shall determine whether the defendant shall be required to serve a mandatory term of imprisonment of 40 years or sentenced as otherwise provided by law.” (Emphasis added.) The State no longer is required to notify a defendant of its intention to seek a 40-year sentence. The responsibility for determining the imposition of a 40-year sentence originates with the sentencing judge, not the State. In reaching a decision, the judge is directed to consider the aggravating factors and mitigating factors set out in K.S.A. 21-4636 and K.S.A. 21-4637. Aggravating circumstances include a finding that the defendant committed the crimes in an especially heinous, atrocious, or cruel manner. K.S.A. 21-4636(f). Perry also asserts that the imposition of a life sentence without the possibility of parole for 40 years is unsupported by evidence. Perry points out there is no evidence that the murder victim suffered prior to the shooting because the evidence indicated that the victim was shot once in the head and it was only after death occurred that he crushed her skull. He argues that the physical abuse to Dana did not occur prior to the victim’s death. See State v. Cook, 259 Kan. 370, Syl. ¶ 8, 913 P.2d 97 (1996). When the sufficiency of the evidence is challenged for establishing the existence of an aggravating circumstance in a hard 40 sen tence proceeding, the standard of review is whether, after a review of all tire evidence, viewed in the light most favorable to. the prosecution, a rational factfinder could have found the existence of the aggravating circumstance beyond a reasonable doubt. State v. Reed, 256 Kan. 547, 564, 886 P.2d 854 (1994). For purposes of determining the existence of aggravating factors regarding whether a murder was committed in a heinous, atrocious-, or cruel manner, the term “heinous” means extremely wicked or shockingly evil; “atrocious” means outrageously wicked and vile; and “cruel” means pitiless or designed to inflict a high degree of pain, or utter indifference to, or enjoyment of the suffering of others. State v. Alford, 257 Kan. 830, 838, 896 P.2d 1059 (1995). The aggravating circumstance that a murder was committed in an especially heinous, atrocious, or cruel manner is established when the perpetrator- inflicts serious mental anguish or serious physical abuse before the victim’s death; mental anguish includes the victim’s uncertainty as to his or her ultimate fate. State v. Gideon, 257 Kan. at 612. In State v. Alford, the sufficiency of the evidence was challenged by a defendant convicted of first-degree murder. The record in Alford indicated that Alford shot his victim twice, chased her and forced her into a restaurant kitchen, shot her again, and dragged her back into the kitchen and tried to shoot her again. The gun then jammed, causing it to click several times before he was able to shoot his victim two more times, killing her. This court determined that these facts constituted substantial competent evidence supporting the determination the crime was committed in an especially heinous, atrocious, or cruel manner. 257 Kan. at 838. In this case, the evidence that the crime was committed in a heinous, atrocious, or cruel manner was that Perry forced one of his victims to witness the shooting death of her sister and he waved the gun around in front of his victims before shooting them. This evidence was sufficient to support the finding that the crimes were committed in an especially heinous, atrocious, or cruel manner. However, there is additional evidence to sustain the imposition of the hard 40 sentence. In addition to the murder conviction, the defendant was convicted of a crime in which he inflicted serious physical abuse on another. For purposes of determining whether to impose a 40-year sentence without parole for a first-degree murder conviction, the facts surrounding Perry’s convictions for crimes against the other two victims are relevant. See K.S.A. 21-4636(b); Gideon, 257 Kan. at 614. We agree that K.S.A. 21-4635(b) prohibits the State from introducing aggravating evidence during the sentencing hearing without first informing the defendant. This is to allow the defendant the opportunity to rebut such evidence. However, there was no evidence admitted at the sentencing hearing. The judge relied on the evidence admitted at trial. Perry was well aware of that evidence and had ample opportunity to rebut that evidence at the sentencing hearing; therefore, this argument also fails. Perry’s final argument against imposition of a 40-year sentence is that the trial court erred in determining there were no mitigating factors. On appeal, Perry claims there was substantial evidence that he was psychotic at the time of the offenses. This defense was raised during the trial, and the juiy determined beyond a reasonable doubt that Perry was cognizant of his actions and that the murder was premeditated. The trial court’s determination that Periy’s mental state was not a mitigating factor was not error. Affirmed in part and reversed in part.	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The opinion of the court was delivered by Lockett, J.: Worker appeals an order of the Workers Compensation Board (Board) dismissing the worker’s appeal as not being timely filed because the administrative law judge mailed the award to the wrong address. Worker claims the administrative law judge’s clerical error tolls the time for filing an application for review with the Board. Hong Van Nguyen sustained a work-related injury on or about March 2, 1993. On July 29, 1996, special administrative law judge (ALJ) Michael T. Harris awarded Nguyen permanent partial disability benefits based on 25 percent functional impairment to the left forearm. A copy of the award was mailed by the ALJ by United States first class mail to Nguyen’s attorney at his address in Emporia, Kansas. The ALJ mistakenly placed the zip code for Topeka, Kansas, in the attorney’s address. After a circuitous routing, postal authorities delivered the award to Nguyen’s attorney on September 6, 1996. Nguyen’s attorney filed an application for review by the Board on September 9,1996, 3 days after receipt of the award. IBP, Inc., (IBP) objected to Nguyen’s appeal, asserting that an application for review filed out of time deprived the Board of jurisdiction of the appeal. The Board agreed and dismissed Nguyen’s appeal as untimely. Nguyen appealed the Board’s dismissal of the case to the Court of Appeals. The case was transferred to this court pursuant to K.S.A. 20-3018(c). The single issue is whether the ALJ’s error in addressing Nguyen’s notice of award, which delayed Nguyen’s receipt of the award until after the 10-day period for filing an application for review had expired, tolled the time for filing an application for review. Nguyen makes two arguments in support of his contention that the ALJ’s error tolled the running of the statutory time: First, the unique circumstances of this case provide a basis for relief; second, the misaddressed award was insufficient to satisfy minimal due process notice requirements. IBP’s position is that the time for taking an appeal is jurisdictional and any delay beyond the statutory time for taking an appeal in a workers compensation case, regardless of the reason, is fatal to the appeal. IBP relies primarily on the holding of Jones v. Continental Can Co., 260 Kan. 547, 557, 920 P.2d 939 (1996), which determined that the Workers Compensation Act is complete in itself and cannot be supplemented by the general procedural provisions of the Kansas Code of Civil Procedure which extend the time for a party to act. Procedure for Review The right to review of an ALJ award by the Board is stated in K.S.A. 1996 Supp. 44-551(b)(1), which provides, in part: “All final orders, awards, modifications of awards, or preliminary awards under 44-534a and amendments thereto made by an administrative law judge shall be subject to review by the board upon written request of any interested party within 10 days.” The effective date of a workers compensation award is the day following the date noted by the ALJ in the award. K.S.A. 1996 Supp. 44-525(a). Nguyen contends that the Workers Compensation Act is to be liberally construed in favor of the claimant and the standard of review is abuse of discretion. IBP disputes Nguyen’s contention as to liberal construction in favor of the worker and argues that the issues presented are purely jurisdictional, thereby precluding the exercise of discretion by the Board to hear the case. Prior to 1987, the Workers Compensation Act stated it was the duty of the courts to liberally construe the workers compensation statutes to award compensation to the worker where it was reasonably possible to do so. Angleton v. Starkan, Inc., 250 Kan. 711, 716, 828 P.2d 933 (1992). The liberal construction rule favoring the worker was altered by the legislature in 1987 by the addition of subsection (g) to K.S.A. 44-501. K.S.A. 1996 Supp. 44-501(g) provides: “It is the intent of the legislature that the workers compensation act shall be liberally construed for the purpose of bringing employers and employees within the provisions of the act to provide the protections of the workers compensation act to both. The provisions of the workers compensation act shall be applied impartially to both employers and employees in cases arising thereunder.” Nguyen’s contention that this court should liberally construe the Workers Compensation Act in favor of the claimant is no longer supported in law and has not been countenanced by the appellate courts in post-1987 cases. See, e.g., Miner v. M. Bruenger & Co., 17 Kan. App. 2d 185, 193-94, 836 P.2d 19 (1992). The issue presented requires us to determine whether the Board has the jurisdiction to consider a claimant’s application for review filed beyond the statutory 10-day limit. Resolution of the issue requires interpretation of statutes involving review of compensation awards. Interpretation of a statute is a question of law subject to unlimited review by an appellate court. McIntyre v. A. L. Abercrombie, Inc., 23 Kan. App. 2d 204, 929 P.2d 1386 (1996). K.S.A. 1996 Supp. 44-523 provides, in part: “(c) When all parties have submitted the case to an administrative law judge for an award, the administrative law judge shall issue an award within 30 days. . . . When the award is not entered in 30 days, any party to the action may notify the director that an award is not entered and the director shall assign the matter to an assistant director or to a special administrative law judge who shall enter an award forthwith based on the evidence in the record, or the director, on the director’s own motion, may remove the case from the administrative law judge who has not entered an award within 30 days following submission by the party and assign it to an assistant director or to a special administrative law judge for immediate decision based on the evidence in the record.” K.S.A. 1996 Supp. 44-551(d) provides, in part: “In case of emergency the director may appoint special local administrative law judges and assign to them the examination and hearing of any designated case or cases.” The ALJ was required to issue an award within 30 days of the party’s submission of the case to the ALJ. See K.S.A. 1996 Supp. 44-523. The provision in 44-523(c) that an award shall be made within 30 days from the time the matter is submitted to the ALJ is designed to secure prompt action; it does not impose a time limitation upon the Director’s jurisdiction to make an award. See Bradford v. Boeing Military Airplanes, 22 Kan. App. 2d 868, 873, 924 P.2d 1263, rev. denied 261 Kan 1082 (1996). Therefore, the 30-day limitation is directory only, not mandatory. More than 3 months passed between the date this case was submitted to the ALJ and Nguyen’s receipt of the ALJ’s award. A recent Court of Appeals case filed prior to oral argument in this case, Anderson v. Bill Morris Constr. Co., Inc., 25 Kan. App. 2d 603, 966 P.2d 96 (1998), Judge Lewis, dissenting, dealt with a similar issue. Anderson considered whether a delay beyond the statutory time for rendering a decision creates a responsibility on the part of the claimant to inquire about the status of his or her case. In Anderson, the ALJ rendered an order in favor of the injured worker on January 31, 1997, after conducting a preliminary hearing on January 29, 1997. Because of a mistake by the ALJ involving the current address of the attorney for Morris Construction and its insurer, Fireman’s Fund, the claimant’s attorney did not become aware of the order until February 24, 1997. The attorney filed an application for review on that date. The Board noted that die ALJ’s order was issued on January 31, 1997, and that the application for review was not filed until February 24, 1997. Finding that more than 10 days had elapsed between those two dates, excluding Saturdays, Sundays, and legal holidays, the Board determined that the application for review was untimely. The sole issue was whether under the circumstances the Board correctly determined that the application for review was untimely filed. K.S.A. 77-613(e) and K.S.A. 60-205(b)(2) require service (notice) of an order or other papers to be mailed to the last known address of the party or the parties’ attorney. The majority of the Court of Appeals found that the fact that the award was not mailed to the last known address of the parties’ attorney does not extend the 10-day rule under 44-551(b)(1). The majority noted that 44-551(b)(1) and K.A.R. 51-18-2 require an application for review to be made “on or before the tenth day after the effective date” of the ALJ’s decision. The majority rejected the argument by Morris Construction and Fireman’s Fund that the time for filing an application for review does not begin to run until the attorney actually receives the order. The majority found that the 10-day rule for requesting review runs from the day after the ALJ’s action, rather than from the date service is made. Morris Construction and Fireman’s Fund also contended that the deadline of 44-551(b)(1) should be extended on the basis of excusable neglect. In arguing that an excusable neglect standard should be applied, Morris Construction and Fireman’s Fund cited K.S.A. 60-2103(a). The majority noted that K.S.A. 60-2103(a) states that “upon a showing of excusable neglect based on a failure of a party to learn of the entry of judgment the district court in any action may extend the time for appeal not exceeding 30 days from the expiration of the original time herein prescribed.” The majority concluded that the purpose of the 10-day rule under 44-551(b)(1) is to promote finality of workers compensation claims. The rule prevents an interested party from challenging the ALJ’s actions long after the ALJ’s decision has been made. It found that excusable neglect could not justify the untimeliness of Morris Construction and Fireman’s Fund’s application for review. The majority tiren observed that both Morris Construction and Fireman’s Fund were actively involved in the case. It pointed out that K.S.A. 1996 Supp. 44-534a(a)(2) requires an ALJ to render a decision within 5 days from the conclusion of the preliminary hearing. Because Morris Construction and Fireman’s Fund participated in the preliminary hearing, they were aware that the ALJ w'as required to make a decision shortly after the hearing. The majority noted that if Morris Construction and Fireman’s Fund had made a timely inquiry after the preliminary hearing in this matter, they would have discovered that the ALJ had issued her order on January 31, 1997, and that the 10-day period under 44-551(b)(1) had commenced on February 1, 1997. The majority concluded that the responsibility to inquire into the deadline for filing an application for review was not so burdensome as to outweigh the increasing need for the expeditious judicial administration of workers compensation cases, and dismissed the appeal. In his dissent, Judge Lewis noted that under the Workers Compensation Act, there is a 10-day period within which an application for review must be filed. If an application for review is not filed within 10 days of the date of the decision, no review may be allowed. He stated that it is axiomatic that one would be unable to file an application for the review of an order until such time as one had information that the order had been issued. He observed that it w'as the ALJ who had failed and neglected to notify the appellants of her written opinion. She had mailed a copy of that opinion to the wrong address. As a direct result, the appellants did not become aw'are of the ALJ’s decision until more than 10 days after it was handed down. Judge Lewis pointed out that under the majority opinion, the appellants will be denied a valuable legal right to seek review because they relied upon the administrative law judge to do her job and notify the appellants when the decision was filed. After reviewing the unique circumstances doctrine and our prior decisions, Judge Lewis concluded that the appellants had lost their right to the review of a workers compensation decision because they were not notified of that decision by the administrative law judge in a timely manner. The appellants had every right to rely on die ALJ to advise the parties of her decision. Judge Lewis stated that to deprive the appellants of a review of that decision because of a mistake made by the writer of that decision was not his idea of justice. The petition for review in that case was filed within 10 days of the date the appellants learned of the ALJ’s order. In line with Schroeder, Slayden, and Sumner County, Judge Lewis would hold the appeal was timely filed via the application of the unique circumstances doctrine and in the interest of justice. Judge Lewis concluded the trial court should be reversed and the matter remanded for further proceedings. The appellants in the Anderson case have petitioned this court for review. In this case, IBP submitted the case to the ALJ on May 22, 1996. Therefore, if the majority of the Anderson court is correct, Nguyen should have anticipated an award from the ALJ by June 22, 1996. The record indicates that on July 22, 1996, the Director of Workers Compensation appointed a special ALJ for the purpose of issuing the award. Although the statute provides for an immediate decision by the special ALJ, the term “immediate” is not defined in terms of a number of days. Allowing another 30 days for the newly appointed special ALJ to issue an award in this case, it would be reasonable for Nguyen to anticipate notice of an award by August 22, 1996. Nguyen received notice of the award on September 6, 1996. Does the passing of 3 months from submission of the case until notice of the ALJ’s award preclude a finding that Nguyen exercised good faith and had a reasonable basis for remaining in anticipation of the award on September 6, 1996? Unique Circumstances This court has recognized that an otherwise untimely filing may be excused when “unique circumstances” are present. See Slayden v. Sixta, 250 Kan. 23, 26, 825 P.2d 119 (1992). The unique circumstances doctrine, as it has been applied in the context of an untimely appeal, provides: “In the interest of justice, an appeal which is otherwise untimely may be maintained in unique circumstances if (1) the appellant reasonably and in good faith relies upon judicial action seemingly extending the appeal period; (2) the court order purporting to extend the appeal time was for no more than 30 days and was made and entered prior to the expiration of the official appeal period; and (3) the appellant files a notice of appeal within the period apparently judicially extended.” Schroeder v. Urban, 242 Kan. 710, Syl., 750 P.2d 405 (1988). This court also cautioned that the unique circumstances doctrine is one of “specific and limited application.” In re Tax Appeal of Sumner County, 261 Kan. 307, 316, 930 P.2d 1385 (1997). In fact, this court has applied the unique circumstances doctrine only where an untimely fifing was the result of a nonparty error. See 261 Kan. at 317 (untimely filed petition for reconsideration excused where Board of Tax Appeals made erroneous statemént with respect to filing period); Slayden, 250 Kan. at 30-31 (applying unique circumstances doctrine where 40-day delay in serving summons was caused by error of clerk of the district court); Schroeder, 242 Kan. at 713-14 (untimely fifing of appeal excused where the district court purported to extend the appeal period). The unique circumstances doctrine was not applied in the United States District Court for. the District of Kansas where the party alleged that a 6-year fifing delay was caused by ongoing litigation collaterally related to the case. Gray v. Phillips Petroleum Co., 998 F. Supp. 1221 (D. Kan. 1998). Here, the fifing delay was the direct result of an error made in the ALJ’s office in addressing the award to Nguyen. This is precisely the kind of situation where the unique circumstances doctrine has been applied in Kansas to toll the time for fifing for review of a case, and we could find it applicable in this case. However, the question to be resolved, the right of notice, should be determined without resort to a specific and limited application of the unique circumstances doctrine. Due Process Nguyen relies on Atkinson v. U.S.D. No. 383, 235 Kan. 793, 684 P.2d 424 (1984), to support his position that, although the Workers Compensation Act has been held to be complete in itself and cannot be supplemented by the procedural statutes in Chapter 60 of the Kansas Code of Civil Procedure, United States and Kansas constitutional due process considerations are applicable. The right to an appeal in this state is neither a vested nor constitutional right, but is strictly statutory in nature. It may be limited by the legislature to any class or classes of cases or in any manner, or it may be withdrawn completely. However, where the legislature has provided the right of an appeal, the minimum essential elements of due process of law in an appeal affecting a person’s life, liberty, or property are notice and an opportunity to be heard at a meaningful time and in a meaningful manner. The reason to require notice to the party is to ensure that the party having the right to appeal has actual knowledge that an adverse judgment has been rendered. 235 Kan. 793, Syl. ¶ 4. To satisfy due process, notice must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. State v. Lewis, 263 Kan. 843, Syl. ¶ 9, 953 P.2d 1016 (1998). In Atkinson, the court found the 3-day mail rule of K.S.A. 60-206(e) applied where a school board provided notice to a teacher of termination by means of the mail. This court held the teacher had the 30-day appeal period plus 3 days, or 33 days in which to perfect an appeal to the district court. IBP argues that Atkinson is inapplicable to this case because, unlike the statutes under consideration in Atkinson, which provided that the time for taking an appeal begins when the party having the right to appeal has received notice of the judgment, the Workers Compensation Act specifically provides that the time for taking an appeal commences when the award or order becomes effective, and the award becomes effective the day after it is issued. IBP also emphasizes this court’s holding in Continental Can, 260 Kan. at 557, that the Workers Compensation Act is complete in itself and may not be supplemented by the general procedural provisions of the Kansas Code of Civil Procedure, including statutes providing relief for excusable neglect and failure to learn of a judgment. Although IBP correctly states that the Workers Compensation Act is complete in itself, it fails to recognize that due process is a United States and Kansas constitutional protection, and the procedures of the Workers Compensation Act must include procedures adequate to provide due process. In Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 314, 94 L. Ed. 865, 70 S. Ct. 652 (1950), the United States Supreme Court noted that while the fundamental requisite of due process of law is the opportunity to be heard, this right has little reality or worth unless one is informed of the pending matter and can decide whether to participate. Notice should be more than a mere gesture; it should be reasonably calculated, depending upon the practicalities and peculiarities of the case, to apprise interested parties of the pending action and afford them an opportunity to present their case. 339 U.S. at 314-15. IBP argues that the mere filing of the award by the ALJ is all that is required to commence the running of the time limit for filing an application for review. See K.S.A. 1996 Supp. 44-525(a). IBP is correct where the filing of the award is accompanied by notice to the parties. However, the filing of an award is not notice to the parties; it is the mailing of the award and receipt of the award by the parties that constitutes notice. Where, as in the usual case, the ALJ mails the award to the parties upon filing the award, the date after the filing is effective to commence the running of the time for filing an application for review. However, where the award is misaddressed to the extent the claimant fails to receive the award prior to the running of the time limitation, notice sufficient to satisfy due process has not been provided. Clearly, incorrectly addressing Nguyen’s award, with the result that Nguyen received the award well after the statutory time for filing an application for review, was not a method of notice which was reasonably calculated to apprise Nguyen of the decision and afford him an opportunity to present his objections. Nguyen filed his application for review within 3 days of receiving the award. Under the circumstances, the Board erred in dismissing the case based on the running of the statutory time limit for filing. Evidentiary Issues IBP contends that this court may not extend the filing date to Nguyen based on the evidence submitted to the Board in Nguyen’s application for review: the misaddressed envelope and affidavits of Nguyen’s secretary and of a United States postal employee. IBP argues the evidence is incompetent to extend jurisdiction because the respondent has not had the opportunity to examine the envelope or the affiants. This argument is premature. It is the function of the administrative hearing body to determine the weight or credibility of the testimony of witnesses as to this claim. Boutwell v. Domino’s Pizza, 25 Kan. App. 2d 110, 113, 959 P.2d 469, rev. denied 265 Kan. 884 (1998). The Board’s dismissal of the case is reversed, and the matter is remanded for further proceedings.	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The opinion of the court was delivered by Davis, J.: The defendant, Gary J. Bell, appeals from his conviction and life sentence for second-degree murder. He contends that the trial court failed in its duty to instruct on lesser included offenses raised by the trial evidence. He also argues that supplemental instructions given outside his presence require reversal. We conclude no reversible error occurred and affirm. Facts The defendant was charged with the second-degree intentional murder of Paul Madden, who died from multiple gunshot wounds inflicted by the defendant about noon on February 27, 1997. The shooting occurred while the victim was in his truck in front of the Taylor Food Mart (Taylor Mart), a convenience store in Cheney. The victim suffered five separate gunshot wounds: a wound to the left shoulder, from the left to right side on an upward angle; a wound to the upper left back which perforated the heart and came out through the front of the chest; a wound in the left middle of the back through the abdomen, left kidney, heart, and spleen, with the bullet coming to rest in the left chest; a wound directly left to right through the side of the body into the spine; and a wound to the right hand. The State’s theory at trial was that the defendant acted out of jealousy because his former wife had recently moved in with the victim. The defendant claimed that his first shot was an act of self defense, that he blacked out after the first shot, and that he did not intend to kill the victim. Other than the defendant’s testimony at trial, the record fails to support his version of what occurred in front of the Taylor Mart. Moreover, his trial testimony of what occurred differed significantly from what he told the police shortly after the shooting. Stella Bell met and married the defendant in 1982. At the time of the shooting, Stella was 35 years old and the defendant was 53. They had one child of the marriage, Jeremy, who was 11 at the time of trial, and Stella had two other children, Brad, 15, and Rocky, 17. The Bells moved to Kansas in 1986 and started a restroom cleaning business called Odor Masters. According to Stella, she and the defendant divorced in 1993 because the defendant was very controlling, and also because the defendant was in poor health and, therefore, she was doing all the work in the business. Soon after the divorce, Stella, the children, and Stella’s mother began living in a trailer behind the defendant’s house outside of Kingman. Stella moved back in with the defendant by 1994, and by 1996 they had moved into a house in Kingman. Stella testified that by February 1997, she had decided to leave the defendant. Their business was failing and the house was subject to a sheriff s sale. Stella was working at the Taylor Mart in Cheney. The couple had recently had a disagreement regarding Jason Morris, a 20-year-old who frequented the Taylor Mart. Jason and Stella had become friends as the result of his 2 to 3 visits per day to Taylor Mart, and their friendship had advanced to the point where Jason had kissed Stella. However, the defendant had informed Ja son that he and Stella were still married by common law and that Jason should stop going to the Taylor Mart. The events leading up to the shooting began on Saturday, February 22, 1997. Stella testified that the defendant drove her and their son Jeremy to Garden Plain to look at trailers for herself and the children. A friend of Stella’s, Jeanni Miller, worked at Champs Bar in Cheney, and Stella was going to go to Cheney that evening to eat with her. Stella stated that the defendant became upset because he felt that he was not invited to go with Stella. According to Stella, she did not know why the defendant was getting upset because the defendant, Stella, and the children usually went to Champs on Saturday night. They arrived at Champs and the defendant jumped out and went in. Jason was inside playing pool. The defendant became angiy and called Jason outside. Stella began arguing with the defendant. The defendant kept asking her if she was having an affair with Jason. Finally, although it was not true, she stated to him, “Yeah, you’re right, Pm having sex with Jason.” The defendant then told Stella to “have a nice life,” got in the van, and left. Stella and Jeremy both went into Champs and ate. They then walked down the street to the house of the victim, Paul Madden, to use the telephone. Stella testified that she had become friendly with Madden as the result of his visits to the Taylor Mart and admitted that she and Madden had previously discussed having a relationship, but that she had asked Madden to back off because she wanted to work on her marriage with the defendant. Madden told Stella that she and the children could stay at his house until she found a place to live. Stella made telephone calls to locate her two other sons but could not. That night, Stella and Madden slept in the bed and Jeremy slept on the couch, although Stella testified that she and Madden did not have intercourse that night. Stella went to work Sunday morning. The defendant came into the store that afternoon and asked her to come home. Stella did not tell the defendant where she was staying but, instead, told the defendant only that Jeremy was staying with Jeanni Miller. Early Monday morning, Stella received a call from the defendant at Madden’s house. The defendant wanted to know why Stella was not at work. When Stella told the defendant that she had overslept and needed to call her boss to let him know, the defendant told Stella not to worry as he was already at the Taylor Mart and would tell her boss that she was on her way. Prior to having Madden drop her off at work, Stella called Police Chief H.D. Lubbers. Chief Lubbers agreed to meet her at the Taylor Mart to avoid trouble. She did not know at that time that the manager of the Taylor Mart, fearing a disturbance because the defendant was there, had already called for police. Officer Terry Tompkins testified that when he arrived at the Taylor Mart at approximately 7:55 a.m., the defendant was inside. The defendant told Officer Tompkins that he had been upset but that he was not going to cause trouble. Madden then pulled up to let Stella out and the defendant began walking out, stating to Officer Tompkins, “You don’t mind if I go out and shake this man’s hand, do you?” to which Tompkins replied: “Yes, I do. Gary, we’re not going to do this.” At that point, Madden drove away and Chief Lubbers pulled up. Chief Lubbers asked the defendant what was going on. He told the defendant that it was not a good idea to pursue Stella if Stella did not want him. The defendant promised not to cause trouble and left. Later that afternoon, the defendant again came into the Taylor Mart. According to Stella, the defendant was despondent about bills that needed to be paid. At one point, the defendant pulled out a gun and put it in his mouth saying, “I’ll end it all right here and that way there won’t be no problems.” Jeremy was in the store when he did this. Stella at that time gave the defendant three money orders to cover the bills. On Tuesday, Stella and Madden took Stella’s three boys to enroll them in the Cheney schools and they went to Kingman to get the boys out of school. They were at the middle school when the defendant came in and confronted them saying that he wanted to talk to Madden and tell him that Stella slept with everybody and spent money like crazy. Stella told the defendant not to make a scene and that he did not need to talk to Madden. She agreed to go to the defendant’s house and pick up her belongings. Madden, Stella, Bradley, and Jeremy went to the house and loaded up Stella’s belongings. The defendant kept insisting that he wanted to talk to Madden and tell him what a lowlife person Stella was and how he lifted Stella out of the gutter. According to Stella, as she and Madden were leaving, the defendant begged Stella to come home, saying that he still loved her. Rocky Bell testified that the defendant told him after Stella and Madden left that he had been controlling himself not to shoot Madden. The next day, Wednesday, the defendant brought papers to the Taylor Mart relating to Stella’s son Rocky. Again, the defendant asked Stella to come home. He also attempted to kiss her. Stella testified that on that night, she and Madden decided to be a couple and were intimate “to a certain point.” Rocky Bell testified that on Wednesday night, the defendant put his .38 pistol in his mouth and threatened to shoot himself. Thursday, the day of the shooting, the defendant showed up at the Taylor Mart for the beginning of Stella’s shift at 6:00 a.m. The defendant stated that he needed to make telephone calls in an attempt to sell his boat which had been sitting outside of the Taylor Mart with a “for sale” sign on it. He also wanted Stella to fill out an insurance application for him so that he. could get his bail bondsman’s license. The defendant waited until 8:00, at which time Madden brought the boys into the store before they went to school. The defendant talked to the boys and then Madden left. The defendant continued to stay at the store and then finally left to mail his insurance application. Stella received a telephone call from the postmaster stating that the defendant wanted to pick up the mail for the Taylor Mart. She told the postmaster to let the defendant have the mail. At approximately 11:40, the defendant left the Taylor Mart. Around that time, Madden called Stella and offered to bring her lunch. Madden was going to stay and eat with Stella but saw that the defendant was again driving into the parking lot. Stella told Madden to just go home. According to Stella, Madden walked to his truck. The defendant stood at the door to the Taylor Mart and then started walking over towards Madden’s truck. Stella ran out of the Taylor Mart and saw the defendant standing at the window of Madden’s truck. Stella then said to the defendant, “Why are you doing this? Why can’t you just leave the man alone? He has nothing to do with this. It’s over and you know it’s over.” By this time, Madden had put the truck in reverse. The defendant turned to Stella and stated, “But he’s done killed me,” and pulled out a gun. Stella stated that she cried out for the defendant to put the gun away, heard a noise, and suddenly the truck window was gone. The defendant repeatedly fired the gun as Stella jumped on his back and attempted to knock the gun away. Stella testified that she thought she heard five shots. Stella then ran back into the store. There were other witnesses to the shooting. Carol Brozek, a customer at the Taylor Mart, stated that she saw the defendant walk towards Madden’s truck and saw Stella go out to attempt to talk to the defendant. Brozek stated that she heard Stella tell the defendant that nothing was going on between Madden and herself. Then, according to Brozek, the defendant suddenly reached into the truck at Madden, the glass broke, and she saw Stella jumping onto the defendant’s back. Brozek then turned to her mother-in-law who was also inside the store and stated, “There’s going to be a fight.” She then heard a gunshot. She thought that she heard six shots altogether. Wayne Castor, a disabled police officer, was also in the Taylor Mart at the time. He testified that while Stella was talking to the defendant, she shoved the defendant. The defendant then shoved Stella, pulled out a gun, and fired into the cab of Madden’s pickup. According to Castor, Madden’s hands were on the steering wheel of the pickup during this time. Castor testified that the defendant raised his hands above the window and fired at a downward angle numerous times. The defendant then left in his van only to return to the scene almost immediately. Police Chief Lubbers responded to a 911 call from the Taylor Mart. He asked the defendant where the gun was. The defendant directed him to the passenger seat of his van where Lubbers re trieved a Charter Arms 38 Special revolver with five expended shells. A search of the van also turned up a 30-06 rifle and a 9 mm semi-automatic pistol, along with numerous rounds of ammunition. A search of the victim’s truck revealed no weapons. The Defendant’s Version The defendant testified that on the day of the shooting, he got up early and went to Cheney to try to talk to Stella again. He realized he was “making a pain” of himself but hated to give up on his relationship with Stella. He stayed at the Taylor Mart that morning and talked to customers while Stella did her reports. He then helped Stella with the reports and also with some other things around the store. The defendant testified that he planned to talk to people in Wichita about selling his boat. He also planned to sell his 30-06 deer rifle and his 9 mm semi-automatic pistol, and he had both of those firearms in the van. During the morning, he called a marina regarding selling his boat, then after 10 a.m. he went to the post office to mail his insurance application so that he could continue with his plan to become a bail bondsman. At around 11:00, he went to the marina and made plans to bring his boat there to be sold. He then headed back to the Taylor Mart to get the boat. On the way back, he remembered that Stella had been talking to Police Chief Lubbers about a trailer she wanted to rent and the defendant decided to help out Stella by talking to Lubbers about whether the trailer was still available. He stopped in at Lubbers’ house and asked Lubbers about the trailer. He also noticed some apartments in town for rent and wrote down the numbers for Stella. The defendant testified that he pulled in to the Taylor Mart parking lot and saw the victim’s truck. He decided to sit there for a few minutes to give Madden some time with Stella. He then walked to the door to tell Stella about the boat, the apartments, and the trailer for rent. He got to the door just as Madden was coming out. He decided to talk to Madden and went to Madden’s truck. The defendant testified that he told Madden about the trailer, but Madden informed him that Stella was not going any where. This confused the defendant, who had been under the impression from Stella that the defendant and Stella could still date. Stella then came out of the Taylor Mart upset and yelling, “Don’t talk to him. I don’t want you talking to him. This has nothing to do with him. This has nothing to do with sex. Just get away and leave.” The defendant testified that Stella began pushing and shoving him and that he stated, “Stella, this is killing me.” Stella then looked at him and said, “He’s got a gun.” Thinking that she meant Madden had a gun, the defendant turned around to see Madden leaning over towards the passenger side of the pickup. The defendant stated that he shoved Stella out of the way and saw Madden with something in his right hand. The defendant pulled out his gun and shot at Madden’s hand. The shot broke the window of the pickup. The defendant stated that the next thing he remembered was the click of the empty gun. He then remembered leaning against his boat and seeing Police Chief Lubbers. At the time, he did not realize that he had killed Madden. The defendant’s trial testimony differed in key respects from the statement given at the police station some time after the shooting, and after defendant had been properly warned of his Miranda rights. In his statement he did not tell the police that he thought Madden had a gun, did not say anything about Madden leaning forward in the front seat, did not say anything about Madden having anything in his hand, and did not tell the police that he heard Stella say anything about a gun. He did recall Stella saying something but could not remember what she said. The defendant admitted on cross-examination that he wrote a letter to Stella from jail which stated: “I loved you so much that I would have done anything for you; and I did, didn’t I?” The jury was instructed on second-degree murder and self defense, as well as the lesser included offense of voluntary manslaughter under a theory of unreasonable but honest belief that force was necessary. The defendant requested an additional instruction on voluntary manslaughter under a heat of passion theory but did not request any instructions on involuntary manslaughter. During jury deliberations, the jury sent a note to the court stating that they needed more information in regard to the instruction on second-degree murder. The trial court called the prosecutor, the defendant, and his attorney to discuss this request. Defense counsel objected to the giving of any additional instructions. However, outside the presence of the defendant and counsel, the court prepared a written instruction and sent it to the jury. The defendant raises four errors, all of which deal with either the trial court’s failure to give instructions or the manner in which instructions were given. The first two concern the defendant’s contention that the trial court was duty bound under the facts to instruct the jury on involuntary manslaughter. He claims that the evidence raises the question of whether his actions were intentional, thus, necessitating an instruction on unintentional lulling or involuntary manslaughter. He also claims that the evidence tends to establish that his actions were lawful in that he was acting to defend himself or another but that this may have been done unlawfully because of excessive force. The defendant also claims that the trial court should have instructed on voluntary manslaughter based upon evidence in the' record as to sudden quarrel. Finally, he claims that the manner in which the court gave a supplemental instruction to the juiy during its deliberations violated his constitutional right to be present at all critical stages of the trial. Discussion and Analysis Trial Court’s Duty to Instruct A trial court’s duty to instruct on a lesser included offense supported by the evidence exists whether or not the defendant requests the instruction at trial. State v. Sanders, 258 Kan. 409, 413, 904 P.2d 951 (1995). The duty arises when the evidence as a whole, viewed in the light most favorable to the defendant, would justify a jury verdict on the lesser included offense. State v. Moncla, 262 Kan. 58, 74, 936 P.2d 727 (1997). No such duty exists where the evidence as a whole, viewed in the light most favorable to the defendant could not reasonably support a jury verdict on the lesser included offense. See State v. Robinson, 261 Kan. 865, Syl. ¶ 7, 934 P.2d 38 (1997). Duty To Instruct In This. Case On Involuntary Manslaughter The defendant contends that the trial court should have instructed on involuntary manslaughter as set forth in K.S.A. 1997 Supp. 21-3404(a) and (c), which provides: “Involuntary manslaughter is the unintentional killing of a human being committed: (a) Recklessly; . . . (c) during the commission of a lawful act in an unlawful manner.” The defendant argues that his testimony alone required the trial court to instruct on involuntary manslaughter because the evidence suggested an unintentional but reckless killing and also suggested a lawful act of self defense done in an unlawful manner with excessive force. He bases his arguments upon State v. Gregory, 218 Kan. 180, 542 P.2d 1051 (1975), and State v. Clark, 218 Kan. 18, 542 P.2d 291 (1975); as well as State v. Seelke, 221 Kan. 672, 561 P.2d 869 (1977); State v. Childers, 217 Kan. 410, 536 P.2d 1349 (1973); State v. Mitchell, 23 Kan. App.6 2d 413, 932 P.2d 1012 (1997); and State v. Warren, 5 Kan. App. 2d 754, 624 P.2d 476 (1981). In each of the above cases, there was trial testimony by the defendant bearing upon the duty of the trial court to instruct. The State argues with equal force that State v. Staab, 230 Kan. 329, 635 P.2d 257 (1981); State v. [Cain] Dixon, 248 Kan. 776, 811 P.2d 1153 (1991); State v. Hickles, 261 Kan. 74, 929 P.2d 141 (1996); and State v. [Elbert] Dixon, 252 Kan. 39, 843 P.2d 182 (1992), support a conclusion that the trial evidence did not raise a duty of the trial court to instruct on the defendant’s theories of involuntary manslaughter. In each of the cases relied on by the State, there was also trial testimony by the defendant bearing upon the duty of the trial court to instruct. While results may differ in our past decisions, the test employed by this court has always depended upon the evidence in the particular case under consideration. In State v. Mason, 208 Kan. 39, 42, 490 P.2d 418 (1971), we said the duty of a trial court to instruct on included offenses “arises only where the omitted instructions are ‘clearly required by the evidence’ and ‘the jury might naturally and probably have convicted of a lesser degree or offense’ if they had been given. State v. Winters, 81 Kan. 414, 421, 105 Pac. 516 [1909].” See State v. James, 216 Kan. 235, 238-39, 531 P.2d 70 (1975); State v. Warbritton, 211 Kan. 506, 508, 506 P.2d 1152 (1973); State v. Masqua, 210 Kan. 419, 424, 502 P.2d 728 (1972). Before examining the evidence in this case it is helpful to consider the authorities submitted by the defendant and the State. Such an examination demonstrates an instruction on a lesser degree of the crime is not required in all cases where the defendant’s testimony raises the issue but that the question is dependent upon the evidence as a whole and whether the defendant might have been reasonably convicted of the lesser offense based upon that evidence. The Defendant’s Authority State v. Clark involved a charge of second-degree murder against a husband who, at home one evening, shot his wife three times. Evidence was introduced through others, including a psychologist familiar with the parties, that their relationship was volatile to the extreme, particularly on the subject of his children by a prior marriage. Several times they had pointed gúns at one another in anger. On the night of the shooting, the defendant and his wife had another argument about his children. She stated she was leaving. The defendant testified that he panicked when he saw his wife pointing a gurf at him, dove for his gun in the bedroom, and heard a loud explosion. He testified he blacked out and remembers nothing. When he realized that his wife had been wounded, he called the police and an ambulance. One of the points raised on appeal in Clark was the failure of the trial court to instruct on involuntary manslaughter, an unintentional murder. Under the evidence, this court reversed the defendant’s conviction of voluntary manslaughter based upon the failure of the court to instruct on involuntary manslaughter. We said: “Although we concede the evidence of an unintentional killing is weak and inconclusive, we believe defendant’s testimony alone was sufficient to raise a legitimate issue for proper consideration by the jury. As previously noted, defendant testified he was startled when he turned around and saw his wife pointing a gun at him and he ‘panicked.’ Some significance can be attached to the fact these parties had pointed guns at each other on several other occasions without fatal consequences. Although defendant admits shooting his wife, he claims no knowl edge of pointing the gun at her or of pulling the trigger. The only direct testimony as to what occurred prior to the shooting is necessarily limited to defendant’s account. If defendant is believed, the jury could find that he blacked out temporarily and was not fully aware of what he was doing. We believe the jury might possibly have inferred from defendant’s account of tire incident that he did not intend to kill his wife.” 218 Kan. at 22. While the evidence in Clark required an instruction on the lesser included offense, Clark does not stand for the general proposition that in every case where a defendant testifies concerning issues of the lesser included offenses a trial court must instruct. Clark did not so conclude but only indicates that in the circumstances of that case the defendant’s testimony was sufficient to raise a legitimate issue for proper consideration by the jury. One such circumstance was evidence that the pointing of guns had occurred in anger between the parties on prior occasions corroborating in some respects the defendant’s statement that his vafe, on this occasion, had pointed a gun at him. Another circumstance was the plausibility of the defendant’s testimony which raised an issue for jury resolution. Finally, the court noted that there were no witnesses other than the defendant. 218 Kan. at 22. The principle adopted in Clark is clearly stated: ‘We have emphasized that evidence of a lesser offense need not be strong or extensive, as long as the evidence presents circumstances from which such lesser offense might reasonably be inferred; and the unsupported testimony of the defendant alone, if tending to establish such inferior degree, is sufficient to require the court to so instruct. [Citations omitted.]” 218 Kan. at 21. In State v. Childers, the defendant shot and killed the victim while the victim was running from the defendant’s home. The shooting occurred late at night after the victim came near the window where the defendant was sleeping. A witness testified that he had been with the victim shortly before the victim went to the defendant’s home to tell the defendant not to swear at his child and a visiting friend of his child. The victim approached the window, said something, and started walking away when the defendant said something. He went back and asked what the defendant had said and the defendant started shooting. The defendant testified he had been awakened earlier in the evening by the children playing with his dogs, causing them to bark. He gave them candy to stay away and returned to bed. The victim approached his window, started an argument about the children and left. Just as the defendant was getting to sleep again, the victim returned and started another argument about the children. The defendant testified that it was dark and he could not see but grabbed his gun from his bureau drawer, sat up, and shot once through the screen window “not shooting at him [the victim] because I couldn’t see [too] well, it was dark, [but] to scare him out of my yard, make him get away, leave me alone.” 217 Kan. at 413. The angle of fire corroborated the defendant’s testimony. The court also noted that the defendant’s two statements to the police given on the night in question were “fundamentally consistent with his testimony at the trial.” 217 Kan. at 412. The jury was instructed on second-degree murder and voluntary manslaughter but not on involuntary manslaughter. We reversed the defendant’s conviction of second-degree murder because of the trial court’s failure to instruct on involuntary manslaughter. We concluded that the “record discloses sufficient evidence supporting the appellant’s theory that the killing was done unintentionally to require a jury instruction on involuntaiy manslaughter.” 217 Kan. at 416. Citing State v. Clark, 214 Kan. 293, 521 P.2d 298 (1974), we noted: “There it was said the accused has a right to have his theory of the case presented to the jury under appropriate instructions, where there is support in the evidence therefore, even though the evidence may be weak and not conclusive; that the testimony of the defendant alone, if tending to show a lesser degree of crime, is sufficient to require the court to so instruct. (See also, State v. Boyd, 216 Kan. 373, 532 P.2d 1064.)” Childers, 217 Kan. at 415. (Emphasis added.) State v. Seelke involved a wife who was convicted of voluntary manslaughter in the shotgun slaying of her drunken husband who had just savagely beaten her and threatened both her and her twin babies. Evidence was introduced involving the victim’s savage treatment of his wife after his frequent drinking binges. She testified that when she fired the shotgun she did not know where any of the shots went and wanted merely to prevent her husband from coming after her and killing her or her babies. Other than the defendant and the victim, there were no witnesses to the shooting which occurred in the parties’ home. This court reversed the defendant’s conviction of voluntary manslaughter and remanded for trial based in part on the failure of the trial court to instruct on involuntary manslaughter. 221 Kan. at 681. The court noted that the defendant’s husband weighed 200 lbs and was 6’2” tall. The defendant weighed 104 lbs. She was alone in the house with twin babies and her husband had been released from the psychiatric ward of St. Francis Hospital in Wichita the previous afternoon. It was undisputed that the victim was a mean drunk and brutally beat the defendant before the shooting occurred, a circumstance corroborated by medical evidence. The defendant had no car and no telephone, and the nearest neighbor was one-half mile away. She testified she did not want to kill, hurt, or shoot him, but also she did not want to die or have her babies die. After an extensive discussion involving a trial court’s duty to instruct on a lesser offense, this court concluded that the evidence required the trial court to give an instruction on involuntary manslaughter. In doing so this court stated the basic rule that, “[i]n order for such an instruction to be required some evidence must be presented tending to show that defendant should be convicted of the lesser included offense. If no evidence of the lesser offense is presented, an instruction on the lesser offense should not be given.” 221 Kan. at 675-76. In State v. Gregory, the defendant was charged with second-degree murder and convicted of involuntary manslaughter. Gregory was called outside by the victim after an argument occurred between the victim and another in a bar. Gregory testified that the victim came at him with an open knife and threatened to kill him. He was alone with the victim outside the bar and testified that he was deathly afraid of knives. He saw “that blade shining,” retreated to the tavern door, found he couldn’t open it, pulled his pistol, and shot once, “trying to stop him.” The victim’s knife was some 4 inches long and was found on the ground 10 to 15 feet from the steps where Gregory had been standing. It was closed. Gregory was the first to suggest calling the police and an ambulance, further negating an intent to kill. On appeal, Gregory argued, among other claims, that his objection to an instruction on involuntary manslaughter should have been sustained by the trial court because the evidence did not support such an instruction. This court concluded that the giving of an instruction on involuntary manslaughter was required under the evidence, but that the involuntary instruction given was improper requiring reversal. This court again noted that there was ample evidence to require submission to the jury on involuntary manslaughter: “[T]he jury might well have believed he [the defendant] did not intend to kill him but only, in his words, To stop him.’ ” 218 Kan. at 184. We stated: “We have many times held that an instruction on an included offense is not proper if from the evidence the jury could not reasonably convict of the lesser offense.” 218 Kan. at 183. Recently, the Kansas Court of Appeals reversed a defendant’s conviction in part on the basis that the trial court failed to give an instruction on involuntary manslaughter. In State v. Mitchell, the defendant claimed that the victim had pulled a gun on him and he was afraid for his life, so he pulled out his own gun, closed his eyes, and began shooting. Based upon the evidence, the Court of Appeals concluded that a jury could have concluded that the victim was the initial aggressor and the defendant acted in self-defense but with excessive force requiring an involuntary manslaughter instruction. See 23 Kan. App. 2d at 416-17. The Court of Appeals recounted the basic principles followed in Kansas: “If there is substantial evidence upon which the defendant might reasonably have been convicted of a lesser offense, an instruction on the lesser included offense is required. State v. Shannon, 258 Kan. 425, 427, 905 P.2d 649 (1995). Evidence supporting the instruction of a lesser included offense maybe presented either by the defendant or by the State. State v. Coleman, 253 Kan. 335, 354, 856 P.2d 121 (1993). Even the unsupported testimony of the defendant alone, if tending to establish such lesser offense, is sufficient to require the district court to so instruct. State v. Harmon, 254 Kan. 87, Syl. ¶ 1, 865 P.2d 1011 (1993). The failure to give a lesser included offense instruction on involuntary manslaughter when the evidence supports the request is reversible error. See State v. Warren, 5 Kan. App. 2d 754, 758, 624 P.2d 476, rev. denied 229 Kan. 671 (1981).” 23 Kan. App. 2d at 416. State’s Authority In State v. Staab, 230 Kan. 329, 635 P.2d 257 (1981), the defendant shot his ex-lover’s new husband on the husband’s porch after barging into the house. He then drove home and called his ex-lover, telling her that he had done what he said he would do. He contended at trial that he had committed a lawful act of self-defense in an unlawful manner and did not intend to kill the victim. However, this court reviewed all the facts, including the defendant’s jealousy and dislike of the victim, the defendant’s going to his house and arming himself before calling on the victim late at night, the defendant’s walking into the victim’s house uninvited, the defendant’s shooting the unarmed victim twice, with one shot in the back, and the defendant’s gloating afterward on the phone, and concluded that the defendant’s bare testimony did not rise to the level of substantial evidence that the killing was unintentional. 230 Kan. at 340. This court noted that the victim was dressed in cut-off blue jeans with no shirt, obviously unarmed. The defendant initially claimed the victim had reached for something under his shirt or vest. At trial, his testimony changed, saying the victim reached across his body for something and he shot him in self-defense. In reaching the conclusion that the trial court did not err in failing to give an instruction of the lesser included offense of involuntary manslaughter, this court restated the general rule that “the duty to instruct on lesser included crimes arises only when there is evidence under which the defendant might have reasonably been convicted of the lesser offense. [Citations omitted.]” 230 Kan. at 339. We stated that the duty to instruct on lesser crimes is designed to give the defendant the right to have the court instruct the jury in the law applicable to his contention. We noted that to refuse so to instruct the jury would be to invade its province in the trial of a case. 230 Kan. at 339. Although we again noted that the instruction should be given even if the evidence is weak and inconclusive!, or consists solely of the defendant’s testimony, we made it clear that ultimately the duty depends upon the evidence. In Staab, after examining the evidence to determine whether such a duty existed, this court concluded: “The defendant’s bare statement, unsupported by other evidence, is the only possible evidence of unintentional killing or self-defense.” We stated: “When the defendant’s statement is considered against the volume of uncontroverted, competent evidence of defendant’s jealousy and dislike of the victim; his going to his house and obtaining a loaded pistol before calling on the victim late at night; his walking into the victim’s house uninvited; his shooting the obviously unarmed victim twice, with one of the shots entering the victim’s back; along with defendant’s gloating phone call to ‘tell Marge I did what I said I’d do,’ it renders his bare statement insubstantial. We hold the defendant’s theory of unintentional killing and self-defense is not supported by substantial evidence.” 230 Kan. at 340. The decision in Staab was cited by this court in State v. [Cain] Dixon, 248 Kan. 776, 811 P.2d 1153 (1991). In Dixon, the defendant, upset because his estranged wife was seeing another man, obtained a shotgun, forced his way into his wife’s apartment, and shot her three times in the legs, resulting in her later death in the hospital from hemorrhagic shock. He claimed at trial that he was upset and had simply “lost his wits” and shot his wife in the legs with no intent to cause her harm or death, and, therefore, should have been entitled to an involuntary manslaughter instruction. 248 Kan. at 785-86. We found his testimony insubstantial when compared to the evidence that he had made threats to kill his estranged wife, obtained a shotgun on the day of the killing, forced his way into the apartment, and shot an unarmed victim three times as she pled for her life. Not unlike the decision in Staab, we concluded that “[i]n light of the overwhelming evidence presented at trial, we find Dixon’s sole statement denying intent to kill or harm Bonnie insufficient to support a finding of involuntary manslaughter. Thus, the trial court did not err in refusing to give the requested jury instruction.” 248 Kan. at 787. In State v. [Elbert] Dixon, 252 Kan. 39, 843 P.2d 182 (1992), we reversed on the basis that the trial court failed to give an instruction on attempted second-degree murder where the defend ant was charged and convicted of attempted first-degree murder. We noted that “[i]n the present case, even though Dixon was the source of most, if not all, the evidence tending to show' the absence of deliberation or premeditation, that evidence does not consist solely of a self-serving declaration that his action lacked those qualities.” In his taped statement Dixon said, “I was scared at first — I didn’t want to do it.” He also said that he pointed the gun at her and fired. Thus, there is evidence that he fired on impulse rather than following deliberation.” 252 Kan. at 44-45. We noted that “the issue is not whether the evidence is strong but whether Dixon might reasonably have been convicted of the lesser offense of attempted second-degree murder, the attempt intentionally to kill Bell without premeditation or deliberation.” 252 Kan. at 45. We also discussed the applicable standard of review' stating: “Because reasonableness is an element of this test, there is some weighing of the evidence which occurs. A finding of sufficient evidence tending to show the lesser degree of the crime triggers the duty. [Citation omitted.] The weighing of evidence, however, is not a retrial of the case.” 252 Kan. at 43. More recently, in State v. Hickles, 261 Kan. 74, 929 P.2d 141 (1996), this court found that a defendant’s testimony that a stabbing of a police officer “just happened” as they fought for possession of a knife was insufficient to support the giving of an involuntary manslaughter instruction. We found that the evidence was insubstantial when considered along with the fact that the defendant was angiy at the victim and had threatened to kill him, stabbed the victim 11 to 13 times, and was seen thrusting his knife into the victim and then kicking the victim in the chest and head. 261 Kan. at 84. We said: “The question is not whether, in the mind of the court, the evidence as a whole excludes the idea that the defendant is guilty of a lesser degree of tire offense charged, but whether there is any substantial evidence tending to prove a lesser degree of the offense. If there is, then the question of such degree should be submitted to the jury.” 261 Kan. at 83. The above authorities submitted by the defendant and the State express the same rule. The duty of a trial court to instruct on a lesser included offense arises only where there is evidence upon which the accused might reasonably be convicted of the lesser offense. Because the test is based upon reasonableness, some weighing of the evidence occurs but it is not a retrial of the case. State v. [Elbert] Dixon, 252 Kan. at 43. The appellate court, based upon a review of all the evidence read in a light favorable to the defendant, must determine whether from the evidence the jury could reasonably convict of the lesser offense. The evidence maybe weak and inconclusive and may be based upon the testimony of the defendant alone, if tending to show a lesser degree of crime. ■ It is not the function of an appellate court to determine whether the factual possibilities mentioned at trial should prevail. Rather its function is to exercise judicial judgment as to whether there was sufficient evidence in the record to necessitate an instruction of the lesser offense. Such a determination is made from the evidence as a whole and while in a given case the defendant’s testimony alone may be sufficient to require such an instruction, it may also fall short of raising the duty to instruct. The'test is a factual one based upon the evidence as a whole. Examination of the Evidence on Involuntary Manslaughter The defendant contends , that there was sufficient evidence in the record to necessitáte ari instruction of the lesser offense of an unintentional but reckless killing. He also argues there was sufficient evidence to necessitate an instruction on the theory that he engaged in the lawful act of self-defense but with excessive force. See K.S.A. 1998 Supp.- 21-3404(c); State v. Myers, 245 Kan. 471, 474, 781 P.2d 700 (1989). He relies upon his trial testimony and claims that like the defendant in Gregory, 218 Kan. 180, he fired at the victim to stop him from using what he believed to be a weapon and did not remember the remaining shots. Unlike Gregory in which only one shot was fired to stop the victim, here there was substantial evidence concerning defendant’s" killing of the victim. His assertion that he fired the first shot in self-defense and then blacked out and did not remember the other four shots must be considered along with the other evidence. Other than the defendant’s statement, there is absolutely no evidence from which a jury might conclude that the killing was un intentional and that he engaged in self-defense with excessive force. The excessive force rationale is premised on the basis that a person is justified in the use of force against an aggressor when and to the extent it appears to the person and he or she reasonably believes that such conduct is necessary to defend himself or herself or another against such aggressor’s imminent use of unlawful force. See Myers, 245 Kan. at 474. The defendant testified that he saw the victim come up with a shiny object in his hand which the defendant assumed to be a gun. We again point out that defendant did not mention this critical fact to the police in his statement given a short time after the shooting. There is no evidence whatsoever that the victim threatened the defendant with any harm outside of a movement which the defendant interpreted as an attempt to use a firearm. The defendant testified that the victim was not physically aggressive. The defendant testified that Stella looked him in the eyes and stated that the victim had a gun. This important fact was omitted from his pretrial statement where the defendant stated that he recalled Stella saying something but forgot what it was. The deféndant testified that he saw the victim leaning forward in his truck with something shiny in his hand. Again, this fact is absent from his earlier statement to the police. The evidence from a disabled police officer who witnessed the shooting is that the victim had his hands on the steering wheel of his truck. Unlike the situation in Childers, the defendant’s earlier statement to police shortly after the shooting does not corroborate his trial testimony. We do not retry the case but because the necessity to give an instruction is based upon reasonableness, some weighing of the evidence is required. State v. [Elbert] Dixon, 252 Kan. at 43. The similarity between this case and State v. Staab, 230 Kan. 329, is striking. Both cases involved jealousy and a dislike for the victims who the defendants perceived were interfering with an important relationship. In the instant case, the defendant’s son testified that the defendant had to restrain himself from shooting the victim the day before he killed the victim. In. both cases, the defendants armed themselves for the encounter with the victim. In both instances, the victim was not the aggressor. The evidence in the in stant case establishes that the victim was attempting to leave in his truck when the defendant fired. In both cases there were witnesses whose testimony contradicted the defendants’ testimony on their claims of self defense. In both cases, the victims were unarmed and shot multiple times at close range. Finally, in both cases, the defendants contacted their girlfriends sometime later and told them, in somewhat of a gloating manner, that they did it for them. Like Staab, the defendant claims that involuntary manslaughter instructions should have been given on his theory of unintentional killing and on the theory that the shooting was a lawful act done in an unlawful manner. The conclusion we reached in Staab applies with equal force in this case. “Here, however, there was no substantial evidence of either element of involuntary manslaughter. The defendant’s bare statement, unsupported by other evidence, is the only possible evidence of unintentional killing or self-defense. When the defendant’s statement is considered against the volume of uncontroverted, competent evidence of defendant’s jealousy and dislike of the victim; his going to his house and obtaining a loaded pistol before calling on the victim late at night; his walking into the victim’s house uninvited; his shooting the obviously unarmed victim twice, with one of the shots entering the victim’s back; along with defendant’s gloating phone call to ‘tell Marge I did what I said I'd do,’ it renders his bare statement insubstantial. We hold the defendant’s theory of unintentional killing and self-defense is not supported by substantial evidence.” 230 Kan. at 340. In the instant case when the defendant’s bare statement, unsupported by other evidence, and not corroborated by the defendant’s prior statement to police, is considered against the volume of evidence regarding his jealousy and dislike of the victim, his previous threatening activity and statements toward the victim, the nature of the shooting, and his letter to Stella afterwards, it is clear that no jury could reasonably have convicted the defendant of reckless involuntary manslaughter. Further, there is absolutely no evidence which would allow a reasonable jury to find the defendant guilty of involuntary manslaughter on the theory that the defendant engaged in the lawful act of self-defense with excessive force. The only testimony of the defendant regarding self defense was that he thought the victim had a gun. If the juiy believed this testimony, then the defendant’s use of force in shooting the victim would not have been excessive. Because the evidence would not have allowed the defendant to be reasonably convicted of involuntary manslaughter under either theory, the trial court did not err in failing to give an instruction on involuntary manslaughter. Instruction On Sudden Quarrel Or Heat Of Passion The defendant also argues that the trial court erred in failing to give an instruction on the lesser included offense of voluntary manslaughter based on sudden quarrel or heat of passion. He argues that the evidence supports lire giving of such an instruction. The defendant included such an instruction in his proposed instructions at trial. The defendant’s contention is without merit. While there is some evidence in this case that the defendant was under stress as the result of his breakup with Stella, we have held that an intentional killing committed in the heat of passion must result from severe provocation. See State v. Follin, 263 Kan. 28, 33, 947 P.2d 8 (1997). The test for whether severe provocation exists is objective, and the provocation must be sufficient to cause an ordinary person to lose control of his or her actions or reason. 263 Kan. at 34. There is no evidence of provocation which rises to the level required in Follin. The defendant’s own testimony indicated that the victim was not physically aggressive. While the defendant correctly notes that a witness who viewed the incident from inside the Taylor Mart testified that the defendant and the victim struggled, he fails to acknowledge that the witness stated that the defendant instigated the struggle by reaching into the truck where the victim was sitting. There is no evidence that the victim in this case provoked the defendant. Although there is some evidence that Stella pushed or struck the defendant, there is no evidence from which a reasonable person could conclude that it was sufficient to cause an ordinary person to lose control. The jury could not reasonably have convicted the defendant of voluntary manslaughter under a sudden quarrel or heat of passion theory. There was no duty to instruct on this theory. See State v. Robinson, 261 Kan. 865, Syl. ¶ 7, 934 P.2d 38 (1997). Supplemental Instructions Given During Deliberation The defendant’s final contention is that the trial court erred in giving the jury an additional instruction outside the presence of the defendant without securing a waiver from the defendant. The jury’s question in this case centered on Instruction 3 regarding voluntary manslaughter. That instruction stated: “The defendant is charged with the crime of murder in the second degree. The defendant pleads not guilty. “To establish this charge, each of the following claims must be proved: “1. That the defendant intentionally killed Paul G. Madden; and “2. That it was not done upon an unreasonable but honest belief that circumstances existed that justified deadly force in defense of a person; and “3. That this act occurred on or about the 27th [day of] February, 1997, in Sedgwick County, Kansas.” During its deliberations, the jury sent the following note to the judge during deliberations: “We need more information in regards to instruction 3, statement 2.” The trial court, after consulting with both attorneys and after the defendant’s attorney had objected to the giving of any supplemental instruction to the jury, prepared the following written response that was delivered to the jury: “Paragraph 2 of Instruction No. 3 is the opposite of Paragraph 2 of Instruction No. 5. If you find that the defendant intentionally killed Paul G. Madden with an unreasonable but honest belief that circumstances existed that justified deadly force in defense of a person, this constitutes voluntary manslaughter. If you find that the defendant intentionally killed Paul G. Madden and it was not done with an unreasonable but honest belief that circumstances existed that justified deadly force in defense of a person, this constitutes murder in the second degree. “Please consider this answer together with all of the other instructions the court has given you. If you have any further questions, please advise the bailiff.” The correct procedure for a trial court to follow when answering a question from a deliberating jury is set forth in K.S.A. 22-3420(3). State v. Dunnan, 223 Kan. 428, 432, 573 P.2d 1068 (1978). K.S.A. 22-3420(3) requires that once the jury has begun deliberations, any questions from the jury concerning the law or evidence pertaining to the case must be answered in open court in the defendant’s presence, unless the defendant is absent voluntarily. Crease v. State, 252 Kan. 326, 333, 845 P.2d 27 (1992). K.S.A. 1998 Supp. 22-3405, as well as the Sixth Amendment’s Confrontation Clause and the Due Process Clause of the Fourteenth Amendment, require the defendant’s presence at every critical stage of a trial. See Crease v. State, 252 Kan. at 333. See also State v. Lovely, 237 Kan. 838, 844, 703 P.2d 828 (1985). This includes all times when the jury is present in the courtroom and whenever the trial court communicates with the jury. State v. Perkins, 248 Kan. 760, 769, 811 P.2d 1142 (1991). Because the record does not disclose that the defendant was present during this time period or that he waived his right to be present, we conclude that the defendant’s constitutional right to be present was violated and that K.S.A. 22-3420(3) was not followed. However, this error is subject to the harmless error rule. In determining whether the denial of a defendant’s right to be present at all critical stages of the trial is reversible error, this court has applied the same harmless error test as for other constitutional errors. See State v. High, 260 Kan. 480, 485-86, 922 P.2d 430 (1996); State v. Bowser, 252 Kan. 582, 587-88, 847 P.2d 1231 (1993); Crease v. State, 252 Kan. at 334. Under this test: “ ‘An error of constitutional magnitude is serious and may not be held to be harmless unless the appellate court is willing to declare a belief that it was harmless beyond a reasonable doubt. [Citations omitted.] Thus, before we may declare the error harmless, we must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. [Citation omitted.]’ [Citation omitted.]” Crease v. State, 252 Kan. at 334. The trial court’s written response in this case accurately stated the law. It placed no undue emphasis on either outcome. Although the defendant contends that his presence was vital to verify that all the jurors shared the information and understood the court’s response, we have no hesitancy in concluding that the error had little, if any, likelihood of having changed the result of the trial. Affirmed.	[ -48, 104, -36, -113, 25, 98, 42, 58, 51, -14, -25, -13, 47, -61, 9, 107, -86, 61, 85, 105, -75, -73, 7, 96, -14, -5, -110, -41, -77, 89, -10, -33, 12, 98, -114, 85, 102, 10, -27, 94, -124, -124, -7, -32, 90, -122, 36, 122, 118, 7, 53, 12, -77, 42, 22, -49, 105, 40, 74, -69, 80, -72, -63, -123, -19, 16, -77, -90, -65, 7, 90, 27, -103, 61, 8, -88, 115, -106, -126, 116, 109, -83, 12, 100, 99, 32, -51, -52, 104, -119, 47, 94, -99, -89, -103, 72, 65, 36, -105, -99, 124, 20, -66, -8, -43, 94, 95, 108, -127, -42, -74, -111, 77, 56, -46, -70, -5, -89, 48, 113, -49, -94, 92, 69, 124, -101, -101, -9 ]
The opinion of the court was delivered by Lockett, J.: The defendant appeals, raising 11 issues which include his certification as an adult; trial errors regarding his convictions of premeditated first-degree murder, aggravated kidnapping, conspiracy to commit murder, conspiracy to commit aggravated kidnapping, aggravated robbery, and aggravated battery; and the imposition of the 40-year mandatory prison sentence. On February 3, 1996, a group of young people met to party at a residence in Garden City, Kansas. The group included several members of a local gang, the Young Crowd (Y.C.) and others who were not gang members. The defendant, Adam Valdez, age 17, was a Y.C. member. The victim, Juan Ayon, age 33, was not a Y.C. gang member. During the party, an argument developed between a Y.C. member and Ayon. When the argument became physical, the Y.C. members converged on Ayon and started beating him. The fray moved outside to the front porch. The conflict ended with Ayon laying with his head hanging over the edge of the front porch bleeding profusely from the face and head and unable to defend himself while the Y.C. members hit and kicked him. The young man who resided at the house stopped the beating by bringing his pit bulldog to the porch. The crowd went into the residence. Several individuals, including Richard Garcia, the leader of the Y.C.’s, Jose Avalos, and Valdez met in the bathroom for a conversation concerning the victim, Ayon. Richard Garcia ordered Valdez and Avalos to “go take care of him.” Valdez, Avalos, and Ayon left the party in Ayon’s car at about 4:30 a.m on February 4, 1996. The injured Ayon was lying on the back seat of his car. At 5:30 a.m. on February 4, 1996, Ayon’s abandoned car was found by police on Taylor street. The car had been vandalized and was soiled with copious amounts of blood. Shoe impressions in the snow around the car and in the vicinity indicated that two individuals exited the car, wandered through the neighborhood, and were picked up by another car a short distance from the abandoned car. Later that day, Ayon’s body was found in an isolated field outside Garden City. Ayon’s body appeared to have been run over several times by a car. The police investigation uncovered circumstantial and forensic evidence that led to the arrest and indictment of Valdez, Avalos, and others. The statements of Kamber Snyder, a guest at the part}' on Chesterfield Street, and Jose Avalos were of primary importance in narrowing the focus of the police investigation to Jose Avalos and Adam Valdez. Kamber Snyder told police that a couple days after the party, she confronted Avalos and Valdez regarding their involvement in the killing of Juan Ayon. Both admitted to Kamber Snyder that they had killed Juan Ayon. In an interview with police on February 20, 1996, Jose Avalos admitted that he and Valdez had killed Ayon. Avalos stated that following the fight on the front porch, Avalos, Valdez, Richard Garcia, the leader of the Y.C. gang, and others, met in the bathroom. The defendant told Richard Garcia that they had to take care of Ayon. Garcia replied, “It’s up to you, you take care of him then.” Avalos, who was told to accompany Valdez, stated that he did not want to go with Valdez. Richard Garcia informed Avalos that if he did not go, he would be “jumped out” of the gang and would not deserve to live. Avalos told police that Valdez drove Ayon’s car to a sandpit area where Valdez pulled Ayon from the car. When Valdez returned to the car, he drove in circles, running over Ayon numerous times. Avalos stated he felt the car going over the body of Ayon and heard the sound of the car hitting tall weeds as it drove over the terrain. Valdez then drove, to Taylor Street where he abandoned the car. Valdez climbed on the hood and kicked in the windshield. Because Valdez’ blue Dickies coat, black jeans, and black Nike tennis shoes were soiled with blood, they stopped at Valdez’ home so Valdez could clean up. Prior to Valdez’ trial, Jose Avalos pled guilty to felony murder. As agreed, the State dropped several charges against Avalos, including premeditated murder. After his arrest, Valdez was certified to stand trial as an adult. The case was tried to a jury. Valdez was found guilty of first-degree premeditated murder, aggravated kidnapping, conspiracy to commit murder in the first degree, conspiracy to commit aggravated kidnapping, aggravated robbery, and aggravated battery. Prior to Valdez’ sentencing, the State moved for imposition of the mandatory 40-year sentence. The trial judge granted the motion. Valdez was sentenced to life imprisonment (hard 40 sentence) for first-degree premeditated murder, 97 months for aggravated kidnapping (consecutive to murder sentence), 73 months for conspiracy to commit murder (concurrent with kidnapping sentence), 49 months for conspiracy to commit aggravated kidnapping (concurrent with conspiracy to commit murder sentence), 49 months for aggravated robbery (consecutive to previous sentences), and 43 months for aggravated battery (consecutive to previous sentences). Valdez appealed directly to the Supreme Court pursuant to K.S.A. 22-3601(b)(1). CERTIFICATION AS AN ADULT The standard for an appellate court to evaluate whether the district court’s decision to certify a juvenile as an adult was proper is whether the decision as a whole is supported by substantial competent evidence. The insufficiency of the evidence pertaining to one or more of the factors listed is not determinative. State v. McIntyre, 259 Kan. 488, 498, 912 P.2d 156 (1996). In 1996, K.S.A. 38-1636(a)(2) provided that the court may authorize the prosecution of a respondent 16 or more years of age as an adult. K.S.A. 38-1636(e) required consideration of the following eight factors: “(e) . . . (1) The seriousness of the alleged offense and whetherthe protection of the community requires prosecution as an adult; (2) whetherthe alleged offense was committed in an aggressive, violent, premeditated or willful manner; (3) whether the offense was against a person or against property, greater weight being given to offenses against persons, especially if personal injury resulted; (4) the number of alleged offenses unadjudicated and pending against the respondent; (5) the previous history of the respondent, including whether the respondent had been adjudicated a delinquent or miscreant under the Kansas juvenile code or a juvenile offender under this code and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence; (6) the sophistication or maturity of the respondent as determined by consideration of the respondent’s home, environment, emotional attitude, pattern of living or desire to be treated as an adult; (7) whether there are facilities or programs available to the court which are likely to rehabilitate the respondent prior to the expiration of the court’s jurisdiction under this code; and (8) whether the interests of the respondent or of the community would be better served by criminal prosecution.” K.S.A. 38-1636(b) and (g) provided that the motion requesting that the court authorize prosecution of a juvenile as an adult may also contain a request by the prosecuting attorney to allow the introduction of evidence of the offenses alleged in the complaint and a request that, on hearing the motion and authorizing prosecution as an adult, the court make the findings required in a preliminaiy examination and the finding that there is no necessity for further preliminary examination. Therefore, the hearing where the court authorizes prosecution of the juvenile as an adult may also serve as the preliminary examination. In this case, the certification hearing and the preliminary examination were conducted at the same time. The evidence presented by the State was to determine Valdez’ status as a juvenile or if he should be prosecuted as an adult for the offense and to determine if there was probable cause to bind him over for arraignment. The evidence pertaining to certification as an adult included testimony by the crime investigation officers, friends of the defendant, the defendant’s mother, school officials, and police officers. We will review that evidence. Detective Morgan Wright of the Garden City police department testified the evidence he obtained at the crime scenes strongly supported an inference that Ayon had been run over multiple times with his own car. Blood was found on the car’s passenger side headlight, the driver’s side door and fender, the side quarter panel,. the tires, the gas tank, the underside of the car, the side mirror, the right side of the windshield, across the cowling, and around the area of the catalytic converter. Detective Goeman of the Finney County Sheriff s Office photographed Ayon’s body in the morgue prior to and during the au topsy. Goeman testified that the clothing and body of Juan Ayon were soiled with black and blue tire marks. He stated that in his law enforcement career of 25 years, he had investigated 20-25 homicides. In Goemaris opinion, the murder of Juan Ayon was a very brutal crime. Kamber Snyder, age 15, was at the party where the initial beating of the victim occurred. Snyder testified that she saw Valdez and Avalos beating and kicking Juan Ayon on the porch of the residence. After the beating, Ayon was bleeding profusely from his face. Carlos Valencia, age 20, testified on behalf of the State in hopes of favorably influencing plea negotiations in a pending criminal case against him. He stated that he and Adam Valdez were very good friends. A few days after the murder, Valdez told Valencia that he, referring to Valdez, and Jose Avalos had driven Ayon to a location on Burnside Drive where he had repeatedly run over Ayon with Ayoris car. Dr. Bruce Melin, M.D., the pathologist who performed the autopsy of Juan Ayon, testified that Ayoris injuries were inflicted during two time frames: Ayon sustained head injuries at least one-half hour prior to his death and later sustained massive injuries to his trunk and extremities close to or at the time of his death. Ayoris head wounds were described as disfiguring and would have necessitated medical attention. The head wounds were not life-threatening injuries. The cause of Ayoris death was massive blunt trauma to his trunk with exsanguination (massive blood loss). The pattern of injuries indicated that Ayon had been run over by a car more than once from different directions. Maria Garcia, Valdez’ stepmother, testified that in the 2 years preceding the murder, Valdez had gone to school for only 2 weeks. He had quit school prior to the murder. Although Valdez lived at home with Maria and his father, he spent much of his time at the home of his older brother, Walter. According to police gang tracking reports, Valdez’ brother, Walter, age 20, was also a member of the Y.C. Jonelle Erskin, who was in charge of the records department in Valdez’ school district, testified that the last time Valdez attended school regularly was the sixth grade in 1991-92. Valdez re-enrolled in 1994. His attendance was sporadic, and he was dropped from the school rolls for truancy in December 1994. Connie Stucky, a youth officer for the middle school, testified that she had notified Valdez’ parents regarding his truancy problem, but neither parent had responded. Detective William Relph, the Garden City Police Department’s expert on gang culture and issues, testified that the Y.C. gang had been active in Garden City for approximately 4 years. Detective Relph stated that his first contact with Valdez as a gang member was in 1995. He confirmed that most of the individuals at the party on Chesterfield street were gang members or associates. Detective Relph testified that, according to his records, Valdez had been involved in violent gang activity on at least five prior occasions. Hyong Perkins, patrol officer with the Garden City Police Department, testified that he had had contact with Valdez in the past where Valdez had exhibited disrespect and contempt for the authority of the police department. On one occasion, Perkins had stopped Valdez to inform Valdez that a detective wanted an interview with him. Valdez had responded by throwing gang signs and stating, “Fuck the police; you motherfucking pigs; you’ll get yours because we’re Y.C.” Valdez’ testimony was limited to the certification issue. Valdez stated that since his incarceration, he had experienced no problems in the system. He had not been written up. He had been subject to a lock down when the cell population was punished for breaking up brooms and “everything like that.” Even though he had been housed with adults and rival gang members, he had not gotten into any fights. Regarding the jailers, Valdez stated, “They haven’t done nothing to me, nothing like that, so I’m going to respect 'em.” Valdez testified that he got “jumped out” of the Y.C. gang in November, prior to the murder in Februaiy. Valdez’ first complaint is that the State was allowed to present witnesses, Officer Perkins, Jonelle Erskin, and Connie Stucky, who had not been endorsed on the complaint prior to the combined hearing. Although the witnesses Valdez complains of testified as to certification for prosecution as an adult, they did not later testify at his criminal trial. Was it error for the trial court to allow the testimony of witnesses for the certification determination who had not been previously endorsed on the complaint as witnesses? An action under the Kansas Juvenile Offenders Code, K.S.A. 38-1601 et seq., is commenced by the filing of a verified complaint. K.S.A. 38-1622(a)(5) provides for the endorsement of witnesses in a juvenile offender action: “The prosecuting attorney shall endorse the names of all witnesses known to the attorney upon the complaint at the time of filing. The prosecuting attorney may endorse on the complaint the names of other witnesses that afterward become known to the attorney, at such times as the court prescribes by rule or otherwise.” The purpose of the endorsement of witnesses requirement in a criminal action and a juvenile offender action is to prevent surprise to the individual and to allow that person the opportunity to interview and examine the prosecution witnesses prior to trial or the adjudication hearing. State v. Timley, 255 Kan. 286, 304, 875 P.2d 242 (1994) (quoting State v. Green, 252 Kan. 548, 553, 847 P.2d 1208 [1993]). K.S.A. 22-3201(g) of the Kansas Code of Criminal Procedure also requires the prosecuting attorney to endorse the names of all witnesses known to the prosecuting attorney upon the complaint, information and indictment at the time of filing. The prosecuting attorney is allowed to endorse the names of other witnesses that may afterward become known to the prosecuting attorney. The State was required to endorse all its witnesses prior to Valdez’ certification/preliminaiy hearing. However, the issue of the endorsement was raised by Valdez at the hearing, and the court allowed the previously unendorsed witnesses to testify. A trial court’s order permitting a late endorsement of a witness is not to be overturned absent an abuse of discretion. The test is whether the defendant’s rights have been prejudiced. Appellate courts are not to condone surprise caused by the intentional withholding of the name of a witness as a part of the prosecution’s trial strategy. The purpose of the endorsement requirement is to prevent surprise to the accused and to give him or her an opportunity to interview'' and examine the witnesses for the prosecution in ad vanee of trial. The trial court commits reversible error in allowing a late endorsement when surprise prevents a fair preparation of the accused’s defense. State v. Bryant, 227 Kan. 385, 387, 607 P.2d 66 (1980). The district judge has broad discretionary power to allow the late endorsement of a witness under K.S.A. 22-3201(g) and K.S.A. 38-1622(a)(5). The district judge did not abuse his discretion in permitting a late endorsement. Valdez next complains that the State presented no evidence regarding factor (7) in K.S.A. 38-1636(e), the facilities and programs available in the juvenile system to rehabilitate the juvenile. The statute does not require evidence supporting all eight factors, only that those factors be considered by the court. State v. Irvin, 16 Kan. App. 2d 214, 220, 821 P.2d 1019 (1991). Therefore, there was no error in failing to present evidence regarding this factor. Valdez’ primary contention regarding the certification hearing is that the trial court did not consider all of the factors listed in K.S.A. 38-1636(e) for determining the certification question. The record shows that Valdez’ argument is without merit. The standard for evaluating whether the decision to certify a juvenile as an adult was proper is whether the decision as a whole is supported by substantial competent evidence. It is not error for a court to give greater weight to some factors than it gives to others. The trial court is not required to give the factors listed in K.S.A. 38-1636(e) equal weight. See State v. Irvin, 16 Kan. App. 2d 214, Syl. ¶ 2. Before making her decision, the judge announced that she would consider the criteria listed in K.S.A. 38-1636(e). Although the judge did not make formal findings as to each factor, she clearly gave consideration to each one and reviewed the evidence presented. When rendering her decision, the district judge stated that after considering, in particular, Valdez’ lack of respect for authority, lack of school attendance, and lack of a stable home, there was little or nothing in favor of retaining juvenile jurisdiction over Valdez. The judge, therefore, determined that Valdez should be certified as an adult for trial. The record is replete with evidence that supports the finding of the district court. There was no error in certifying Valdez as an adult. MOTION TO ACQUIT Although Valdez frames this issue to include the sufficiency of the evidence to convict him of all the charges in the amended information, he briefed arguments only as to the charges of aggravated robbery, aggravated kidnapping, and conspiracy to commit aggravated kidnapping. An issue which is not briefed is deemed abandoned. State v. Patterson, 262 Kan. 481, 483, 939 P.2d 909 (1997). Therefore, this court will consider the issue of sufficiency of the evidence only as it applies to the convictions of aggravated robbery, aggravated kidnapping, and conspiracy to commit aggravated kidnapping. In ruling on a motion for judgment of acquittal, if a trial judge concludes from the evidence that a reasonable mind might fairly decide a defendant is guilty beyond a reasonable doubt, the motion must be denied and the case must go to the jury. On appeal, the reviewing court must decide whether a rational factfinder could have found the accused guilty without a reasonable doubt. State v. Schlein, 253 Kan. 205, 207-08, 854 P.2d 296 (1993). AGGRAVATED ROBBERY The aggravated robbery charge was based on the taking of Ayon’s car and certain belongings in the car. There was testimony that prior to the altercation Ayon willingly gave his car keys to Jose Avalos so that Avalos could use the car and return it to Ayon the following day. Because Avalos peaceably obtained the keys to Ayon’s car prior to the fight, Avalos asserts that he also had lawful possession of the car long before taking the car to transport and kill Ayon. Valdez concludes that because Avalos had lawful possession of the car at the time the car was used to kill Ayon, there was no aggravated robbery. The trial court reasoned that Ayon did not loan the car to Avalos to kill him or to vandalize and abandon the car. The court found Avalos’ use of the car was outside the intent of the loan; therefore, a conviction for aggravated robbery was not precluded. Aggravated robbery is a robbery committed by a person who is armed with a dangerous weapon or who inflicts bodily harm on any person in the course of the robbery. K.S.A. 21-3427. A robbery is the taking of property from the person or presence of another by force or by threat of bodily harm to any person. K.S.A. 21-3426. To constitute the crime of robbery, it is necessary that the violence to the owner of property must either precede or be contemporaneous with the taking of the property. Robbery is not committed where the thief has gained peaceable possession of the property and uses no violence except to resist arrest or to effect escape. State v. Hays, 256 Kan. 48, 64, 883 P.2d 1093 (1994). We have previously observed that a thief takes possession of the property of another when he exercises dominion and control over the property. Ayon had possession of the keys, but not the car. If the possession of the taker is imperfect in any degree, or his control of the thing desired is qualified by any circumstance, however slight, the taking of possession is incomplete. State v. Dean, 250 Kan. 257, Syl. ¶ 3, 824 P.2d 978 (1992). “At common law, robbery consists of larceny plus two aggravating circumstances. A larceny is aggravated and becomes robbery, when (1) the property is taken from the person or presence of another, and (2)'the taking is accomplished, by the use of force or threatened force (or, as sometimes stated, by putting the victim in fear of injury). Therefore, a defendant commits robbery when, with the intent permanently to deprive, he trespassorily takes and carries away the personal property of another from the latter’s person or presence by the use of force or threatened force. On this analysis, a robbery often, but not always, consists of a battery plus larceny or an assault plus larceny. By definition, then, robbery may be classified not only as an offense against property but also as an offense against the person.” 4 Wharton’s Criminal Law § 454 (15th ed. 1996). Commission of robbery is complete when the robber takes possession of property; the element of asportation is not required to complete theft or robbery. See K.S.A. 21-3426; State v. Long, 234 Kan. 580, Syl. ¶ 2, 675 P.2d 832 (1984), disapproved in part on other grounds State v. Keeler, 238 Kan. 356, 365, 710 P.2d 1279 (1985). We have determined that the test of whether a robbery has occurred should be whether the taking of the property has been completed-at the time the force or threat is used by the defendant. In order to constitute a taking, the prospective robber must have obtained- at some párticular moment the complete, independent, and absolute possession and control of the thing desired adverse to the rights of the owner therein. Ayon gave his keys to Avalos prior to the taking and the turn of events which ultimately resulted in his demise. Avalos arid Valdez did not obtain possession of Ayoris car prior to the violence to Ayon and the subsequent agreement to transport and kill him. They actually took possession of Ayoris car when they put Ayon, nearly unconscious and bleeding, in the back seat of Ayoris car. After taking forceful possession of Ayoris car, Valdez and Avalos then drove Ayon to a secluded area, dragged him out of the car, and ran over him repeatedly with the car. They then departed the area, and later vandalized and abandoned the car. This evidence is sufficient for a jury to find Valdez was guilty of aggravated robbeiy. AGGRAVATED KIDNAPPING AND CONSPIRACY TO COMMIT AGGRAVATED KIDNAPPING Aggravated kidnapping is the taking or confining of a person, accomplished by force, threat, or deception, with the intent to hold the person to facilitate the commission of any crime or to inflict bodily injury on the person where the person kidnapped sustained bodily harm. See K.S.A. 21-3420(b), (c); K.S.A. 21-3421. Valdez contends that the only evidence that Ayon was kidnapped was Jose Avalos’ testimony that after the party broke up, Valdez and Avalos drove away in Ayoris car with Ayon lying in the back seat asleep or unconscious. He argues that kidnapping requires proof of confinement, and there was no evidence that the badly beaten victim requested to leave the car, attempted to leave the .car, or ever was restrained or confined. Although some of the evidence is circumstantial, a conviction of even the gravest offense may be sustained by circumstantial evidence. See State v. Smith, 245 Kan. 381, 393, 781 P.2d 666 (1989). Without reciting all the testimony, there was sufficient evidence from witnesses from which reasonable minds might fairly decide Valdez was guilty of aggravated kidnapping and a conspiracy to commit aggravated kidnapping without a reasonable doubt. ADMISSION OF RESULTS OF DNA TEST Julie Kempton, a molecular biologist for Cellmark Diagnostics, testified at trial regarding DNA- testing she performed on various fabric and blood samples, including cuttings from blood-stained Nike tennis shoes and a blue denim Dickies jacket. These items had been removed from the Valdez home during execution of the search warrant. Kempton had performed PCR testing on the fabric samples. She testified that, using the database Cellmark subscribed to, 1 in every 7,600 individuals in the Hispanic population would have genetic markers consistent with those found on the evidence. She concluded that Valdez could not have been the source of the DNA that was extracted from the evidence material, and the victim could not be excluded as a source. Valdez objected to Kempton’s qualifications as a statistician and a mathematician and thé chain of custody. The court overruled both objections. FOUNDATION Kempton testified that Cellmark Diagnostics is a private DNA testing company that conducts DNA analysis in paternity and criminal cases. For criminal testing, Cellmark has been accredited by the American Society of Crime. Laboratory Directors (ASCLAD). Cellmark is the only private laboratory that has received accreditation by ASCLAD. Valdez contends that the trial court erred in admitting the statistical probabilities because the State failed to provide an adequate foundation for Kempton to testify as an expert as to the formulation and accuracy of Cellmark’s database and its acceptance as a database for DNA testing. The general acceptance test governing the admissibility of scientific evidence in Kansas where a test or standard is required is set forth in Frye v. United States, 293 F. 1013.(D.C. Cir. 1923). DNA testing has met the Frye test in Kansas. See State v. Isley, 262 Kan. 281, 285, 936 P.2d 275 (1997). In Isley, this court addressed a similar challenge to the admission of DNA evidence. As in this case, the testing laboratory in Isley was Cellmark, and the testifying expert was not a population geneticist. The Cellmark expert testified concerning statistical probabilities based on her chemical analysis, and the defendant contended that the expert’s conclusion lacked the foundation required for scientific evidence. The Isley court held that statistics based on population studies are admissible and challenges to the reliability of the testimony goes to its weight, not its admissibility. Population percentages on the possession of certain combinations of blood characteristics, based upon established facts, are admissible as relevant to identification. 262 Kan. at 288; State v. Dykes, 252 Kan. 556, 562, 847 P.2d 1214 (1993). Valdez offers no authority casting doubt on the statistical database, but merely challenges the expert’s credentials to testify as to the database. He contends that Isley is not applicable because the expert in Isley laid a foundation for the statistical database by demonstrating her understanding of the database and the protocols established for using it, whereas, here the expert did not testify accordingly. We find that the distinction is not significant. The challenge to DNA statistical analysis goes to the weight of the evidence and not to the admissibility. The trial court did not abuse its discretion by admitting the expert testimony regarding the population statistics based on the DNA testing. CHAIN OF CUSTODY Valdez also asserts that because the State failed to provide an adequate chain of custody of items tested, the trial court erred in admitting the DNA results. Police, officers found a pair of black Nike tennis shoes in Valdez’ home. Maria Garcia, Valdez’ stepmother, told police that the shoes belonged to Valdez. The shoes were stained with blood. When tested, the blood was not from Valdez but could have been Ayon’s. Valdez points out that Kempton testified that the evidence custody receipt identified four cuttings from black Nike tennis shoes: Q1A, Q1B, QIC, and Q1D. However, Kempton testified that Q1A was a swab. Valdez notes that Kempton’s report lists Q1A and QIC as swabs and Q1B and Q1D as black material. He now asserts that Kempton failed to testify as to how the swabs were prepared. Although Valdez objected at trial to the admission of Kempton s report based on chain of custody, his argument in the district court concerned the chain of custody in shipping from KBI to Cellmark. The State witness from KBI had testified the items were shipped to Cellmark via Federal Express. Kempton testified that she received the items from Federal Express. The erroneous admission of evidence may not be raised on appeal absent a timely and specific objection at trial. K.S.A. 60-404; see, e.g., State v. Sutton, 256 Kan. 913, Syl. ¶ 4, 883 P.2d 755 (1995). Valdez’ argument concerning the number and preparation of the swabs was not raised at trial; therefore, it cannot be raised in the appeal. SUPPRESSION OF STATEMENTS On February 6, 1996, 2 days after the discovery of Ayoris body, Garden City police officers executed a search warrant at Valdez’ parents’ home. The supporting affidavit for the search warrant identified Abelardo Gonzales, Valdez’ stepbrother, as the subject of the investigation. As provided in the search warrant, the entry team conducted a no-knock entry into the house and found Maria Garcia (Valdez’ stepmother), Abelardo Gonzales (Valdez’ stepbrother), Jose Avalos, and Valdez in the house. The entry team handcuffed Gonzales’, Avalos’, and Valdez’ hands behind their backs and had them lie on the floor. This was standard procedure exercised for the safety of the officers when conducting a no-knock entry into a residence. After the residence was secured and the occupants handcuffed, the search team entered the house to search. When Donnie Diehl, of the Finney County Sheriffs Department, entered the house, Valdez and his friends were lying handcuffed on the living room floor. Officers found drugs and drug paraphernalia in plain view during the search. No charges resulted from the discovery. Valdez was uncuffed shortly after the search of the residence, and he was searched for weapons. Diehl then asked Valdez to come in a bedroom where he explained to Valdez that he (Diehl) was going to search for bloody clothing and other evidence of the fight that occurred on Chesterfield Street. Diehl asked Valdez if he had seen the fight or heard about it. Valdez denied any knowledge of the fight. Valdez told Diehl that he and Avalos left the parly at approximately 11 p.m. and walked to Valdez’ home. Diehl asked Valdez which bedroom was his, and Valdez directed Diehl to the appropriate room. Diehl had Valdez sit in the living room while he searched the bedroom. Valdez and his friends sat on the couch and on the floor in front of the couch while the officers brought out bloody clothing found in the bedroom and asked Valdez to identify who owned the particular items. Valdez responded that a pair of black Nike tennis shoes and a pair of jeans belonged to a friend. The officers’ search took approximately 2 hours. Valdez was released from custody at the conclusion of the search. Prior to trial, Valdez moved to suppress the statements he made during the February 6, 1996, search. At the suppression hearing, Diehl testified that he believed Valdez had been advised that he was not under arrest, but Diehl had no specific recollection of any officer advising Valdez of the fact. Diehl was sure that Valdez was not advised of his Miranda rights during the search. The trial court denied Valdez’ motion to suppress, finding that Valdez was not under arrest during the execution of the search warrant. The judge reasoned: “If, in fact, that [a drug] charge had come forward and that charge had, in fact, been filed, it certainly then, would have led [sic] credence to Mr. Valdez’ statement that all this interrogation or asking of questions or investigation incident to this search, was as a result of an arrest and an in custody interrogation or interview.” The court also relied on the fact that the search warrant and the accompanying affidavit identified Abelardo Gonzales, not Adam Valdez, as a suspect. Normally, when a trial court conducts a full pretrial hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely and voluntarily given, and admits the statement into evidence at the trial, this court accepts that determination if it is supported by substantial competent evidence. State v. Lewis, 258 Kan. 24, 36, 899 P.2d 1027 (1995). This standard of review does not apply. The trial court used the wrong test in its analysis of the issue. In Stansbury v. California, 511 U.S. 318, 128 L. Ed. 2d 293, 114 S. Ct. 1526 (1994), the United States Supreme Court held that whether the interrogating officers had focused their suspicions upon the individual being questioned is not relevant for purposes of Miranda if those suspicions are not disclosed to the defendant. 511 U.S. at 326. The Court held that an officer s knowledge or beliefs may bear upon the custody issue if they are conveyed to the individual being questioned, but they are relevant only to the extent they would affect how a reasonable person would gauge his or her freedom. The determining factor in deciding whether a Miranda warning is required is whether the person has been taken into custody. The subjective belief of the officer is not an issue in determining whether a suspect is in custody for purposes of Miranda unless it is actually communicated to die suspect. See 511 U.S. at 325. Miranda warnings are required where there has been such a restriction on a person’s freedom as to render him or her in custody. An objective standard is used to judge whether an interrogation is custodial. The proper analysis is how a reasonable person in the suspect’s position would have understood the situation. State v. Fritschen, 247 Kan. 592, Syl. ¶ 2, 802 P.2d 558 (1990). There were significant restraints on Valdez’ liberty during the execution of the search warrant. Clearly, a reasonable person in Valdez’ position would have believed he was in custody. The questions asked by the officers during die search constituted a custodial interrogation for purposes of Miranda. This conclusion, however, does not resolve the issue. Although Detective Diehl stated at the suppression hearing that Valdez identified items of clothing as belonging to him during the search, the particular clothing Valdez identified was not specified. It is not clear from the hearing if any of the clothing identified by Valdez as his was clothing that was used against him at trial. It is clear that the black tennis shoes were found in Valdez’ closet, but the detectives testified that it was Maria Garcia, Valdez’ stepmother, who identified the shoes as belonging to Valdez. Valdez objected at trial to statements made by him during the search. Valdez provides a citation to the record of his objection. We note that at that point in the trial, Detective Diehl was testifying to Valdez’ responses to Diehl’s questions during the search. However, a review of the statements reveals that Valdez’ responses were not admissions and were not incriminating. Detective Diehl testified that Valdez responded to questions regarding whether he went to the party on Chesterfield Street, how long he stayed, whom he left with, and where they went after the party. Valdez admitted to being at the party, staying until 11 or 11:30, leaving with Jose Avalos, and going to his home afterwards. If incriminating statements were made by Valdez and those statements were used against him in court, Valdez has failed to designate those statements in the record. An appellant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court. State v. Moncla, 262 Kan. 58, 68, 936 P.2d 727 (1997). Valdez has failed to demonstrate that he was prejudiced in any way from the admission of statements made during the execution of the search warrant in violation of Miranda. Valdez also contends that a subsequent statement he made to police on February 20, 1996, was admitted at trial in violation of Miranda. On that date, police officers came to Valdez’ place of employment and requested that he accompany them to the police station. Valdez agreed. The officers told Valdez that they wanted to go over his account of the events of February 3-4, 1996. Valdez answered that he had previously lied regarding the hour he went home from the party because he was afraid he would be arrested for curfew violation. The officers immediately advised Valdez of his Miranda rights and arrested him. Valdez argues that his statement prior to his arrest admitting he lied to the police was the result of a custodial interrogation. The Supreme Court has not overruled the general rule that any statement made by a person during custodial police interrogation cannot, over the person’s objection, be admitted in evidence against the person at trial, even though the statement may in fact be wholly voluntary, unless the police, before interrogation, informed the person that he or she has a right to remain silent, that any statement the person makes may be used as evidence against that person, and that the person has a right to the presence of an attorney, either retained or appointed. An exception to the general rule is that absent deliberately coercive or improper tactics by law enforcement officers in obtaining an initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement while in custody may remove the conditions that precluded admission of the earlier statement. In such circumstances, the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether to waive or invoke his or her rights. State v. Lewis, 258 Kan. at 36. Some volunteered statements are not barred by the Fifth Amendment. The special procedural safeguards stated in Miranda are not required where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation. “Interrogation,” as conceptualized iri the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself. Since police cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation extends only to words of actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response. Rhode Island v, Innis, 446 U.S. 291, 299-302, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980). Absent deliberate coercive or improper tactics by police in obtaining an initial statement, the fact that a suspect has made an unwarned admission does not require a presumption of compulsion. In determining whether an incriminating statement is voluntary, a court is to look at the totality of the circumstances. The burden of proving that a confession or admission is admissible is on the prosecution, and the required proof is by a preponderance of the evidence. When a trial court conducts a full pretrial hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely and voluntarily given, and admits the statement into evidence at the trial, this court accepts that determination if it is supported by substantial competent evidence. 258 Kan. 24, Syl. ¶ 4. When the officers told Valdez they wanted to discuss his statement of what occurred the night of the murder, Valdez immediately answered that he had previously Med to the officers. The officers immediately arrested Valdez and advised him of his Miranda rights. There is no evidence of coercion or an attempt to undermine a suspect’s ability to exercise free will. REQUIRING A WITNESS TO TESTIFY Prior to Valdez’ trial, Jose Avalos pled guilty to felony murder for his participation in the murder of Juan Ayon. Avalos had not yet been sentenced for felony murder. Avalos moved to withdraw his plea. The court denied his motion. The appeal of the denial of Avalos’ motion to withdraw was still pending at the time of Valdez’ trial. Avalos, invoking his Fifth Amendment right against self-incrimination, refused to testify at Valdez’ trial. Over Valdez’ objection, the trial court found that Avalos had previously waived his privilege against self-incrimination by testifying under oath regarding his involvement in the murder of Ayon at Valdez’ preliminary examination and ordered Avalos to testify. The court concluded that Valdez had no standing to object to a violation of Avalos’ Fifth Amendment rights. Whether the trial court erred in ordering Avalos to testify in violation of Avalos’ Fifth Amendment right against self-incrimination is a question of law. An appellate court’s scope of review on questions of law is unlimited. State v. Anderson, 259 Kan. 16, 18, 910 P.2d 180 (1996). There is no doubt that an individual’s right against self-incrimination extends through sentencing. However, the right against self-incrimination pertains only to the person incriminated by his own testimony, not to others incriminated by his testimony. The right against self-incrimination is personal to the witness, and the defendant in a criminal action has no standing to assert the witness’s privilege. State v. Smallwood, 223 Kan. 320, Syl. ¶ 5, 574 P.2d 1361 (1978). Valdez had the right to cross-examine the reluctant witness and cannot be protected by Avalos’ Fifth Amendment right not to testify against himself. The trial court correctly found that Valdez had no standing to object. REBUTTAL EVIDENCE During the search, black Nike tennis shoes stained with blood consistent with the DNA properties of Ayon’s blood were taken from Valdez’ bedroom closet. Defense Exhibit S indicated that Valdez owned blue, rather than black, tennis shoes. The defense called Dennis Asper, a jailer, who testified that a pair of blue Nike tennis shoes, admitted into evidence, were included in Valdez’ property when he was booked into jail. The State called Cassandra Warren on rebuttal. The State expected Warren to testify that Valdez had worn black Nike tennis shoes at the party on the night of the murder. Valdez objected to the State’s introduction of rebuttal testimony. However, when asked, Warren was unable to recall the color of Valdez’ shoes. Rebuttal evidence is evidence that is presented to deny some fact an adverse party has attempted to prove or has placed in dispute. The use and extent of rebuttal evidence rests in the sound discretion of the trial court. The erroneous admission of rebuttal evidence will not be grounds for reversal unless it appears discretion has been abused to the appellant’s prejudice. State v. Thompkins, 263 Kan. 602, Syl. ¶ 5, 952 P.2d 1332 (1998). The testimony regarding the disputed color of Valdez’ shoes was proper rebuttal under the circumstances. The court did not abuse its discretion in allowing the rebuttal. However, even if the rebuttal testimony had been erroneously admitted, the testimony did not prejudice Valdez because the rebuttal witness could not recall the color of Valdez’ tennis shoes. Valdez also contends that the trial court erred in allowing the State to present rebuttal evidence establishing that Valdez’ brother, Walter, was a Y.C. gang member. Walter Valdez testified in the defense case at trial. On cross-examination, Walter Valdez testified that he was not a Y.C. gang member. As to his acquaintance with the gang members, Walter Valdez stated, “They were just friends from school that I’d see around town and [say] hello and, you know, how you doing and — and that was it.” To rebut Walter Valdez’ testimony, the State presented the testimony of Detective William Relph who testified that Walter Valdez was considered by police to be a gang member. He presented photographs of Walter flashing gang signs. When the defendant opens a subject on direct or cross-examination, the State may develop and explore various phases of that subject. State v. Thompkins, 263 Kan. at 624. The trial court did not abuse its discretion in permitting the State to rebut Walter Valdez’ statements. EVIDENCE OF GANG AFFILIATION The evidence of gang affiliation is admissible to show motive for an otherwise inexplicable act. However, that evidence is admissible only where there is sufficient proof that such membership or activity is related to the crime charged. State v. Tran, 252 Kan. 494, 847 P.2d 680 (1993). Valdez contends that the trial court erred in admitting evidence of his gang membership. Valdez asserts that the initial argument at the party was between two non-gang members and the subsequent beating of Ayon involved both gang and non-gang members. Therefore, argues Valdez, the killing of Ayon was not a gang activity and gang affiliation had no bearing on the case and was not relevant to an issue in the case. The standard of review regarding the admission of gang affiliation is whether the trial court abused its discretion. State v. Hooks, 251 Kan. 755, 765, 840 P.2d 483 (1992). There was no evidence suggesting that Jose Avalos or Valdez had a personal motive for killing Ayon. There was testimony by which the jury could reasonably infer that the killing of Ayon was ordered by die leader of the Y.C. gang, Richard Garcia, and that the order was given to Jose Avalos and Valdez, who were both gang members. There was also evidence that Jose Avalos participated in the killing only because he was threatened with violence by the gang if he refused. Valdez’ gang affiliation, therefore, was evidence that explained an otherwise inexplicable act. As such, it was directly related to the killing of Ayon. The trial court did not err in admitting evidence of Valdez’ gang affiliation. EVIDENCE OF ANOTHER SUSPECT There were two distinct sets of shoe impressions found in the snow in the area around Ayon’s abandoned car. One shoe print appeared to come from a Nike shoe and the other from a hiking boot. The individuals whose shoes made the prints had departed from the victim’s car and had traveled through alleys, over fences, and around houses. Where they often encountered dead-ends, the individuals had turned around and continued to travel toward an apartment complex where impressions left by car tracks indicated they departed the area in a car. To show that another person may have committed the crime, Valdez proffered evidence outside the presence of the juiy that the police had received an anonymous call on February 5, 1996, from a person who stated he had talked to a man named Francisco Herrera. Herrera had told the anonymous caller that David Ramirez, the man Ayon purportedly threatened to report to the police regarding drug crimes, was involved in the killing of Ayon. Outside the presence of the jury, Valdez examined the police officer who received the anonymous telephone call. The officer testified that the caller said Francisco Herrera lived at the apartment complex near the house on Chesterfield Street. Herrera had told the caller that Ayon had been killed and the perpetrators had moved his body to another location. The caller also told the police officer Herrera had worked with Ramirez at IBP, and word was circulating around IBP that three men had beaten Ayon with a baseball bat and then run over him with a car. The caller had been told by Herrera that Ramirez had quit his job at IBP and moved to Texas or Mexico right after the murder. Valdez also proffered that Monica Lucero, an ex-girlfriend of David Ramirez, lived in the area where Ayon’s abandoned car was found. The shoeprints leading from the car indicated that the sus pects had stopped in the vicinity of Monica Lucero’s house. There were no shoe prints indicating that the suspects had entered the house or that a person from inside the house had joined the suspects. The police had not considered this of any consequence because the dead end at Monica Lucero’s house was one of many dead ends taken by the suspects after they left the victim’s car. The court informed Valdez that the only way he could present evidence that David Ramirez had committed the crime was to have Monica Lucero testify that she actually saw Ramirez near her house after the homicide. Valdez informed the trial court that he had not been able to locate either Monica Lucero or Francisco Herrera. Because Valdez could not locate either Monica Lucero or Francisco Herrera, the court refused to allow Valdez to introduce the anonymous caller’s statements into evidence. Monica Lucero appeared at trial after the close of Valdez’ evidence. The court permitted Valdez to proffer Lucero’s testimony outside the presence of the jury. Lucero stated that she and David Ramirez had a child together. She was not at home the night Juan Ayon was killed, nor did she see David Ramirez that night. Lucero said that Ramirez told her that Ayon had asked him for drugs, but Ramirez had refused to deal with him. Ramirez did not say that he killed Ayon or had Ayon killed. Lucero said that Ramirez had moved to Texas immediately after he was fired from IBP. The court found that Lucero’s proffered testimony did not establish a nexus between Ramirez and the death of Juan Ayon; therefore, her testimony was not relevant. The court denied Valdez’ request to re-open his case or allow Lucero to testify. Valdez contends that the trial court’s refusal to allow him to introduce evidence regarding the possibility that David Ramirez was a perpetrator in the crime against Ayon denied him the right to present evidence supporting his theory of defense. He argues that an appellate court standard of review is de novo because the issue involves the denial of his constitutional right to a fair trial. The State contends that the issue is not Valdez’ right to present a defense but concerns the trial court’s discretion in refusing to admit evidence. The State argues that the trial court correctly refused to allow the introduction of evidence because Valdez failed to lay a proper foundation or demonstrate the relevance of the evidence. The question of whether the trial court erred in excluding evidence is subject to an abuse of discretion standard of review. State v. Gardner, 264 Kan. 95, 103, 955 P.2d 1199 (1998). The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s accusations. Chambers v. Mississippi, 410 U.S. 284, 294, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973). Limitations placed on the accused’s ability to present a defense can, in some circumstances, be severe enough to violate due process. A defendant’s right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions. See Taylor v. Illinois, 484 U.S. 400, 410, 98 L. Ed. 2d 798, 108 S. Ct. 646 (1988); Rock v. Arkansas, 483 U.S. 44, 55, 97 L. Ed. 2d 37, 107 S. Ct. 2704 (1987); Chambers, 410 U.S. at 295. A defendant’s interest in presenting such evidence may “ ‘bow to accommodate other legitimate interests in the criminal trial process.’ ” Rock, 483 U.S. at 55 (quoting Chambers, 410 U.S. at 295). The information Valdez considered to be of primary importance to Valdez in the telephone tip was that Ramirez had quit his job at IBP and had moved to Texas or Mexico. Counsel for Valdez argued that this information was relevant because the police had focused on Valdez only after finding that he and Avalos had attempted to borrow money from their friends to leave town. The court found that Ramirez’ alleged urgent plans to leave town did not, without more, implicate him in any crime. The court noted that Ramirez could have felt the need to leave town for any number of reasons including that he had information he did not want to disclose regarding the killing of Ayon. The accused does not have an unfettered right to offer evidence that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence. Montana v. Egelhoff, 518 U.S. 37, 42, 135 L. Ed. 2d 361, 116 S. Ct. 2013 (1996). The court did not err in excluding the anonymous caller’s unsubstantiated tips. As there was no error, constitutional or otherwise, Valdez’ issue fails. PROSECUTOR REMARKS During closing argument, the prosecutor made the following statement: “There’s all kinds of evidence with regard to how many times they ran over Mr. Ayon. We have Jose Avalos, who was there telling us. We have the doctor telling — Dr. Melin telling us. We have Adam Valdez telling us.” The defense counsel objected on the ground that Valdez had not made any statements to the jury. The court instructed the prosecutor to identify the witnesses who made the statements. The prosecutor continued: “I apologize, Your Honor. I think that Carlos Valencia indicated that he had spoken with [Valdez] and [Valdez] indicated that they had run [Ayon] over several times. So, we do have that.” Valdez contends that the misstatement by the prosecutor called attention to the fact that he did not testify at trial. He argues that the trial court had a duty to admonish the jury to disregard the statement. The prosecutor’s misstatement was clearly an inadvertent error which he promptly corrected. The correction obviated any need for further admonishment by the court. Under the circumstances, further attention by the court would have only exacerbated the error. The court did not err in failing to give an admonishment. Valdez also takes issue with a statement by the prosecutor during closing argument regarding the testimony of Carlos Valencia. Valencia testified on behalf of the State in hopes of favorably influencing plea negotiations in a pending criminal case against him. Regarding Valencia’s testimony, the prosecutor stated: “Then, Carlos Valencia. I didn’t make any deals with him. He’s — he can call it what — he can call me a liar if he wants to because he’s called everybody else one but I didn’t make a deal with him. I have never made a deal with that man. To this day, there’s no deal. Never has been. He’s crying. When he’s in the Police Department, this big, tough gangster’s crying his eyes out, not because he’s afraid of the police but because he’s afraid of all these people?” The defense counsel objected, and the prosecutor continued, “All these people, gangsters.” The objection was then overruled. Valdez contends that the statement regarding Valencia’s reason for crying in his police statement was a statement of facts not in evidence. Furthermore, he argues, the characterization of Valencia and his friends as “gangsters” was erroneous and prejudicial. Carlos Valencia testified that when he gave a statement to the police regarding his knowledge of the crime against Ayon, he cried. He further testified that he had been reluctant to coopérate with the police in obtaining a recorded confession from Valdez and Avalos because he was afraid of Valdez and Valdez’ friends. Valdez contends that the prosecutor’s comments are not grounded in fact because Valencia did not testify that the reason he cried at the police station was because he was afraid of Valdez’ friends. In closing argument, the prosecutor may comment on the evidence and draw reasonable inferences from the evidence. The inference that Valencia cried at the police station because he was afraid of Valdez’ friends is a reasonable inference from Valencia’s testimony. Regarding term “gangster” in closing, Valdez argues he had never been adjudicated a juvenile offender, so the term is factually inaccurate. The State defines “gangster” as “gang member,” and Valdez defines the word as “criminal.” Certainly, the term “gangsters” has both connotations. Neither connotation is outside reasonable inferences from the evidence in this case. Most of the witnesses to the events at the party on Chesterfield Street admitted to Y.C. gang membership. Others, who denied gang membership, were identified by police as gang members. Most admitted to criminal activities, whether or not those activities resulted in adjudications or convictions. Fair comment on evidence should not be discouraged. The prosecution can make comments on the evidence so long as the comments are confined to the evidence and reasonable inferences which can be drawn from the evidence. State v. Graham, 247 Kan. 388, 397, 799 P.2d 1003 (1990). In criminal trials, the prosecution is given wide latitude in language and in manner or presentation of closing argument as long as it is consistent with the evidence adduced. Improper remarks made by the prosecutor in closing argument are grounds for reversal only when they are so gross and flagrant as to prejudice the jury against the defendant and to deny the defendant a fair trial. State v. Baacke, 261 Kan. 422, Syl. ¶ 4, 932 P.2d 396 (1997). In closing argument, the prosecutor may draw reasonable inferences from the evidence, but may not comment upon facts outside the evidence. Counsel may make impassioned appeals to the jury, but should not inject issues broader than the accused’s guilt or innocence or make predictions about the consequences of the jury’s verdict, 261 Kan. 422, Syl. ¶ 5. The prosecutor’s remarks refer to facts in evidence and reasonable inferences that can be drawn from the evidence. Therefore, in this case, the prosecutor’s remarks were not error. CUMULATIVE ERROR Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant’s conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied him a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant. State v. Castoreno, 255 Kan. 401, 411, 874 P.2d 1173 (1994) (quoting State v. Lumbrera, 252 Kan. 54, 57, 845 P.2d 609 [1992]). The evidence in this case was difficult due to the vacillating versions of the events related by the witnesses in their statements to the police and at trial, and the complicated DNA evidence. However, Valdez has cited no trial error sufficient to require reversal of his conviction. Therefore, this issue has no merit. IMPOSING 40-YEAR MANDATORY PRISON SENTENCE Where a defendant is convicted of murder in the first degree based upon the finding of'premeditated murder, the court shall determine whether the defendant shall be required to serve a mandatory term of imprisonment of 40 years or be sentenced as otherwise provided by law. K.S.A. 21-4635(a). In order to make the determination, the court may consider evidence concerning any matter that the court deems relevant. The court shall include a consideration of the aggravating circumstances enumerated in K.S.A. 21-4636 and any mitigating circumstances. K.S.A. 21-4635(b). In this case, the trial court reviewed the aggravating factors found at K.S.A. 21-4636 and found that Valdez committed the murder of Juan Ayon in an especially heinous, atrocious, or cruel manner. The court then found that the aggravating factor was not outweighed by the mitigating factors of age and lack of criminal histoiy. Valdez contends that there was no clear testimony that Ayon was run over by the car more than once, or if Ayon had been run over several times, that he was alive after the initial impact. Valdez further argues that Ayon may not have perceived his impending death due to his extremely intoxicated state. “Where the sufficiency of the evidence for establishing an aggravating circumstance under K.S.A. 21-4636 is challenged, the standard of review is whether, after a review of all the evidence, viewed in the light most favorable to the State, a rational factfinder could have found by a preponderance of the evidence the existence of the aggravating circumstance.” State v. Spain, 263 Kan. 708, Syl. ¶ 6, 953 P.2d 1004 (1998) (changing the standard of review as expressed in State v. Brady, 261 Kan. 109, Syl. ¶ 4, 929 P.2d 132 [1996]). It was clear from the medical testimony at trial that Juan Ayon was alive when he was dragged out of his car into a field. Ayon was then run over between 3 and 7 times and dragged under the car for some distance. Dr. Melin concluded that based on the injuries, Ayon’s death occurred within a few minutes after he suffered the impact injuries. Under the facts, there was sufficient evidence for the court to find beyond a reasonable doubt that the manner in which Valdez killed Ayon was especially heinous, atrocious, or cruel. Affirmed.	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The opinion of the court was delivered by Six, J.: This case interprets certain provisions of Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq. While on felony probation for three other criminal cases, defendant Terry C. Koehn committed new crimes. His probation was revoked, and he was sentenced on the new crimes. Koehn appealed his sentence on several grounds, and the Court of Appeals in an unpublished opinion upheld the sentence, rejecting all of Koehn’s arguments. We have jurisdiction by granting Koehn’s petition for review. K.S.A. 20-3018(b); Rule 8.03 (1997 Kan Ct. R. Annot. 52). We consider three questions: (1) Does K.S.A. 21-4608(a) rather than K.S.A. 21-4608(c) control when probation is revoked and a defendant is sentenced on a new conviction on the same day? (2) Is the district court required to give its reasons for denying departure to a defendant under K.S.A. 21-4718(a)(2)? and, (3) Is revoking probation and sentencing a defendant on a new conviction the same day a “multiple conviction case” under K.S.A. 21-4720(b)? The answer is “no” to each of the three questions. Finding no error, we affirm. FACTS Koehn was on probation when he was charged with possession of marijuana, possession of cocaine, and criminal use of a financial card. On August 13, 1996, he pled guilty to possession of cocaine and criminal use of a financial card. Before sentencing, Koehn filed a motion for a durational or dispositional departure. When he appeared for sentencing on the cocaine possession conviction, his probation was revoked for the three prior convictions. The district court denied Koehn’s motion for a departure. He was sentenced to 28 months’ imprisonment to be served consecutive to the sentences already imposed on the three prior convictions. DISCUSSION The interpretation of the KSGA is a question of law. Our review is unlimited. State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993). Under the fundamental rule of statutory construction, the intent of the legislature governs. When a statute is plain and unambiguous, we must give effect to the intention of die legislature, rather than determine what the law should or should not be. Any reasonable doubt about the meaning is decided in favor of the defendant. The strict construction rule, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. State v. Cox, 258 Kan. 557, Syl. ¶ 7, 908 P.2d 603 (1995). K.S.A. 21-4608 Koehn argues that subsection (a) rather than subsection (c) of K.S.A. 21-4608 controls when probation is revoked and a defendant is sentenced on a new conviction on the same date. K.S.A. 21-4608 says in part: “(a) When separate sentences of imprisonment for different crimes are imposed on a defendant on the same date, including sentences for crimes for which suspended sentences, probation or assignment to a community correctional services program have been revoked, such sentences shall run concurrently or consecutively as the court directs.. . . “(c) Any person who is convicted and sentenced for a crime committed while on probation, assigned to a community correctional services program, on parole, on conditional release or on postrelease supervision for a felony shall serve the sentence consecutively to the term or terms under which the person was on probation, assigned to a community correctional services program or on parole or conditional release.” In support of his argument, Koehn cites State v. Edwards, 252 Kan. 860, 852 P.2d 98 (1993). Edwards was convicted of conspiracy to possess cocaine. Sentencing was suspended for 2 years. Edwards committed new crimes. When sentenced for the new crimes, his suspended sentence was revoked. He was resentenced to 1 to 5 years on the old cocaine conviction in addition to being sentenced for his new crimes. On reviewing K.S.A. 1992 Supp. 21-4608, we said: “Subsection (1) [now (a)] is a specific statute applied when all involved sentences occur, as here, on the same date and takes precedence over subsection (3) [now(c)j of said statute.” 252 Kan. at 870. Because Edwards was resentenced on the old conviction and sentenced on the new crimes the same date, subsection (1) was the applicable provision. We vacated Edwards’ sentences, holding that the district court imposed consecutive sentences on the basis that it incorrectly thought it was required to do so under subsection (3) of K.S.A. 21-4608. 252 Kan. at 870. The State fails to address the applicability of Edwards to Koehn’s claims. However, the State correctly argues that Koehn confuses probation revocation with sentence imposition. Edwards is distinguished from Koehn’s case. Edwards was re-sentenced whereas Koehn had his probation revoked and was ordered to serve the original sentences already imposed. During Koehn’s sentencing, the district judge said, “I’m going to sentence you to 28 months to the Secretary of Corrections, which is the plea bargain agreement. Your probation is revoked in the other three cases by the conviction in this case. This case will run consecutive, but, you’re going to have to go to the Department of Corrections and do your time on all four cases.” The sentencing judge did not impose a sentence or resenterice Koehn to any time on the three old convictions. Koehn was told that his new convictions revoked his probationary status in the three prior cases. K.S.A. 21-4608(a) specifically states that “[w]hen separate sentences of imprisonment for different crimes are imposed” sentences maybe consecutive or concurrent. No sentences were imposed for the three prior convictions, thus, subsection (a) does not apply to Koehn’s sentencing. The district judge correcdy imposed consecutive sentences under subsection (c) of K.S.A. 21-4608. Denying Departure Koehn asks us to decide whether and to what extent a sentencing judge is required to issue formal findings of fact and conclusions of law when denying a motion for durational or dispositional departure. K.S.A. 21-4718(a) provides: “(1) Whenever a person is convicted of a felony, the court upon motion of either the defendant or the state, shall hold a hearing to consider imposition of a departure sentence. . . . “(2) At the conclusion of the hearing or within 20 days thereafter, the court shall issue findings of fact and conclusions of law regarding the issues submitted by the parties, and shall enter an appropriate order.” Koehn complains that the sentencing court summarily denied the departure motion without any explanation. He concedes that K.S.A. 21-4721(c)(1) prohibits an appellate court from reviewing a sentence that falls within the presumptive limits as Koehn’s did. But, he argues, K.S.A. 21-4718 requires that the sentencing court issue findings of fact and conclusions of law that refer to the reasons for which the departure was sought. Koehn explains he is not appealing the denial of the. motion for departure; father, he is appealing the district court’s failure to comply with the statutory procedural mandates associated with departure motions. In support of his “procedural review” argument, Koehn cites State v. McDaniel, 255 Kan. 756, 877 P.2d 961 (1994). He points out that there may be a conflict between K.S.A. 21-4721(c)(1) (no right to appeal a presumptive sentence) and K.S.A. 21-4718(a) (district court shall issue findings of fact and conclusions of law). However, he argues that any conflict must be resolved in favor of his right to appeal. He reasons that in McDaniel, conflict between two statutes concerning appeal from a denial of a motion to withdraw a guilty plea was resolved in favor of the right to appeal. Thus, according to Koehn, his case must be similarly resolved. The State counters that Koehn is advancing a “backdoor attempt” to gain appellate review of the imposition of a presumptive sentence. We have no jurisdiction to review a presumptive sentence. State v. Myers, 20 Kan. App. 2d 401, 404, 888 P.2d 866 (1995). Resolving Koehn’s K.S.A. 21-4718 contention does not constitute a jurisdictional problem. He is not asking for a review of the denial of his motion for departure. He is seeking a claimed procedural entitlement under K.S.A. 21-4718(a)(2). He wants findings of fact, conclusions of law, and an appropriate order on the denial of his departure. Koehn’s argument has our attention. McDaniel observed: “By permitting a defendant to seek withdrawal of his or her plea pursuant to K.S.A. 22-3210(d), the legislature implicitly permitted that defendant to appeal from such denial, despite the appearance of 22-3602(a) to the contrary.” 255 Kan. at 760 (K.S.A. 22-3602[a] denies an appeal from either a plea of nolo contendere or guilty). Here, the legislature has permitted defendants to seek departures under K.S.A. 21-4718(a). The legislature has also directed district judges to make findings of fact and conclusions of law. K.S.A. 21-4718(a)(2). Thus despite the mandate of K.S.A. 21-4721(c)(1) (no appeal from a presumptive sentence) to the contrary, the legislature would appear to have implicitly allowed a defendant to appeal from the procedurally inadequate denial of a motion for departure. We need to resolve the conflict between the surface logic of Koehn’s contention and the clear impact of K.S.A. 21-4721(c)(1). K.S.A. 21-4721(c) says: “On appeal from a judgment or conviction entered for a felony committed on or after July 1, 1993, the appellate court shall not review: (1) Any sentence that is within the presumptive sentence for the crime.” We read K.S.A. 21- 4718(a)(2) and K.S.A. 21-4718(c) together with K.S.A. 21-4721(c)(1). The result is our conclusion that the dominant concept is the legislature’s intention to permit appeals only when the district court imposes a sentence other than a presumptive sentence. The Court of Appeals concluded in its unpublished opinion of Koehn’s appeal: “The district court specifically stated that there were no substantial or compelling reasons to support a departure. Beyond that, a sentencing court is not required to give its reasons for refusing to depart from a presumptive sentence.” (citing State v. Windom, 23 Kan. App. 2d 429, Syl. ¶ 1, 932 P.2d 1019, rev. denied 262 Kan. 969 [1997]). The State agrees and also cites State v. Mares, 20 Kan. App. 2d 971, 972, 893 P.2d 296, rev. denied 257 Kan. 1094 (1995). Mares held that the district court is not required to make specific findings to explain its rejection of a request for downward departure. The Mares court stated: “If a court does depart, K.S.A. 1993 Supp. 21-4718(c) requires it to make specific findings of fact or law. A similar requirement is not imposed for refusal to depart.” 20 Kan. App. 2d at 972. We agree with Mares. Having endorsed Mares, how do we resolve the apparent conflict with a plain reading of K.S.A. 21-4718(a)(2)? K.S.A. 21-4718 is divided into three subsections: (a), (b), and (c). Subsection (a) speaks generally to motions for departure. As Koehn contends, it directs the district judge to issue findings of fact and conclusions of law regarding the issues submitted by the parties and enter an appropriate order. Subsection (b) addresses the district court’s authority to depart from the sentencing guidelines on its own motion. Subsection (c) directs the district court to make findings of fact and conclusions of law when it departs from the guidelines regardless of whether a hearing is held. K.S.A. 21-4718(a) appears to require the district judge do more than deny a motion to depart. We resolve the apparent statutory inconsistency by emphasizing the legislature’s prohibition of appeals from a presumptive sentence in K.S.A. 21-4721(c)(1). Because no appeal is permitted from a presumptive sentence, we know of no reason for K.S.A. 21-4718(a)(2) findings of fact and conclusions of law when a presumptive sentence is imposed. During argument Koehn’s experienced counsel acknowledged that 21- 4718(a)(2) findings would do nothing procedurally to benefit Koehn. K.S.A. 21-4718(c) protects the defendant and the State with appellate review by requiring reasons for a deviation from a presumptive sentence. Koehn’s argument here fails for an additional reason. The record shows that the district court did make findings of fact and conclusions of law for Koehn. After Koehn’s counsel went through his litany of reasons why Koehn should receive probation instead of incarceration, Koehn himself was asked to address the court. Koehn did so, explaining why he wanted probation. The district judge responded, explaining why probation would not be granted. The judge concluded by saying, “I’m overruling the motion for departure. I don’t find any substantial or compelling reasons to sustain the motion.” K.S.A. 21-4704(d) provides that deviations from presumptive sentences are subject to judicial discretion, but only for “substantial and compelling reasons.” Here, the district court stated no substantial or compelling reasons existed to sustain the motion. The record shows that the district judge listened to the merits of the motion and considered the request, stating his reason for denying the motion. K.S.A. 21-4718(c) requires findings of fact “as to the reasons for departure.” Every appealable sentence will carry the sentencing judge’s reasoning to the reviewing appellate court. A “Multiple Conviction Case” Under K.S.A. 21-4720 For his third claim of error, Koehn argues that because the district court imposed sentence and revoked probation in three other cases at the same time, his was a multiple conviction case as defined in K.S.A. 21-4720. Koehn reasons that the district court erred by applying his full criminal history when imposing sentence on the new crimes. In support of his argument, he relies on State v. Christensen, 23 Kan. App. 2d 910, 937 P.2d 1239 (1997). We have disapproved the Christensen reasoning on which Koehn relies. See State v. Bolin, 266 Kan. 18, 968 P.2d 1104 (1998). The Court of Appeals found no merit in Koehn’s argument. Koehn was sentenced on only one case. His probation was revoked in three other cases. Koehris sentencing and probation revocation is not a “multiple conviction case” under K.S.A. 21-4720, because he was neither sentenced nor even resentenced on the three prior cases. Rather, the term “multiple conviction case” refers to sentencing on multiple convictions from one charging document. State v. Roderick, 259 Kan. 107, Syl. ¶ 3, 911 P.2d 159 (1996) (holding a “multiple conviction case” in K.S.A. 21-4720[b][4] applies to sentencing on multiple convictions arising from multiple counts within a single charging document and not to sentencing on multiple convictions on the same date in different cases). Revoking probation and sentencing Koehn on a new conviction the same day is not a “multiple conviction case” under K.S.A. 21-4720(b). We affirm the Court of Appeals: (1) K.S.A. 21-4608(c) rather than K.S.A. 21-4608(a) controls when probation is revoked and a defendant is sentenced on a new conviction the same day; (2) the district court is not required to give reasons for denying departure to a defendant under K.S.A. 21-4718(a)(2); and (3) the facts here do not involve a K.S.A. 21-4720(b) multiple conviction case. Affirmed.	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In a letter dated January 7, 1999, to the Disciplinary Administrator, respondent Donna L. Malter, of Kansas City, Missouri, an attorney admitted to practice law in the state of Kansas, voluntarily surrendered her license to practice law in Kansas, pursuant to Supreme Court Rule 217 (1998 Kan. Ct. R. Annot. 242). At the time respondent surrendered her license, there was a formal complaint against her scheduled for hearing on February 16, 1999, before a panel of the Kansas Board for Discipline of Attorneys. The complaint contained allegations of client abandonment during litigation, failure to return client communications, lack of diligence, and failure to cooperate with the disciplinary investigations in the three separate client complaints before the Board. Further, respondent was administratively suspended from practicing law in Kansas pursuant to this court’s order of suspension dated November 5, 1997. This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of respondent’s license should be accepted and that respondent should be disbarred. It Is Therefore Ordered that Donna L. Malter be and she is hereby disbarred from the practice of law in Kansas and her license and privilege to practice law are hereby revoked. It Is Further Ordered that the Clerk of tíre Appellate Courts strike the name of Donna L. Malter from die roll of attorneys licensed to practice law in Kansas. It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to respondent, and that respondent forthwith shall comply with Supreme Court Rule 218 (1998 Kan. Ct. R. Annot. 246).	[ -80, -21, -52, 28, 9, 96, 50, 61, 81, -45, 119, 81, -23, -34, 5, 121, 18, 109, 17, 104, -43, -74, 118, 0, 38, -5, -56, -43, -70, 95, -28, -67, 73, 56, 10, -43, 6, -54, -127, 24, -58, 7, 9, -36, 91, -127, 52, 105, 18, 15, 17, 31, -77, 47, 57, 73, -88, 108, -69, -19, 81, -111, -101, 29, 127, 17, -109, 20, 30, -121, 92, 59, -120, -71, 41, -20, 51, -90, 2, 116, 71, -8, 12, 118, 98, 49, 49, -25, -84, -84, 12, 122, -99, -93, -103, 72, 65, -120, -74, -44, 103, 18, 3, -4, 96, 7, 29, -84, 14, -53, -44, -79, 14, 95, -50, -103, -17, -25, 48, 84, -107, 116, 79, 83, 50, 19, -50, -28 ]
Per Curiam: This is an original proceeding in discipline against respondent Michael L. Bennett, of Kansas City, Kansas, an attorney admitted to the practice of law in Kansas. Respondent stipulated to the facts and violations as alleged in the formal complaint. The pertinent part of the stipulation as found by the panel of the Kansas Board for Discipline of Attorneys is as follows: “2. On the 18th day of December, 1996, the Shawnee County District Attorney’s Office filed a three-count complaint against Respondent. “3. The charges arose out of a police report and insurance claim made by the Respondent in May of 1996. “4. Respondent was charged with the following offenses: (a) A fraudulent insurance act in violation of K.S.A. 40-2,118(a), a level 8 nonperson felony; (b) Theft by deception in violation of K.S.A. 21-3701(b), a level 9, non-person felony; and (c) Falsely reporting a crime in violation of K.S.A. 21-3818, a Class A nonperson misdemeanor. “5. In May, 1996, Respondent reported to the Topeka Police Department that his home had been burglarized and that several items belonging to himself and his tenant, Donalea Denton, a law student, had been stolen. “6. Respondent subsequently submitted an itemized claim to his homeowner’s insurance company, and on or about June 20, 1996, received $4,863.00 for his claim. “7. In October, 1996, while Ms. Denton was preparing to move out of Respondent’s residence she discovered that several of the items that the Respondent had reported stolen were present. “8. Ms. Denton reported this information to the Topeka Police Department and to the Office of the Disciplinary Administrator. “11. On the 24th day of January, 1997 the Respondent entered into a diversion agreement with the Shawnee County District Attorney’s Office. The term of the diversion program was twenty-four (24) months. “12. In entering into the diversion agreement the Respondent stipulated to the facts as set forth in the affidavit and criminal complaint. “13. In response to the Office of the Disciplinary Administrator, the Respondent stated that his home had actually been burglarized in May of 1996. The Respondent, however, falsely inflated the insurance claim by listing additional items that had actually not been stolen. “14. At the time the alleged misconduct occurred, the Respondent’s primary' practice consisted of insurance defense litigation. “15. Respondent stipulated that the above-described facts constitute violations of the following Model Rules of Professional Conduct 3.4(a) and (b), 4.1, and 8.4(a), (b), (c) and (g) and Kansas Supreme Court Rule 704." Although respondent stipulated to a number of violations of the Model Rules of Professional Conduct (MRPC) (some of which are inapplicable to the facts before us), this court is primarily concerned with respondent’s admitted violations of MRPC 8.4(b) (1998 Kan. Ct. R. Annot. 386) (commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects); 8.4(c) (engage in conduct involving dishonesty, fraud, deceit or misrepresentation); and 8.4(g) (engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law'). The Disciplinary Administrator recommended disbarment. The panel recommended suspension of respondent’s license to practice law for 1 year. The panel also recommended that respondent’s law' practice be supervised and that he be placed on suspended probation for 2 years. Respondent has not experienced any problems concerning the practice of law or managing a law' office. We are of the opinion that respondent’s conduct warrants indefinite suspension. Respondent voluntarily ceased the practice of law in January 1997. His date of indefinite suspension shall run from February 1, 1997. It Is Therefore Ordered that respondent be indefinitely suspended from the practice of law in Kansas from Februaiy 1, 1997. It Is Further Ordered that respondent shall comply with the conditions set forth in Kansas Supreme Court Rule 219 (1998 Kan. Ct. R. Annot. 256) prior to being reinstated to practice law in Kansas. It Is Further Ordered that this order be published in the official Kansas Reports and that the costs of the proceeding be assessed to respondent.	[ -112, -24, -67, 29, -120, -95, 58, 38, 91, -13, 119, 83, -19, -18, 4, 107, -43, 105, -12, 120, -45, -74, 123, -53, -10, -69, -7, 85, -70, 79, -20, -97, 73, 48, -126, -43, 6, 10, -91, -100, -118, 3, -117, -16, -37, 64, 32, 125, 25, 11, 113, 31, -77, 42, 17, -63, 9, 44, -6, -92, -47, -48, -117, 21, 122, 23, -93, -123, -100, 15, 80, -81, -100, 57, 32, -23, 115, -74, -126, 116, 79, -119, -116, 98, 98, 48, 9, -91, -76, -100, 47, 53, -97, 38, -103, 65, 73, 12, -106, -99, 116, 22, 39, -4, -31, -123, 31, 104, -122, -17, -44, -111, 15, -32, -116, -101, -1, -90, 32, 80, -60, -90, 95, 82, 114, -101, -114, -15 ]
The opinion of the court was delivered by Allegrucci, J.: This is a declaratory judgment action brought by the State of Kansas on behalf of the Kansas Department of Human Resources (KDHR) against the City of Topeka (City). The district court entered judgment in the City’s favor. The KDHR appealed. KDHR’s motion to transfer the appeal to this court from the Court of Appeals was granted. This dispute arose in an employment discrimination matter. Thelma A. Drayton, a former employee of KDHR, filed with the City’s Human Relations Commission a complaint of race discrimination against KDHR, alleging a violation of the City’s anti-discrimination ordinance. On the ground that the City does not have authority to investigate or enforce a complaint against the state agency, KDHR refused to cooperate in the investigation and filed a petition for declaratory relief in the district court. The following facts were stipulated by the parties. In August 1997, the Secretary of KDHR received a letter from the Director of the City’s Human Relations Commission advising that the City had received a complaint against KDHR by former employee Drayton. The complaint alleged race discrimination against her in job assignments and disciplinary action. KDHR answered that the City did not have jurisdiction to investigate an employment discrimination complaint against the state agency. KDHR requested transfer of Drayton’s complaint to the Kansas Human Rights Commission. The City refused. In the district court, KDHR filed a petition for declaratory relief on the question of whether the City has authority to process employment discrimination complaints against the State and/or its agencies. Based on the stipulated facts, briefs, and oral arguments of counsel, the district court held that the City was acting within its authority in enforcing its employment discrimination ordinance against a state agency. The sole issue in the appeal is whether the City may enforce its employment discrimination ordinance against a state agency. This court’s review of the trial court’s conclusions of law is unlimited. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991). The district court stated the issue as “whether through legislative enactments of the Kansas Act Against Discrimination [KAAD], K.S.A. [44-1001] et seq., and the Kansas Tort Claims Act, K.S.A. [75-6101] et seq., the [S]tate has waived its sovereign immunity.” With regard to the former, the district court stated: “Through the KAAD, the legislature has expressly made the State liable for acts of discrimination in its employment practices.” On that basis, the district court concluded that “the [S]tate has waived its immunity in cases of employment discrimination.” In the Tort Claims Act, the district court found another waiver of state immunity and quoted Commerce Bank of St. Joseph v. State, 251 Kan. 207, Syl. ¶ 2, 833 P.2d 996 (1992): “ ‘Under K.S.A. 75-6103, the State is hable for damages (1) caused by the negligent or wrongful act or omission of any of its employees (2) while the employee was acting within the scope of the employment and (3) under circumstances where the governmental entity, if a private person, would be hable under the laws of this state.’ ” The district court considered and ruled out the possibility that a statutory exception to the waiver of immunity might apply. First, it noted that employment discrimination is not one of the exceptions expressly identified in the Act. The district court further concluded that the exception for discretionary functions would not apply. It reasoned that the KAAD imposes a legal duty on the State to refrain from employment discrimination and that the discretionary function exception is not applicable where there is a legal duty. The district court found confirmation of its conclusion in Att’y Gen. Op. No. 77-232. KDHR’s petition for declaratory relief presented two questions for determination. The first was whether the State has waived its sovereign immunity through legislative enactments, and the second was “[w]hether the City of Topeka has exceeded its home rule powers under Article 12 § 5 of the Constitution of the State of Kansas by attempting to apply its ordinance to a dispute between an agency of the State of Kansas and one of its employees.” On the second question, the district court concluded that the City was not exceeding its authority. Its reasoning began with this court’s ruling in Hutchinson Human Relations Comm. v. Midland Credit Management, Inc., 213 Kan. 308, Syl. ¶ 3, 517 P.2d 158 (1973), that cities may enact anti-discrimination ordinances. The district court continued its analysis: “The legislature has given the ‘local human relations commission’ the power to enforce its orders in accordance with the Kansas act for judicial review and civil enforcement of agency actions, subject to the limitations set out in KAAD. K.S.A. 12-16,106.” Already having concluded that the State had waived immunity, the district court found no obstacle to the City’s enforcing its anti-discrimination ordinance against a state agency. The KAAD makes it unlawful for any employer to engage in employment discrimination based on race. The Kansas Human Rights Commission is established by the KAAD “[t]o receive, initiate, investigate and pass upon complaints alleging discrimination in employment . . . because of race.” K.S.A. 44-1004(4). Administrative procedures for complaints and investigations of alleged discrimination, hearings, and remedial orders are set out in K.S.A. 1997 Supp. 44-1005. K.S.A. 44-1011 makes final orders of the Commission enforceable and any action of the Commission subject to review in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions. The KAAD defines “employer” to include “the state of Kansas and all political and municipal subdivisions thereof,” thus submitting the State and its agencies to the Act’s administrative procedures and judicial enforcement. K.S.A. 44-1002(b). The City’s anti-discrimination ordinance generally parallels the state statutes. The ordinance is found in § 86 of the City’s Code. It creates the position of human relations executive director of the city and establishes the human relations commission. The director is responsible for receiving, initiating, investigating, deciding, and attempting to conciliate or refer complaints of discrimination. Section 86-53 incorporates certain sections of the KAAD into the City Code by reference. The attorney general’s opinion cited by the district court was* requested more than 20 years ago by the city attorney of Salina. It involved precisely the same issue as the present one. The attorney general concluded: “A Kansas city which has adopted an ordinance prohibiting discrimination in . . . employment on the basis of race . . . may lawfully enforce such ordinance against other governmental units having offices within said city, including agencies of the state, county, and school district.” Att'y Gen. Op. No. 77-232, p. 1. The reasoning that led to the conclusion was premised on this court’s decision in the Hutchinson case against Midland Credit, where that city’s enactment of a civil rights ordinance was approved. Att’y Gen. Op. No. 77-232, p. 2. The attorney general particularly noted the court’s discussion of the lack of any preemption provision in the KAAD. Att’y Gen. Op. No. 77-232, p. 2. On the narrower question whether the city’s ordinance could be applied to public employers, the attorney general relied on another Hutchinson case, City of Hutchinson v. Hutchinson, Office of State Employment Service, 213 Kan. 399, 517 P.2d 117 (1973). Hutchinson sued the local office of the Kansas State Employment Service and the local supervisor of the local office. The court stated that “[i]t is readily apparent the appellant’s action is against a state agency, The Kansas State Employment Service.” 213 Kan. at 403. The court noted that actions “against the agency involving employment service activities are brought in the name of the commissioner.” 213 Kan. at 403. Then the court zeroed in on the problem: “In the petition filed by the appellant the State Labor Commissioner is not made a party to the action. An attempt is made in tire petition to set up a purely local claim against a local official for the refusal to obey a city ordinance concerning the local official’s state type activities.” 213 Kan. at 403. The court concluded that because the State Labor Commissioner was an indispensable party to the action, Hutchinson’s failure to name him “as a party defendant and serve the attorney general or an assistant attorney general [as required by K.S.A. 1972 Supp. 60-304(d) for service of process on governmental agencies] is fatal to the appellant’s action. Accordingly, the court lacked jurisdiction over the necessary parties to proceed in the matter.” 213 Kan. at 406. The attorney general summed up his discussion of Office of State Employment as follows: “The case thus stands, by clear inference, for the proposition that the state, as an employer, is not exempt from the jurisdiction of a municipal civil rights ordinance providing redress against employment discrimination. The city ordinance thus protects state employees who are employed by state agencies in offices within the city.” Att’y Gen. Op. No. 77-232, p. 3. The County and KDHR challenge the attorney general’s conclusion on the ground that the issue of state exemption was not adjudicated. We agree. This court passed over the trial court’s ruling on subject matter jurisdiction and affirmed on a fine point of procedure. Although the attorney general’s inference may be a reasonable one, this court’s decision in Office of State Employment is not precedent for holding that the State is subject to the City’s ordinance. KDHR does not claim that the State is immune from an employment discrimination suit by an individual, but it contends that a municipality does not have the authority to investigate and adjudicate discrimination complaints of state employees. KDHR denies the applicability of the Tort Claims Act, contending that the KAAD governs matters of discrimination. Because the KAAD does not expressly delegate authority to municipalities except in the area of housing, KDHR interprets the Act as conferring “no authority upon municipalities in employee discrimination complaints filed against” the State. KDHR concludes that the State “has not waived its sovereign immunity in this matter.” We disagree. KDHR correctly identifies the KAAD as the state legislation that governs employment discrimination complaints. In this case, however, Thelma Drayton’s complaint was filed pursuant to a city ordinance rather than the state statute. The district court construed the KAAD as waiving the State’s immunity in cases of employment discrimination generally. Even if that were not so, the district court’s alternative or additional reasoning provides solid support for concluding that the State had waived immunity. The district court further observed that in enacting the Tort Claims Act, the legislature subjected the State to liability for wrongful acts. K.S.A. 75-6103(a) provides: “Subject to the limitations of this act, each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while, acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state.” The KAAD makes employment discrimination a wrongful act, and it creates a legal duty not to engage in unlawful discriminatory practices. K.S.A. 44-1009. As the district court noted, the discretionary function exception of the Tort Claims Act would not apply to a legal duty. Therefore, a governmental entity’s violation of the legislatively created duty to refrain from discriminatory employment practices is actionable under the KAAD and the Tort Claims Act. Hence, a state agency would not be immune from a complaint of employment discrimination filed under the City’s anti-discrimination ordinance, which parallels the KAAD and incorporates by reference many of its provisions. If the State had intended to exempt itself and its agencies from liability under local anti-discrimination ordinances, it could have done so. The Tort Claims Act is open ended. Liability is the rule for wrongful or tortious acts of a governmental employee, and immunity is the exception. The Tort Claims Act enumerates more than a score of exceptions from liability. K.S.A. 75-6104. None expressly excepts employment discrimination compensable or remediable pursuant to a local ordinance. In K.S.A. 12-16,106, the legislature vested authority in local human relations commissions and directors authorized by ordinance to award compensatoiy damages in a discrimination case to “secure enforcement of any final orders of such commission, in accordance with the act for judicial review and civil enforcement of agency actions in amounts not to exceed any limitations prescribed in the Kansas act against discrimination.” The legislature’s lengthy detailing of authority and procedure contains no indication of intent to prohibit prosecution or enforcement of actions against the State. K.S.A. 12-16,106. Notwithstanding that the State has not exempted itself from liability under local anti-discrimination ordinances, KDHR argues that a municipality’s authority to enforce its anti-discrimination ordinance must be derived from the home rule provision of the state constitution. Article 12, § 5(b) of the Kansas Constitution provides, in part: “Cities are hereby empowered to determine their local affairs and government .... Cities shall exercise such determination by ordinance passed by the governing body . . . subject only to enactments of the legislature of statewide concern applicable uniformly to all cities [and] to other enactments of the legislature applicable uniformly to all cities . . . .” KDHR contends that the City’s home rule authority does not extend to discrimination complaints of state employees. It argues that complaints of state employees are exclusively subject to the KAAD, legislation of statewide concern that is uniformly applicable statewide. KDHR concedes that in a case involving a private employer, this court, in spite of statewide application of the KAAD, held that it is within a city’s powers to enact a civil rights ordinance. Hutchinson Human Relations Comm., 213 Kan. 308. It also must concede that the state legislature has placed its stamp of approval on local anti-discrimination measures. See K.S.A. 12-16,106. Thus, the power reserved to the State to enact legislation of statewide concern uniformly applicable to all cities has not been construed as curbing local authority to enact and enforce anti-discrimination measures. The agency, however, would have the court limit a city’s authority to enforce anti-discrimination ordinances to circumstances not involving state employees. For this distinction, KDHR cites no legal authority but offers the rationale that “[t]he consequences of a state employee’s complaint of discrimination could affect not only individuals within the boundaries of the City of Topeka, but the rights of all state employees employed throughout the State of Kansas.” In other words, KDHR seems to be arguing that even when the home rule provision generally empowers a municipality to legislate in a field such as discrimination, the provision may prohibit specific legislation within that field. No precedent for this construction has been brought to the court’s attention. KDHR cites State ex rel. Schneider v. City of Kansas City, 228 Kan. 25, 612 P.2d 578 (1980), as a case similar to the present case. We do not find it to be similar or persuasive. Here, an individual, a state employee, sought redress against a state agency. In Schneider, the City of Kansas City sought to require the Board of Regents to obtain a building permit and conform to the city’s building codes. The conflict was between two governmental agencies. Thus, Schneider is distinguishable on its facts. In addition, governmental immunity was not raised or argued. Kansas City argued that under its home rule authority, it could enforce its building codes upon a state agency. In rejecting the city’s argument, this court noted that the State had adopted comprehensive building codes that mandated statewide compliance in the construction of school buildings, and they apparently “sometimes conflict with the codes adopted by Kansas City.” 228 Kan. at 30. For that reason, the city was precluded from enforcing its building codes in the construction of the KU Medical Center. This court reasoned that “[t]he adoption by the state legislature of comprehensive building codes would indicate that the legislature considers the construction of schools to be one of statewide importance as opposed to the local affairs of a municipality in seeking to control construction within its city limits. Insofar as institutions of higher learning under the control of the Board of Regents are concerned, we agree. . . . Due to the statutes requiring statewide uniformity in the application of the various building codes to construction projects at the various institutions of higher learning under the control of the Board of Regents, such construction does not fall within the purview of local affairs.” 228 Kan. at 32-33. This court noted that its decision was of limited application: “As stated by one prominent author: ‘No ordinance deals with an exclusively local matter and no statute regulates a matter of exclusively state-wide concern. Instead, the interests of the municipality and the state are nearly always concurrent.’ Clark, State Control of Local Government in Kansas: Special Legislation and Home Rule, 20 Kan. L. Rev. 631, 662 (1972). We also recognize that the same author does not recommend the approach and conclusion we reach today. Our decision, however, is limited to the parties and factual situation before us.” 228 Kan. at 33. This court’s opinion in McCarthy v. City of Leawood, 257 Kan. 566, 894 P.2d 836 (1995), presents a typical issue of a city’s home rule powers. Leawood enacted Ordinance 1027C, which conditions building permits and plat approval for properties within the K-150 Corridor on payment of impact fees. Property owners who would be affected by the ordinance challenged it on the ground that it was not authorized under home rule. In concluding that the ordinance did not exceed the city’s home rule power, the court stated and applied the following principles: “In determining whether a legislative enactment is uniformly applicable to all cities, such legislative intent should be clearly evident before a city’s right to exercise home rule power in that area is denied.” “A city ordinance should be permitted to stand unless an actual conflict exists between the ordinance and a statute, or unless the legislature has clearly preempted the field so as to preclude municipal action.” 257 Kan. 566, Syl. ¶¶ 1 and 2. In the present case, KDHR’s contention is not that the City’s right to exercise home rule power in the area of discrimination has been denied by legislative enactment of the KAAD that preempts the field and thereby precludes municipal action. Instead, KDHR’s contention is that legislative enactment of the KAAD does not preempt the field of discrimination but, seemingly by virtue of its self-policing provision, the KAAD shields the State and its agencies from liability under local anti-discrimination ordinances. We find no merit in this argument. Here, there is no conflict between the City’s anti-discrimination ordinance and the KAAD. The legislature has neither expressly preempted the field nor exempted employment discrimination violations from the Tort Claims Act. Absent such preemption or waiver of immunity, the City may enforce its employment discrimination ordinance against KDHR. The judgment of the district court is affirmed.	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The opinion of the court was delivered by Six, J.: This is a K.S.A. 60-2007(b) attorney sanctions case. David M. Duree’s pro hac vice admission to practice in Kansas was revoked and he was ordered to pay plaintiff Subway/Doctors Associates, Inc., (DAI) $408,445.25 by District Judge Janice D. Russell. Judge Russell found that Duree deliberately directed the preparation of a false 1989 partnership tax return to support his clients’ fraud counterclaims. Judge Lawrence E. Sheppard, after Judge Russell recused herself, denied Duree’s K.S.A. 60-259(f) motion to alter or amend, refusing to set aside Judge Russell’s order. Duree appeals from the rulings of both judges. Our jurisdiction is under K.S.A. 20-3018(c), a transfer on our own motion. We consider two issues: (1) Was Duree denied due process by the circumstances surrounding Judge Russell’s recusal, and (2) was there substantial competent evidence to support Judge Russell’s imposition of sanctions and revocation of Duree’s pro hoc vice admission? Finding no error, we affirm. FACTS A review of the facts in the underlying lawsuit is necessary to provide background as Duree’s objections to the sanctions unfold in this appeal. Defendants in the underlying lawsuit, Nancy Kessler and Dane Banks, contracted with DAI, the national franchisor of Subway sandwich shops, to become a Subway franchisee in Olathe. Kessler and Banks borrowed to finance construction and start-up. They immediately began to pay personal expenses from the borrowed funds, leaving the shop short of the estimated start-up costs. Lack of operating funds became an immediate problem. Kessler and Banks had seven different checking accounts at four different banks during their 19 months of operation. They bounced 224 checks and failed to deposit at least $112,219.38 in cash receipts during the first 13 months. As a result, the Subway shop’s bank statements did not accurately reflect performance. The most accurate documents reflecting performance were Weekly Inventory and Sales Reports (WISR’s). DAI requires all franchisees to produce WISR’s. Kessler received WISR training. She testified: (1) the forms were simple to fill out, and (2) the WISR’s she filled out were accurate. Kessler and Banks used the WISR’s in the shop’s original tax return prepared September 1990 by H&R Block. The original return showed gross receipts of $139,369 and a profit of $20,143 for the first 8Vz months of operation. The figures in the original return were primarily from the WISR’s. DAI filed a collection action against Kessler and Banks in 1990 seeking to recover unpaid franchise royalties and arrearages on a real estate sublease and an equipment lease. Kansas counsel for Kessler and Banks filed a counterclaim in February 1991. Duree was hired sometime in the summer of 1991. Matters against DAI accounted for about 20% of Duree’s practice. Judge Russell admitted Duree pro hac vice. (Duree is admitted to practice law in Missouri and Illinois.) He assumed the role as lead counsel. Kessler and Banks’ series of five amended counterclaims alleging various claims, including fraud and punitive damages, commenced. The fifth amended counterclaim, central to this appeal, contained 47 allegations of fraud and a claim for punitive damages. Kessler and Banks contended that DAI had fraudulently induced them into purchasing a Subway franchise doomed to fail because of a poor location and lack of promised operational support. Duree drafted the fifth amended counterclaim. Before filing, he decided to have an amended 1989 tax return prepared for the Subway shop. Duree hired Robert Seiffert, a CPA, from St. Louis. (Duree used Seiffert as an expert in five other cases against DAI.) They were personal friends and had a close working relationship, especially on Subway shop matters. Both Duree and Seiffert knew of the existence, use, and purpose of the shop’s WISR’s. Seiffert was given all of the shop’s financial documentation, including the WISR’s, but he prepared the amended return using only bank records. The 1989 amended return reported a loss based on gross receipts of $71,543, compared with $139,369 on the original return. Kessler testified that she and Banks failed to deposit at least half of their cash receipts in the bank. Seiffert also admitted later in his deposition that the bank deposits “for sure understate^] gross receipts.” Seiffert attached a disclaimer to the amended return stating: ‘We are not able to determine whether this information supplied to us is complete and accurate.” (He had been involved in the preparation of between 200 to 400 tax returns but could recall using such a disclaimer on only one or two other returns.) Intensive and hard-fought discovery continued for the next 2 years. Duree, his co-counsel, and his clients were sanctioned $1,000 for discovery abuse by the special master appointed by Judge Russell to conduct discovery. DAI submitted 267 statements of uncontroverted fact to support its motion for summary judgment on the fifth amended counterclaim. DAI argued that the reason Kessler and Banks failed in their business was not because of any misrepresentations made by DAI, but because of their own mismanagement. Most of the uncontroverted facts submitted by DAI came directly from either Kessler’s deposition or the franchise agreement. Kessler and Banks’ response to DAI’s summary judgment motion: (1) contained many accusations of unethical conduct by DAI, (2) did not comply with Rule 141(b) (1998 Kan. Ct. R. Annot. 176), (3) failed to controvert many of DAI’s statements of uncontroverted facts, and instead objected on the grounds of relevancy, materiality, or that the fact was misleading, and (4) moved for sanctions against DAI’s counsel Edward Dunham. (Duree later withdrew the motion for sanctions against Dunham.) In support of the request for sanctions against Dunham, Duree submitted an affidavit from Seiffert. Seiffert repeatedly attempted to controvert facts regarding the shop’s losses by pointing to the 1989 amended tax return. DAI had ignored the amended return because the copy provided during discovery was neither signed nor dated and did not appear to have been filed. Seiffert’s affidavit claimed that the amended return contained the “correct figures” and that DAI had attempted to mislead the court by relying on the original return. After reading Seiffert’s affidavit, DAI realized Duree was relying on the amended return to support the claim that the Subway shop lost money. Seiffert’s claim that DAI had relied on the wrong tax return was questioned at the summary judgment hearing. Sieffert testified in his deposition that he did not know if the amended return had been filed. (His deposition was taken before his sworn affidavit.) Judge Russell then questioned Duree about the amended return. Duree said that he did not know whether the return had been filed, calling it an “evidentiary detail.” Judge Russell responded, “I guess it disturbs me, though, that you are attacking another attorney’s ethics based upon a tax return that you can’t tell me if it has been signed or filed. That disturbs me.” Judge Russell was compelled to call a recess so that Duree and local counsel could confer and try to “get their story straight.” After the hearing, it was still unclear whether the amended return had been filed. Counsel for DAI pursued the matter. DATs motion to reopen discovery as to the 1989 amended return was granted. Meanwhile, Judge Russell issued her opinion granting summary judgment in favor of DAI on Kessler and Banks’ fifth amended counterclaim. She found the counterclaim totally without merit, stating: “It is not just that [defendants] cannot sustain their burden of proving the falsity of these statements; they have no proof whatsoever.” The Court of Appeals affirmed Judge Russell’s decision, citing her “thorough and careful examination” of a voluminous record, and characterizing her analysis of the uncontroverted facts as “disciplined.” Subway Restaurants, Inc. v. Kessler, No. 75,053, unpublished opinion filed February 21, 1997, rev. denied 262 Kan. 969 (1997). The Sanctions Hearings Judge Russell held an evidentiary hearing on various motions for sanctions against Duree related to the summary judgment response. After a lengthy proceeding, she imposed a $5,250 monetary sanction against Duree and his cocounsel. Judge Russell found the accusations of impropriety against DAI were unfounded and an attempt to “divert [the court’s] attention from the facts of the case.” Duree sidestepped the issue of the 1989 amended tax return, professing ignorance and characterizing the issue as a document production dispute. Judge Russell expressly reserved the question of whether further sanctions would be imposed with respect to the amended 1989 tax return. Additional discovery commenced. Duree testified that he had in fact directed Seiffert to prepare the 1989 amended return “on the basis of trial strategy” so that Duree would, not be “arguing to some jury and/or judge that the original tax return didn’t accurately reflect their financial condition. . . . [Cjase management was my primary objective.” Duree knew the contents of the original return and acknowledged that the original return showed a profit, which was inconsistent with his theory of the case. Seiffert admitted that he based the amended return on bank deposits and not on the WISR’s. The bank deposits understated both gross receipts and revenues. Seiffert had the WISR’s in his possession when preparing the amended return. He knew their purpose, but ignored them in his calculations. Kessler and Banks’ local counsel, SuLinda Jamison, had Banks sign the amended return, which she filed with the IRS in January, 1993. Ms. Jamison remained silent in Judge Russell’s courtroom as Duree professed he did not know whether the amended return had been filed. DAI moved to sanction Duree and his cocounsel Carter under K.S.A. 60-2007(b) and K.S.A. 60-211. DAI asked the district court to assess $408,445.25, the fees and costs incurred from the date Duree filed Kessler and Banks’ fifth counterclaim until the grant of summary judgment, more than 2 years later. DAI submitted affidavits from Ned Allen Ford, Distinguished Professor of Accountancy at Kansas University, and Geoffrey C. Hazard, Jr., Professor of Law at the University of Pennsylvania. The affidavits supported DATs claim that Duree had asserted the Kessler-Banks fraud claims in bad faith. Professors Ford and Hazard criticized the actions of Seiffert and Duree. Professor Hazard concluded that Duree “[c]onceived, directed and executed a plan whereby a false document, consisting of a falsified Federal Income Tax return, was prepared for introduction into evidence before [Judge Russell’s] court as evidence that his clients suffered economic loss, knowing that such proof was false and that it would mislead the Court and juiy.” Hazard also concluded that Duree’s conduct “justifie[d] the most severe professional sanctions.” Duree vigorously opposed DATs submissions. Professor Hazard was deposed. Duree moved to strike Hazard’s affidavit, arguing he was not a tax expert and his testimony was purchased by DAI. Duree submitted his own 17-page affidavit, swearing: “There is nothing wrong with the Amended 1989 Partnership Tax Return.” On March 8, and April 16, 1996, Judge Russell held hearings on DATs motion for further sanctions and revocation of Duree’s pro hoc vice status. Hazard testified. Duree’s expert was attorney John Nicholas Badgerow, chairman of the Johnson County Bar Association Ethics and Grievance Committee. Badgerow criticized Hazard’s opinion that Duree had violated the Model Rules of Profes sional Conduct (MRPC), because that opinion is reserved for the disciplinary committee and this court. Badgerow offered no opinion about whether Duree acted unethically. Judge Russell allowed Duree to take the stand and testify in narrative form. At the conclusion of Hazard’s, Badgerow’s, and Duree’s testimony, Judge Russell said, “I regard this as a veiy serious matter, and I want to review a number of documents and pleadings before I make a decision in the matter, so I’ll be taking it under advisement.” The Gerstle Visit As Judge Russell was in her chambers finishing the memorandum decision on DATs motion for sanctions, attorney John Gerstle, an old friend, stopped by. Judge Russell described the visit in her testimony before Judge Sheppard: “Well, I had been working on this opinion all day on Friday the 24th of May and probably part of the day on May 23rd. too, although I don’t specifically recollect that. ... “Late Friday afternoon — it was after 4:30, I’m sure — John Gerstle stopped by my office and said — and asked me if I wanted to go out and have a beer. And I told him that I was working on something, that I was within a few sentences of being done with it and when I finished, I would do that. He said. Well, what are you working on?’ And I said, Well, it’s one of my civil cases. You don’t know anything about it.’ And he persisted and said. Well, no, what are you working on?’ And I said, Well, it’s a case called Subway versus Kessler and Banks, and you don’t know anything about it. Never been an attorney in the case, you don’t know anything about this.’ And he said, ‘Oh, I do know about drat case.’ And I said, ‘How would you know anything about this? You’ve not been counsel in this case.’ He said, T represented Nancy Kessler.’ And I knew he didn’t represent her in this case. He had never entered an appearance in my case in any fashion. I said — because I had harbored these suspicions that there was a cocaine problem there, and because I knew Gerstle had a largely criminal practice, and, in fact, represents a lot of drug defendants, I said, ‘cocaine?’ And he said, ‘Oh, yeah. Big time.’ I said, Well, that doesn’t have anything to do with this issue.’ And he said, Well, I know’ — he said, Well, what are you doing?’ And I said, ‘There’s a motion for sanctions against Mr. Duree.’ He said, ‘Mr. Duree is a great guy. He’s a really nice guy. He paid my fees to represent Nancy Kessler.’ And that was, I think, the extent of the conversation.” Judge Russell issued her sanction opinion 1 week later. Duree then moved to alter or amend under K.S.A. 60-259(f). Judge Rus sell informed counsel just before beginning the hearing on the motion that she had decided to recuse herself because of an ex parte conversation. She was concerned about her continuing objectivity. The pending motions were reassigned to Judge Lawrence E. Sheppard. Counsel for Duree and DAI jointly requested that Judge Russell provide more information about the ex parte conversation. She agreed. According to Judge Russell, Gerstle’s stopping by her chambers was not unusual. He is someone she knows well. Gerstle testified he did not remember “precisely what we talked about or how we got into the subject matter.” He further testified that after they were “talking for a bit, it occurred to Judge Russell that since she was involved in the case, maybe it would be inappropriate to continue talking about [it].” Judge Sheppard’s Rulings Judge Sheppard denied the K.S.A. 60-259(f) motion, but later, upon a second amended motion, conducted a full evidentiary hearing. Judge Russell testified that the conversation with Gerstle had not influenced her decision. According to Judge Russell, not only had she already made her decision at the time of the Gerstle visit, but also, “[t]he opinion, apart from perhaps the last paragraph, was already in the computer.” She said, referencing the hearing on Duree’s motion to alter or amend: “I found it impossible to separate [the conversation with Gerstle] from the issues that I was called upon to decide on that day, and I therefore thought it was appropriate for me to recuse myself.” Judge Russell testified that she was not “feeling any hostile feeling or ill will toward Mr. Duree” at the time she made her decision to sanction him. Judge Sheppard upheld Judge Russell’s decision, reasoning: “In listening to her testimony, first of all, I believe Judge Russell’s testimony, not because she’s a colleague and a fellow jurist, but because she testified under oath forthrightly, without hesitation, and with obvious knowledge of the facts, and in a most unusual proceeding which allowed counsel to go into her subjective thought process as to how she arrived at her decision. She was most candid in that regard and unequivocating in terms of the examination by both counsel. She clearly had firm reasons, as set forth in her memorandum decision, for making the ruling of sanctions as to David Duree and her revocation of Mr. Duree’s pro hac vice status in this particular case. “The Court, then, finds that a reasonable person would believe, based upon the testimony of Judge Russell, that there was no influence or bias on her part with respect to the decision that was filed. It was a measured decision that she reached only after hearing the evidence in the case from the trial record and from all of the preceding proceedings.” DISCUSSION Due Process We initially review Judge Sheppard’s denial of Duree’s K.S.A. 60-259(f) motion to alter and amend. Our standard of review is abuse of discretion. See Webber v. Mefford, 43 F.3d 1340, 1345 (10th Cir. 1994); 11 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2818 (1995) (abuse of discretion is well-settled standard of review on motion to alter or amend). Duree claims that Judge Russell’s failure to recuse herself immediately after the ex parte communication with Gerstle denied him due process. Specifically, he claims: “Judge Russell’s ex parte communication with Gerstle and her admitted inability to be fair and impartial, as well as her admitted inability to separate her extrajudicial knowledge from the issues she was being asked to decide, unquestionably influenced her in deciding DATs motions for sanctions and to revoke Duree’s pro hac vice admission and deprived Duree of his right to have these most serious allegations of misconduct decided by a fair and impartial court.” Duree’s due process claim lacks merit. Throughout his brief, Duree misstates the record and misconstrues Judge Russell’s testimony about the ex parte conversation. Judge Russell admitted neither an inability to be fair and impartial nor an inability to separate extrajudicial knowledge from the issue of whether to award the sanctions. Judge Russell recused herself because she did not want to decide the motion to alter or amend the sanctions award. She unequivocally testified that she fairly and impartially decided the motion to award sanctions. She also testified that she did not harbor any ill will toward Duree. We have employed a two-part test in deciding whether to vacate a judgment because of a judge’s failure to recuse: (1) Was the judge required to recuse himself or herself under the Code of Judicial Conduct, Rule 601A Canon 3E(1) (1998 Kan. Ct. R. Annot. 455) before making the decision at issue; and (2) if so, was there actual bias or prejudice that warrants setting the decision aside? See State v. Logan, 236 Kan. 79, 86, 689 P.2d 778 (1984). A judge has a duty to recuse when impartiality might reasonably be questioned. Logan, 236 Kan. at 86. Applying the Logan standard here, Judge Sheppard found that a reasonable person would believe, based on the testimony of Judge Russell, that there was no influence or bias on her part. Duree has had an independent review of his claims. Judge Sheppard conducted a full evidentiaiy hearing to learn whether Judge Russell should have recused herself earlier. The hearing afforded Judge Sheppard an opportunity to measure Judge Russell’s demeanor, the quality of her memory, and her credibility. Judge Sheppard found that there was bad timing as to the Gerstle conversation but did not conclude that she had acted in anything but an impartial manner. Duree was afforded notice and a hearing at every stage of the process. He presented witnesses and was even allowed to testify in a narrative form at the hearing on sanctions. Judge Russell testified that she made her decision on admission revocation and monetary sanctions without considering the Gerstle conversation. Furthermore, Gerstle made positive statements about Duree, saying, “Duree is a great guy. He’s really a nice guy.” We find Judge Sheppard did not abuse his discretion in denying Duree’s motion to alter or amend. The Sanctions We next consider whether there was substantial competent evidence to support Judge Russell’s decision imposing a monetary sanction under K.S.A. 60-2007, and revoking Duree’s pro hac vice admission. See In re Marriage of Stockham, 23 Kan. App. 2d 197, Syl ¶ 1, 928 P.2d 104 (1996). The K.S.A. 60-2007 standard of review appears to have various descriptions, from “each case must be carefully considered on its merits and no universal rule should be applied,” Rood v. Kansas City Power & Light Co., 243 Kan. 14, 23, 755 P.2d 502 (1988), to “abuse of discretion,” Summers v. Montgomery Elevator Co., 243 Kan. 393, 399, 757 P.2d 1255 (1988), to “substantial competent evidence,” Giblin v. Giblin, 253 Kan. 240, 252, 854 P.2d 816 (1993). Giblin also holds that the court can determine de novo what the facts establish or if the K.S.A. 60-2007 requirement of a “reasonable basis in fact,” to be decided on a case-by-case basis, has been met. 253 Kan. at 254. Under K.S.A. 60-2007, sanctions were not a matter of discretion. (K.S.A. 60-2007 has been repealed; see L. 1997, ch. 173, § 38.) The Kansas Judicial Council comments to HB 2007 state: “The advisory committee recommends the repeal of 60-2007 in that it overlaps with, and contains somewhat different standards from, 60-211. K.S.A. 60-2007 was adopted in 1982 and at that time there were no provisions in 60-211 for assessing costs for frivolous acts. Subsequent amendments to 60-211 appear to remove the need for 60-2007.” See 2 Gard’s Kansas C. Civ. Proc. 3d, Commentary § 60-2007 (1997). K.S.A. 60-2007 directed that sanctions shall be imposed if the requirements of the statute were shown to be present: “(b) At the time of assessment of the costs ... if the court finds that a party, in a pleading, motion or response thereto, has asserted a claim or defense, including setoffs and counterclaims . . . without a reasonable basis in fact and not in good faith, the court shall assess against the party as additional costs of the action, and allow to the other parties, reasonable attorneys fees and expenses incurred by the other parties as a result of such claim, defense or denial. An attorney may be held individually . . . liable ... for such additional costs where the court finds that the attorney knowingly and not in good faith asserted such a claim, defense or denial or, having gained knowledge of its falsity, failed to inform the court promptly that such claim, defense or denial was without reasonable basis in fact.” Two separate requirements must be met before attorney fees and expenses may be assessed under K.S.A. 60-2007(b): (1) The claim asserted must be without a reasonable basis in fact; and (2) the claim was not asserted in good faith. Giblin, 253 Kan. at 252. A dismissal on summary judgment does not itself indicate that the claim was frivolous. Rood, 243 Kan. at 24. Every lawyer who loses on summaiy judgment should not be vulnerable to sanctions. Proof that Kessler and Banks’ fifth amended counterclaim was without a reasonable basis in fact is found in Judge Russell’s summary judgment opinion. Judge Russell first concluded that out of 267 statements of uncontroverted fact submitted by DAI, there was a good faith controversy concerning only four facts. None of the four were material to the fraud counterclaim. Further, Judge Russell found that there was no evidence to support Kessler and Banks’ claims, much less the “clear and convincing evidence” that is required to prove a fraud claim. Judge Russell repeatedly cited gaps in the evidence. For example: “[T]here is no evidence that defendants’ losses were caused by the fraud or misrepresentation of the plaintiff.” There was no way for Kessler and Banks to prove causation because their own expert testified that “the books and records they maintained are so chaotic that no business decisions can be made from them.” “Kessler admitted in her deposition that she has no proof of the falsity of some of the defendants’ alleged fraudulent statements.” “After five years of exhaustive discovery defendants still have no proof oí the falsity of these statements. It is not just that they cannot sustain their burden of proving the falsity of these statements; they have no proof whatsoever,” The defendants argument “simply flies in the face of contract law.” “Kessler admitted that she had no evidence to support her claim . . . .” “[Kessler] has no proof that either of these beliefs on her part are true.” “Defendants have had ample time to conduct discovery and come forward with proof of plaintiffs’ fraud and duplicity, but have not been able to do so.” (Emphasis added.) Judge Russell, in concluding, observed why Duree’s theory that DAI duped Kessler and Banks into signing a franchise contract which was to set them up to fail defied common sense. “The initial franchise fee for a Subway shop is low — only $7,500. Common sense would indicate that the franchisor’s principal hope for making money from the franchise agreement lies in the 8% royalty payments it is to receive from the gross weekly sales.” Judge Russell’s findings show that the fraud claims in the fifth amended counterclaim were brought without a reasonable basis in fact. Her summary judgment decision was issued June 9, 1995, almost 1 year before the ex parte communication with Gerstle. Good Faith We conclude the record reflects substantial competent evidence that Duree neither asserted nor pursued the fraud claims in good faith. Duree knew the fraud counterclaim was problematic as early as 1992, when he orchestrated the preparation of the amended 1989 tax return. He directed Seiffert to prepare the amended return and used it to oppose DATs motion for summary judgment. DATs motion for summary judgment was based, in part, on the fact that Kessler and Banks could not show any loss in their business. Duree used the 1989 amended tax return not only to attempt to controvert facts but also to persuade Judge Russell that DATs motion for summary judgment was frivolous. The Seiffert affidavit directly targets the problems with Kessler and Banks’ case. Seiffert tried to justify Kessler and Banks’ mismanagement and used the amended return to dispute DATs uncontroverted fact that the franchise was profitable. Duree’s response to the DAI summary judgment motion on behalf of Kessler and Banks admitted a few of the facts but attempted to deny most of them without any citation to where conflicting evidence might be found. Judge Russell was forced to carefully sort through Duree’s deliberate “red herring’’ distracting responses and the record to decide what facts were genuinely in controversy. At the time Duree was arguing DAI should be sanctioned for filing the summary judgment motion, he had not complied with Rule 141(b). He denied uncontroverted facts on behalf of his clients without any basis in the record to support the denials. Judge Russell found that Duree had attempted “to divert [her] attention from the facts of the case, to tiy to make [her] angry at plaintiff and plaintiff’s attorneys.” Such an attempt shows Duree’s lack of good faith. At the hearing at which Duree was sanctioned $5,250, the 1989 amended tax return first became an issue. Duree had questioned the ethics of DAI’s counsel in referencing the original 1989 return prepared at Kessler’s request by H & R Block. DAI took strong exception. The sanctions hearing would probably not have taken place but for Duree’s attempt to divert Judge Russell’s attention from the merits of the case by accusing DAI of impropriety. Duree’s predicament is self-induced. Knowledge and Intent Duree argues that to impose sanctions, findings that he acted intentionally, with actual knowledge that the amended return was false, are necessary. He asserts there was no evidence from which Judge Russell could infer that he had actual knowledge of the alleged falsity of the amended return. Duree confuses the legal standards for sanctions under K.S.A. 60-2007(b) with the MRPC. See Rule 226 (1998 Kan. Ct. R. Annot. 273). Judge Russell examined the MRPC in making her decision but explicitly noted that “ ‘[t]he power to regulate the bar, including the power to discipline its members rests inherently and exclusively with [the Supreme Court].'" (quoting State ex rel. Stephan v. Smith, 242 Kan. 336, Syl. ¶ 12, 747 P.2d 816 [1987]). Judge Russell used the MRPC for guidance, but not as authority to sanction Duree. Duree also observes there is no way for us to conclude that he had “actual knowledge of the alleged falsity of the Amended Return.” He makes this argument holding an L.L.M. in Taxation from Washington University School of Law (St. Louis). Moreover, Duree continues to advance the notion that there is nothing wrong with the 1989 amended return. He has argued many things on appeal, but he has not admitted that the amended return was essentially a false document. Instead, he points the finger in all directions, at his co-counsel, Robert L. Carter, at Judge Russell, at counsel for DAI, Edward Dunham, and even at his own clients. He implies that he was an unwitting participant in an unfortunate, but not illegal or unethical pursuit of fraud claims. The 1989 amended tax return was evidence of Duree’s misconduct. Judge Russell knew after ruling on the summary judgment motion that Kessler and Banks’ fifth amended counterclaim was without a reasonable basis in fact. Duree’s involvement in the preparation of the 1989 amended return showed Judge Russell that Duree understood the baseless nature of the claims. Judge Russell discovered that Duree had the amended return prepared to bolster Kessler and Banks’ claim. It then became clear that Duree himself understood the shortcomings of his clients’ case from the outset but tried to cover them up by fabricating evidence. The cover-up proved Duree had acted knowingly and not in good faith both in drafting the fraud counterclaim and in opposing DATs motion for summary judgment. The purpose of K.S.A. 60-2007 is to penalize willful misuses of the judicial process. Smith v. Dunn, 11 Kan. App. 2d 343, 348, 720 P.2d 1137 (1986). Judge Russell found that Duree tendered the 1989 amended return to the court as an accurate and reliable document. Judge Russell also found that the amended return was neither reliable nor correct in light of Kessler’s own testimony. Kessler testified that she failed to deposit more than half of the Subway shop’s gross receipts. In spite of his knowledge of Kessler’s creative personal financing and the existence of a reliable original 1989 return, Duree directed the preparation of the amended return. These factual findings supported Judge Russell’s legal conclusion that Duree asserted the fifth amended counterclaim without any good faith basis in fact or law. Her conclusion is supported by substantial competent evidence and is sufficient to award sanctions under K.S.A. 60-2007. District courts are encouraged to impose sanctions under K.S.A. 60-2007 to protect litigants from harassment in clear cases of violation of professional duty. Rood, 243 Kan. at 22. Our review of the voluminous record supports Judge Russell’s conclusions. (The record consists of 55 volumes..The 32 volumes of pleadings span 7,274 pages. The 23 volumes of transcripts exceed 1,500 pages.) She concluded in her memorandum opinion on sanctions: “It is the amended 1989 tax return that is at the heart of the motions at hand. Mr. Dunham charges that Mr. Duree manufactured the amended 1989 tax returns to serve as a basis for the defendants’ fraud claim. After carefully considering the evidence, the court has reluctantly concluded that Mr. Dunham is correct. “The inescapable conclusion from these facts is that Mr. Duree deliberately caused to be prepared a false tax return for use in this litigation.” Duree does not challenge the reasonableness of the fees, the hourly rates, the amount of work performed, or the expenses claimed. Duree’s position is that the monetary sanction is not proper. The $408,445.25 includes, among other items, attorney fees: Wiggin & Dana (Dunham’s firm), $272,263.51, and Turner & Boisseau (Kansas counsel), $74,077.03. Expenses included: accountant Arthur Anderson, $35,141; video taping, $3,416.20; and court reporters, $22,276.14. We observe that all litigation must be orchestrated on a common dominant theme, the pursuit of truth. Candor and credibility, are the twin professional characteristics that mark a true officer of the court. In conclusion, the Friday afternoon chambers visit between two old friends requires comment. As Judge Sheppard noted: “The timing of the discussion is important .... Had it occurred the day after filing of the memorandum decision, there would have been no real reason or opportunity to complain about the substance of the ruling. As it is, the timing was absolutely terrible in terms of eroding confidence in the independent exercise of judgment on the part of Judge Russell.” Duree was Kessler and Banks’ lead counsel in the civil case. Gerstle had been counsel for Kessler on her forgery charges, her plea sentencing, and her probation revocation hearing for allegedly failing to submit to a drug screen. Duree paid part of Gerstle’s fee for representing Kessler on the forgeiy charges. Gerstle and Duree discussed Gerstle’s criminal representation of Kessler. The gist of the discussion, according to Gerstle, was that Duree wanted Kessler to have skilled criminal representation, because if she had a criminal record or particularly if she went to jail, it would be harder for Duree to successfully prosecute the civil action. Gerstle told Judge Russell, “Mr. Duree is a great guy. He’s a really nice guy. He paid my fees to represent Nancy Kessler.” Judge Russell’s candor in informing counsel of her ex parte conversation with Gerstle is commended. However, the ex parte conversation was clearly inappropriate. See Rule 601A Canons 1, 2A, and 3B(7) (1998 Kan. Ct. R. Annot. 449, 451-52). Gerstle’s professional curiosity and persistent questioning of Judge Russell as she sat behind her word processor was also clearly inappropriate. See MRPC Preamble: A Lawyer’s Responsibilities, Scope, and 3.5(c) (1998 Kan. Ct. R. Annot. 274-78, 360). Affirmed.	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The opinion of the court was delivered by Fatzer, J.: The point at issue in this appeal is whether a knocked down or bent over stationary stop and one-way street sign, installed by the city in the street at the intersection of two designated one-way through streets, constitutes a street defect under Kansas law. For reasons hereafter stated, we hold that it does. The plaintiff, Beulah E. Grantham, commenced this action against the city of Topeka and Glenda Huntsman and George Stanley, the driver and the owner, respectively, of the automobile which collided with the plaintiff’s automobile as hereafter stated. The city filed a separate answer which denied all liability for plaintiff’s injuries and damages, and subsequently filed a motion for summary judgment contending as a matter of law, it was immune from tort liability. The motion was heard upon the facts admitted by the pleadings and the city’s answers to interrogatories served by the plaintiff pursuant to K. S. A. 60-233. The district court sustained the motion upon the ground that the maintenance of stop and one-way street signs is a part of the regulation of trafile falling within the police power of the city and is, therefore, a governmental function for which the city cannot be called to account. There is no dispute as to the facts, and they are briefly summarized: On December 12, 1962, the plaintiff was driving north on Tyler Street when her automobile collided with an automobile driven by Glenda Huntsman, traveling east on Huntoon Street. The collision occurred at approximately 11:45 a. m. in the northeast quadrant of the Tyler-Huntoon intersection. Tyler is a one-way through street northbound and Huntoon is a one-way through street eastbound. Both streets are so designated by ordinances of the city of Topeka, and are protected from cross-street traffic by stop signs for several blocks either side of the intersection. Prior to the time of plaintiff’s accident, the city had placed in Tyler Street a stationary stop sign which also had affixed to it a one-way street sign, requiring northbound Tyler Street traffic to stop before proceeding into the intersection and indicating that Huntoon was a one-way eastbound street. The plaintiff was unfamiliar with the intersection, having never traveled north on Tyler prior to the accident. When she entered Tyler Street from an intersecting east-west street several blocks south of the intersection, she was required to stop before proceeding north on Tyler. On December 11, 1962, another accident occurred at the TylerHuntoon intersection at about 3:00 p. m. in which the stop and one-way street sign was knocked down or bent over so that it could not be seen by a driver of a northbound automobile on Tyler. The Topeka police department investigated the accident of December 11, 1962, and the admissions of the city established that it had notice of the defective stop and one-way street sign from 3:11 p. m. on that date, to 11:45 a. m. on December 12. No other sign was placed at the intersection for more than twenty hours prior to plaintiff1s accident, during which period of time the stop and one-way street sign was not in place. Between 1:00 p. m. and 3:00 p. m. on December 12, 1962, following the plaintiffs accident two members of the traffic engineering department removed the damaged sign and installed a new stop and one-way sign at the intersection. Section 26-801 of the Code of the City of Topeka, 1963, and stipulated by the parties as being in effect on December 12, 1962, reads: “(a) The streets and parts of streets described in the schedule appearing as Section 2 of this ordinance ([26-802] designating Tyler and Huntoon and other streets as one-way streets), are hereby declared to be through streets, except at those intersections where the traffic on the through street is controlled by traffic signals or stop signs. It shall be the duty of the City Commission to designate on which of two through streets a stop sign or signs shall be placed and maintained. “(b) Whenever any through street shall have been designated by ordinance, it shall be the duty of the Traffic Engineer to place and maintain a stop sign on each and every street intersecting such through street or intersecting that portion thereof described and designated as such by any ordinance, unless traffic at any such intersection is controlled at all times by traffic-control signals.” Section 26-701 reads: “(a) Whenever any street in the city shall have been designated as a one-way street or alley, by resolution of the City Commission, the Chief of Police shall place and maintain signs giving notice thereof. No regulation of traffic shall be effective unless and until such signs are in place. Signs indicating the direction of lawful traffic movement shall be placed at every intersection where movement of traffic in the opposite direction is prohibited.” The plaintiff’s suit was not brought upon the theory that the city failed to properly regulate traffic, or that it failed to exercise its discretionary right to establish traffic-control regulations at dangerous intersections, or to erect or not erect, or to remove, stop signs by ordinances duly enacted. The action was based upon negligence on the part of the city of Topeka for breach of its legal duty to keep its streets in a condition reasonably safe for their intended use. The plaintiff claims that the failure of the city to maintain the stop and one-way street sign, after having notice that it was knocked down or bent over, constituted a street defect against which the defense of governmental immunity does not apply. She further claims that the failure of the city to replace within a reasonable time or warn concerning the sign was negligence on its part, and contends the district court erred in failing to hold that the issues of the negligence of the city in failing to replace or warn concerning the sign, notice of the defective street, and proximate cause, were questions of fact to be determined by a jury. The plaintiff’s first contention that the maintenance of stop and one-way street signs is not a part of the regulation of traffic and hence is not a governmental function, cannot be sustained. This court has consistently held that the legislature has plenary power over streets and highways, which may be exercised by the state, or delegated to local political subdivisions or municipalities in the manner prescribed. (Heller v. A. T. & S. F. Rld. Co., 28 Kan. * 625; State, ex rel., v. St. Louis-S. F. Rly. Co., 124 Kan. 433, 260 Pac. 980; State, ex rel., v. State Commission of Revenue and Taxation, 163 Kan. 240, 247, 181 P. 2d 532.) Means selected by the state or a municipality in the control and regulation of traffic under the police power is a governmental function and includes such things as prescribing one-way through streets, establishing express thoroughfares, providing medial dividers, barriers, curbs, and other traffic-control devices, prohibiting left turns, prohibiting or regulating parking, and restricting the speed, weight, size and character of vehicles allowed on certain streets and highways. (Riddle v. State Highway Commission, 184 Kan. 603, 611, 339 P. 2d 301; Moore v. State Highway Commission, 191 Kan. 624, 383 P. 2d 549; Jones v. Garrett, 192 Kan. 109, 386 P. 2d 194; Watson v. City of Topeka, 194 Kan. 585, 589, 400 P. 2d 689; Brock v. State Highway Commission, 195 Kan. 361, 404 P. 2d 934.) Likewise, we reject the city’s contention that a municipality’s liability with respect to a street defect cannot extend beyond that of a township, county or the state under K. S. A. 68-301 and 68-419. The city cites no statute, and we know of none, which imposes liability upon a municipality for injuries resulting from defects in a public street. In these and other areas, the liability of municipalities has been judicially established in a long and consistent line of decisions, commencing, it may be said, with the case of City of Leavenworth v. Casey, McCahon’s Rep. 122, (1 Kan. * 124) decided by the Territorial Supreme Court, in which the city was held responsible for injuries resulting from the negligent construction of a sewer. (Jansen v. City of Atchison, 16 Kan. 358, 381.) Perhaps the first case this court considered was City of Topeka v. Tuttle, 5 Kan. 311, in which the petition alleged the city negligently left one of its streets out of repair, whereby the plaintiff suffered injury; and on an objection that the petition was insufficient, this court held that it was sufficient. A few of our many cases are hereafter noted. No sound reason exists to apply statutes relating specifically to the liability of a township, county, or the state for a defective highway or bridge in determining a municipality’s liability for a defective street, since the legislature can speak with drastic clarity whenever it wishes to impose or limit the liability of municipalities for negligence in the performance of a governmental function. It is a general rule of law in this state that a municipality is not liable for negligent acts of its officers or employees in the performance of a governmental function unless such liability is expressly imposed by law. (Wray v. City of Independence, 150 Kan. 258, 92 P. 2d 84; Rhodes v. City of Kansas City, 167 Kan. 719, 208 P. 2d 275; Stolp v. City of Arkansas City, 180 Kan. 197, 303 P. 2d 123; Rose v. Board of Education, 184 Kan. 486, 337 P. 2d 652; Parker v. City of Hutchinson, 196 Kan. 148, 410 P. 2d 347.) The rale is based on the doctrine that the state is not liable except as made so by statute and that municipalities, when acting in a governmental capacity, are arms of the state. (Perry v. City of Wichita, 174 Kan. 264, 255 P. 2d 667; Weast v. Budd, 186 Kan. 249, 253, 349 P. 2d 912.) However, exceptions have been engrafted into this general rule by decisions of this court to the effect that a municipality is liable (1) where its conduct results in creating or maintaining a nuisance (Jeakins v. City of El Dorado, 143 Kan. 206, 53 P. 2d 798; Steifer v. City of Kansas City, 175 Kan. 794, 267 P. 2d 474; Adams v. City of Arkansas City, 188 Kan. 391, 362 P. 2d 829), and (2) for its negligent and wrongful acts (a) when performing in a proprietary capacity (Dunn v. City of Emporia, 181 Kan. 334, 311 P. 2d 296), and (b) for failure to keep its streets reasonably safe for public use. With respect to the latter, the general rule relating to public streets is stated in Perry v. City of Wichita, supra, as follows: “. . . An exception to the general rule also has been recognized with respect to defects in public streets on the theory they are necessary for the public use at all times and under all conditions. (Harper v. City of Topeka, 92 Kan. 11, 139 Pac. 1018; Hibbard v. City of Wichita, 98 Kan. 498, 501, 159 Pac. 399; Foster v. Capital Gas and Electric Co., supra; Smith v. Kansas City, 158 Kan. 213, 146 P. 2d 660.)” (1. c. 269.) The standard fixed by law concerning a city’s duty to maintain its streets may be stated thusly: A city rests under the positive legal duty to keep its streets in a condition reasonably safe for their intended use, and it is liable in a civil action for injuries resulting from neglect to perform this duty. Streets must be such that the traveling public may use them and be reasonably secure. The decisions of this court illustrating the foregoing rule are legion; a few of them are: City of Wellington v. Gregson, 31 Kan. 99, 1 Pac. 253; Gould v. City of Topeka, 32 Kan. 485, 4 Pac. 822; City of Olathe v. Mizee, 48 Kan. 435, 29 Pac. 754; Klipp v. City of Hoyt, 99 Kan. 14, 160 Pac. 1000; Evans v. City of Hutchinson, 99 Kan. 477, 162 Pac. 342; Blankenship v. City of Caney, 149 Kan. 320, 326, 87 P. 2d 625; Smith v. Kansas City, 158 Kan. 213, 217, 146 P. 2d 660; Perry v. City of Wichita, supra, and Snyder v. City of Concordia, 182 Kan. 268, 320 P. 2d 820. What constitutes an actual street defect was defined in Loftin v. City of Kansas City, 164 Kan. 412, 190 P. 2d 378, where it was held: “To be actionable, a defect in a street must be a condition or object therein which makes the street unsafe and dangerous for travel and use and is the legal cause of the injury of which complaint is made.” (Syl. ¶ 1.) In the final analysis, whether a particular condition or situation is a street defect depends upon the facts and circumstances of each case. (McCollister v. City of Wichita, 180 Kan. 401, 304 P. 2d 543; Taggant v. Kansas City, 156 Kan. 478, 134 P. 2d 417.) It is not necessary that a defective condition be in the surface of the roadway; that is, in the pavement or the curb and gutter. If the condition is such that it affects the street to the extent that it is not reasonably safe for its intended use, a defective street condition exists. (Burns v. Emporia, 63 Kan. 285, 287, 65 Pac. 260; Turner v. City of Wichita, 139 Kan. 775, 33 P. 2d 335.) In the Turner case a limb from a tree located in the parking near the intersection of two streets fell and killed the plaintiff’s son while he was proceeding on the street, and Mr. Justice Thiele, speaking for the court, said: “. . . Whatever might be said about maintenance of trees in a public park being a governmental function, here the tree stood in the street, and if the tree was defective, the defect must be treated similarly to other defective conditions in the street. . . .” (1. c. 777.) It was further said: “. . . there is no liability, unless the condition of the trees or the limbs or branches thereof is so patently bad and has existed for such length of time that permitting them to remain is equivalent to an utter disregard for the safety of the traveler in the street. . . .” (1. c.778.) (Emphasis supplied.) The city argues that the maintenance of stop and one-way street signs is an aspect of traffic regulation falling within the sphere of those activities which governmental immunity applies. It urges that Freeburne v. City of Emporia, 176 Kan. 503, 505, 271 P. 2d 298, and Phillips v. State Highway Comm., 146 Kan. 112, 68 P. 2d 1087, support its contention that the sign in question was not a street defect. The cases are not helpful to the city. In the Freeburne case the plaintiff bumped his head on a traffic light control box installed on a pole near the curbline when he stepped up from the street to the sidewalk. The metal box housed the electrical apparatus for the control of traffic lights located in the intersection. The plaintiff conceded that the placing of the traffic control box on the pole was a governmental function and the question was whether, under the facts pleaded, the metal box constituted a street defect. On the basis of the record, this court concluded the plaintiff failed to allege facts sufficient to establish that the traffic control box was in fact a street defect. The opinion stated the court took judicial notice of the fact there were countless and untold devices similar to the one there involved, such as stationary stop signs and one-way street signs and many other enumerated signs, which might be considered defects in city streets. However, the opinion restricted its application solely to the traffic control box there involved, and expressly stated this court was not passing upon the status of the enumerated signs as street defects. In the Phillips case, supra, and a second appeal reported in 148 Kan. 702, 84 P. 2d 927, the action was brought under the provisions of G. S. 1935, 68-419 (now K. S. A. 68-419) known as the defective highway statute. Weeds had been permitted to grow so high as to hide a stop sign erected in the boundary of the state highway, at the intersection of a secondary road (township or county) and the state highway. The plaintiff came from the south on the secondary road and as her car entered the intersection of the two roads, a collision occurred between her car and one being driven west on the state highway. She contended that the fact the stop sign erected to warn travelers coming from the south on the secondary road of their near approach to the state highway, was hidden from view by a dense growth of weeds, constituted a statutory defect on the highway which subjected the commission to liability. At the time of the accident another statute directed that stop signs be erected at entrances of intersecting state and federal highways. It was held that since the statute required that stop signs be erected only at the intersecting entrances of state and federal highways, not at intersecting entrances of all public roads, this corut had no right to enlarge the scope of the statute by judicial interpretation; that the liability of the commission was statutory, and actual negligence of the commission or its agents and employees was not an essential element of the action, and that since the commission had committed no breach of statutory duty with respect to the maintenance of the stop sign, the plaintiff could not prevail. It is obvious the Phillips cases are not in point. In the first place, the court was not required to determine whether the hidden stop sign was or was not a defect in the state highway; in the second place, this court has often declared that the liability of the state, its counties and townships, for damage caused by a defect in a public road, is not founded on negligence but is based specifically and exclusively on K. S. A. 68-301 and 68-419. (Rakestraw v. State Highway Comm., 143 Kan. 87, 53 P. 2d 482.) In the instant case, there is no statute which creates a right of action against the city; its liability, if any, is based upon its negligent failure to keep its public streets in a condition reasonably safe for their intended use, and is governed by the well-known legal standards of conduct known in the law of negligence. (Dunn v. City of Emporia, supra.) The city argues the sign was no physical part of the street and was not used for street purposes. We do not agree. The record shows that the stop and one-way sign was installed by the city in the parking near the curbline of the traveled portion of the street. A street, like a public highway, is the entire way between the property lines of the abutting owners. Usually, it is dedicated for street purposes and although the title to the street is placed elsewhere, the control and maintenance of the street is vested in the governing body of the city. Generally speaking, a street consists of three parts: (1) a roadway or vehicle-travel portion, usually in the middle, or the whole street may be the roadway; (2) the parking on one side or both sides of the roadway, and sometimes there are no parkings, and (3) sidewalks which are usually close to the property line or sometimes at the curb, and there may be no sidewalks. (Albert B. Martin, Sovereign-Governmental Immunity, League of Kansas Municipalities, 1965, pp. 37, 38.) See, also, Paola v. Wentz, 79 Kan. 148, 98 Pac. 775; Ditzen v. Kansas City, 138 Kan. 830, 28 P. 2d 739, and Heinzelman v. State Highway Commission, 188 Kan. 129, 360 P. 2d 1114. Where, as here, the city has exercised the discretion vested in it to designate through streets and provide for stop signs at each intersection facing the subordinate street, except at those intersections where the traffic on the through street is controlled by traffic signals or stop signs as provided in Section 26-801 of the city ordinance, the sign becomes an important part of the physical appurtenance of the street and is used for street purposes. The rule is stated in 18 McQuillin, Municipal Corporations, 3d ed., § 53.42, as follows: “. . . Stop signs become important parts of the physical appurtenances of the street, and failure of a city to put a sign back up after a vehicle accidentally knocked it down has been regarded as a failure to maintain public highways and streets in reasonable repair. A city may be held responsible for an automobile collision resulting from its negligent failure to maintain a stop sign at an intersection of a street designated by ordinance as a through street.” (pp. 235, 236.) The purpose of designating certain streets as through streets is to expedite traffic insofar as speed is consistent with safety, and to protect travelers on intersecting and through streets from the dangers of collision. Both Tyler and Huntoon Streets had been accorded official priority by ordinances of the city creating them one-way through streets and providing for stop signs at each intersection, except that Tyler Street traffic was required to stop before entering or crossing Huntoon. The stop and one-way sign was installed for the purpose of making the street safe for travel, but it was not in its normal or usual position in the street at the time of plaintiff’s accident; it had been knocked down or bent over and served no purpose to regulate traffic or warn and command persons to stop before proceeding into the Huntoon intersection. That the sign was defective is evident, and being a physical part of the street, it must be treated similar to other defective conditions in the street. (Turner v. City of Wichita, supra.) Under the record presented, it may not be said as a matter of law that the city did not have notice of the condition and opportunity to correct it. Whether the city’s failure to replace or warn concerning the knocked down or bent over sign within the 20-hour period was negligence, and whether it was the proximate cause of plaintiff’s accident, are questions of fact to be determined by a jury. In Dunn v. City of Emporia, supra, it was said: “. . . The liability of a city for negligent conduct is founded upon the well-known legal standards of conduct known in the law of negligence. The city has a legal duty to use that degree of care, caution, diligence and skill as common prudence directs for the protection of members of the public from injury. The failure of such duty in an ordinary and natural sequence which causes unintended injury to a member of the public gives rise to liability in an action for negligence.” (1. c. 339.) In Evans v. City of Hutchinson, supra, it was said: ". . . The ordinary rule, however, as shown by cases cited in the notes referred to, is that liability depends on whether an injury such as that complained of should have been anticipated, by the exercise of reasonable prudence, as the result of the defect in question. Each case turns to a large extent upon its own peculiar features . . . Whether such an accident ought, by the use of a fair degree of diligence, to have been anticipated and guarded against is a matter about which reasonable minds may differ, and therefore the question of the liability of the city was properly submitted to the jury. . . “. . . where reasonable minds may differ as to the dangerous character of a defect in a street, the doubt may, not must, be given to the city authorities, by the tribunal charged with passing on the matter. (Klipp v. City of Hoyt, ante, p. 14, 160 Pac. 1000.)“ (1. c. 479.) This court has never held that municipalities are insurers for the traveling public, but it is well settled they have a positive legal duty to keep their streets in a condition reasonably safe and convenient for the traveling public and they have no right or discretion to evade or avoid that duty. (Gould v. City of Topeka, supra.) In view of the foregoing, we deem it unnecessary to discuss other points advanced by the plaintiff. The order sustaining the defendant’s motion for summary judgment is reversed and the case is remanded to the district court for a trial upon the issues framed by the pleadings. It is so ordered. Parker, C. J., and Price, J., dissent.	[ -16, 126, -16, 110, 26, 64, 18, 26, -7, -95, -75, 83, -83, -53, 17, 117, -1, -67, -111, 11, -11, -89, 23, -86, -106, -77, -61, 85, -71, -39, 116, 118, 76, 48, 74, -43, 6, 74, -115, 92, -50, -66, 11, -12, 89, -53, -96, 122, 32, 7, -47, -113, -13, 42, 24, -57, -88, 40, 75, -83, -47, -80, -119, -107, 126, 6, -77, 36, -100, -121, -36, 11, -112, 57, 8, 120, 114, -90, -46, -12, 109, -119, 8, -90, 98, 35, 17, -83, -84, -72, 14, -16, 45, -89, 16, 57, 97, 41, -9, -107, 125, 20, 1, 122, -2, 69, 91, 40, 11, -118, -80, -103, -17, 112, -110, 117, -17, 1, 51, 113, -50, -12, 95, -107, -78, 31, 79, -76 ]
The opinion of the court was delivered by Harman, C.: The controversy here centers on the medical evidence in a personal injury suit wherein plaintiff was awarded damages in the amount of $20,108.00 by the jury. Judgment against defendant was entered upon the verdict, defendant’s motion for new trial was overruled and he appeals. On July 6, 1960, plaintiff, a practicing dentist, while driving an automobile in Wichita was struck by defendant’s automobile at an intersection. Plaintiff’s car was spun clockwise and he was thrown out of it landing on his back. He was checked and x-rayed immediately at a local hospital and a lady companion, who was a passenger in the car with him, was hospitalized for some time. Plaintiff testified he was sore all over for approximately two weeks and he did not work during this time because of the soreness. Then he lost most of it except in the lower part of his back. About a month or six weeks after the collision plaintiff began having periodic episodes with his back, which occurred about every three months. He would get a very sharp catch in his back while stooping and be unable to straighten up for several minutes. The pain would remain for several days with his back stiff. During this time he had to avoid bending his back because of the pain. Plaintiff felt the pain would go away but the episodes occurred more frequently, from six weeks to two months apart, and thereafter closer. This interfered substantially with the amount of dentistry he could perform and was reflected in his annual income. Plaintiff in 1962 consulted a doctor who had previously given him regular physical examinations and this doctor referred him to an orthopedic specialist who examined him August 1, 1962, and again in 1964. An osteopath physician examined him December 13, 1963. Prior to the collision and at the time of his regular physical checkup in the year 1959 plaintiff had a slight irritation or back sprain which he mentioned to the examiner but nothing was ever done about it and it never interfered with his work. His weight had fluctuated from time to time. At the time of the collision July 6, 1960, he weighed 190 pounds, at Christmas of that year 172 and he had since put on weight to the point where he was described as being moderately obese and his doctors had indicated such condition could add to the aggravation of his injury. Several lay witnesses testified as to plaintiffs physical condition extending over a period of time prior to and after the collision. These included a certified dental assistant who worked for him, his mother who resided with him for a period of time, and a police officer who hunted and fished and also worked with him extensively. All of these described a substantial difference in his physical activities which change they related to the time of the collision. For a month or so after the collision plaintiff visited the lady passenger who was hospitalized as a result of the collision and he indicated to her he thought he had hurt his back in the collision. Plaintiffs dental assistant, his mother, and later the woman to whom he became married, urged him to see a doctor about his back long before he did. Meanwhile he had used heat pads, application of wet heat and anacin and other medicine to alleviate his pain. The orthopedic specialist testified as to his physical findings based on his examinations of plaintiff, including evidence of back discomfort, and that he had recommended some conservative treatment including weight reduction and medication for the relief of muscle spasm. He also found some narrowing of certain inter-vertebral spaces which, according to x-ray examination, had existed prior to the collision. The doctor was asked these questions and gave these answers: “Q. Doctor, based upon the historical information you received from the patient at the time of your examination, based further on your physical findings and examination of the patient, can you state with any medical certainty that this man did receive at least some aggravation to his back condition as a result of the accident? “A. Yes, I believe I could make this statement. Dr. Rowe stated that he was not having difficulty that required x-rays or medical treatment prior to the accident; he gave a history of having sustained what he thought was a minor accident at the time but it was enough to secure x-rays. I saw him sometime thereafter for a revaluation. I would not say that the x-rays findings were a direct result of the accident but the history is suggestive that the condition has worsened since the accident. “Q. And consistently began as a result of the accident? “A. Yes, I feel I could say that.” This doctor further testified that the history is very important in this type of case. The osteopath physician also testified as to his findings of disability in plaintiff’s back resulting from his examination and he further testified: “Q. Doctor, assuming that there had been — strike that. First of all were you advised by him in his history that he was involved in [an] automobile accident on July 6, 1960? “A. Yes. “Q. Assuming there was some sort of a pre-existing weakness in Dr. Rowe’s back at and before the time of the accident; assuming further that prior to the accident he had noticeable attacks; also assuming that at the time of the accident he was at a much lower weight level or under 200 pounds, and that during or soon following the accident he suffered disabling attacks with his back; would it be consistent with your findings that the accident, which he complains about, was a considerable contributing factor to the disabilities which he suffers? “Mb. Newkirk: I object to this as calling for speculation of the witness and it has no probative value. “The Court: Overruled. “A. Yes, I think it would have a bearing on it. “Mb. Fettis: You may examine. “Cross-Examination by Mr. Newkirk. “Q. Now, you answered Mr. Fettis’ hypothetical question; that was the question where he asked you to assume certain things. You answered that you thought it would be consistent that some of his complaints were in some fashion related to the automobile accident two and one-half years before your examination. What was there in the hypothetical question that permitted you to give a medical opinion that there was a connection? “A. The recurrent episodes of disability and pain he has had since the accident occurred. “Q. And I take it the fact he told you he had no trouble before? “A. No, he stated he had mild back pains on occasions before but not to the extent they occurred after the accident. “Q. As you understood it from him, he had back pains before but since the accident the occurrences were of more severity? “A. That is right. Q. Now, was there anything else in the question that Mr. Fettis asked you which enabled you to form this opinion you gave, other than this history? “A. Other than the history of the patient himself and his physical examination and the physical findings. “Q. All right. “A. For example the limitation of motion of the back with spasticity of the muscles. “Re-Direct-Examination by Mr. Fettis. “Q. Doctor, although you cannot give firm medical opinion in support of these matters as you have just told Mr. Newkirk, nonetheless your medical findings were consistent with the history recited to you, is that correct? “Mr. Newkirk: We don’t try lawsuits on consistencies. We try it on reasonable medical probability given by experts who are in a position to give such an opinion. “The Court: Objection overruled. The witness may answer. “A. Well, the physical findings were such that the patient did definitely have a back disability and how you can correlate that with the accident, I think that would be an assumption, apparently.” Defendant made no objection to the testimony of the orthopedic specialist at the time it was given but at the close of all the evidence made the following motion which was overruled by the court: “At the close of all the evidence the defendant moves to strike that portion of the medical testimony which purports to connect the plaintiff’s present complaints and disabilities, if any, with the accident for the reason there is no medical evidence of probative value to support such a causal connection.” Defendant requested the court to give the following instruction: “Under the law a party who claims damages for personal injury has the burden of establishing his claim by evidence of reasonable medical probability. The jury may not engage in speculation nor conjecture nor may you rely on medical evidence of mere possibility.” This request was denied. The court gave other instructions including instruction No. 5 as follows: “One who has a weakened or pre-existing condition of the body and who is injured by the negligent act of another, is entitled to damages from the wrongdoer if the prior existing condition is aggravated or made more severe by reason of the negligent act of the wrongdoer. “If you find that the plaintiff’s prior existing condition was not aggravated by the collision, then plaintiff can recover nothing. But if you should find that his prior existing condition was aggravated by the collision, and that plaintiff himself was not negligent, then you should allow to plaintiff such sum of money as will fairly compensate for the aggravation of his condition. In estimating the amount of recovery you are to consider his physical condition just before the collision, his present physical condition, and how much the injury will impair his health and income earning capacity, if at all, in the future. And you may also allow the amount of such doctor bills as you find were reasonably incurred as a result of the collision. You are also to consider and allow the amount of damage to his automobile which has been stated as $560.00. “You may consider the physical pain and suffering, if any, to which plaintiff was or may in the future be subjected as a result of the collision. After considering the entire case you may allow such sum of money, as in your opinion, will be a fair and full compensation for the aggravation or injuries sustained.” Defendant contends there was not sufficient competent medical evidence to support any finding that the collision was causally connected with the physical complaints, and that the court erred in receiving and refusing to strike the medical testimony which was based only upon a possibility that the plaintiff’s condition might have resulted from the collision, and that the court erred in failing to give defendant’s requested instruction and in giving instruction No. 5. Defendant specifically makes no claim of excessive verdict but he does contend the crucial issue, in the light of the amount of the verdict, was whether plaintiff suffered any form of permanent injury as a result of the collision, conceding that his special damages amount to $630.00 and that he was disabled for about two weeks, and defendant contends that the jury was permitted to speculate that plaintiff did sustain permanent injury as a result of the alleged trial errors. Defendant argues the medical testimony amounted only to a possibility that plaintiff’s condition at the time of the trial might have resulted from the collision and that causation was not shown by evidence of sufficient probative value. Defendant cites the conclusion of the annotator at 135 A. L. R. ¶ II, p. 517, as follows: “It appears to be well settled that medical testimony as to the possibility of a causal relation between a given accident or injury and the subsequent death or impaired physical or mental condition of the person injured is not sufficient, standing alone, to establish such relation. By testimony as to possibility is meant testimony in which the witness asserts that the accident or injury ‘might have,’ ‘may have,’ or ‘could have’ caused, or ‘possibly did’ cause the subsequent physical condition or death or that a given physical condition (or death) ‘might have,’ ‘may have,’ or ‘could have’ resulted or ‘possibly did’ result from a previous accident or injury — testimony, that is, which is confined to words indicating the possibility or chance of the existence of the causal relation in question and does not include words indicating the probability or likelihood of its existence. . . .” And defendant further cites a line of cases typical of which is Bearman v. Prudential Ins. Co. of America, 186 F. 2d 662 (10th Cir., Kan., 1951). The question in that case was whether the death of an insured from coronary occlusion resulted from accidental injury some six weeks prior to death or from disease. Medical witnesses testified that trauma may produce a coronary occlusion and that the injury sustained by the insured might have contributed to his death but they were unwilling to state that the accident caused the coronary occlusion. The court stated: "Whether there was causal connection between the accident and resulting injury and the atherosclerosis, the rupture of the atheromatous abscess, the thrombosis, or the coronary occlusion presented a question for solution not within the competency of laymen, and a question with respect to which, only a medical expert with training, skill, and experience could form a considered judgment and express an intelligent opinion. Indeed, it perhaps would require a medical expert trained and experienced in a specialized field. “The great weight of authority supports the rule that medical expert testimony to be sufficient to take the case to the jury must be to the effect that the accident or injury probably caused the Insured’s death; and that testimony to the effect that a causal connection between the accident or injury and Insured’s ensuing death was possible, such as testimony that the accident or injury ‘might have,’ or ‘may have,’ or ‘could have’ caused the death of Insured, is insufficient to take the case to the jury, because such testimony leaves the issue in the field of conjecture and permits the jury to speculate or guess as to the cause of death.” (p. 665.) We can have no disagreement with this line of cases but they are readily distinguished on the facts inasmuch as we cannot accept defendant’s construction of the testimony here. First, we cannot construe the answers of the two medical witnesses offered by plaintiff as mere expression of possibility. We will not indulge in semantic refinements respecting each of the particular words used in both the questions and the answers in determining the fair import of the testimony. The answers did go beyond the questions. Both doctors found disability. The statement of the orthopedic specialist was that plaintiff’s history was suggestive that his condition had worsened since the accident and further that he felt he could say that it “began as a result of the accident.” He emphasized the importance of the history in reaching a conclusion. The osteopath stated he thought the collision “would have a bearing” on plaintiff’s conditio® as he found it. This opinion as to connection was shown to be based on the recurrent episodes of disability and pain plaintiff had had since the collision and upon his physical examination and findings. We think this testimony amounted to an honest expression of professional opinion that there was a causal connection between the collision and the condition complained of. This is all that is or ought to be required. In the case of Roark v. Greeno, 61 Kan. 299, 59 Pac. 655, it was said: “The contention of counsel for defendant in error, that the physicians testifying should have been required to state with certainty the cause of plaintiff’s condition after a hypothetical case had been submitted to them, would be supposing an exactness in medical science to which the most learned followers have not yet attained.” (p. 304.) It will be seen that the answers given in the case at bar are very different from those in Whitaker v. Panhandle Eastern P. L. Co., 142 Kan. 314, 46 P. 2d 862, also relied on by defendant, wherein this court described the doctor s answers as stating it was possible that an accident might have caused the present condition of the plaintiff. Moreover, the conclusion defendant would have us reach ignores any significance to be given to the lay testimony in the case. We note that the annotator at 135 A. L. R., supra, further has this to say about the sufficiency of evidence to establish causal connection: “There are a number of cases which, while apparently admitting that medical evidence showing only a possibility of a causal relation between an accident or injury and subsequent death or physical or mental impairment is not, by itself, sufficient to establish such relation, uphold the view that such evidence, in conjunction with other evidence, nonexpert in nature, indicating that such a relation exists, although likewise not sufficient by itself to establish the relation, or in conjunction with admitted or obvious facts and circumstances of the case showing that death or physical disability would naturally and probably result from the injury, is sufficient to establish the causal relation.” (p. 532.) There is no question that plaintiff was involved in a rather serious collision and that he received some injury as a result thereof. Lay witnesses testified to obvious facts within their knowledge and observation respecting plaintiff’s physical condition. While we have not gone into that evidence in detail, these witnesses very definitely related a decline in plaintiff’s physical condition to the time of the collision, which continued up to the time of the trial in March, 1965. None, of course, expressed any opinion as to causation but it certainly was not improper for the jury to consider this evidence in connection with the medical evidence in reaching a conclusion, this not being the type of case where, as in the Bearman case, because of the nature of the subject matter, expert testimony alone is essential to the formation of an intelligent opinion. In view of the foregoing we conclude no error was committed in the receipt of the medical evidence and that there was sufficient competent evidence of causal connection between the collision and plaintiff’s subsequent condition. Turning now to the instructions, the only ground for the objection to instruction No. 5 was that it failed to inform the jury that its verdict must be based on evidence of reasonable medical probability. In asserting this objection defendant stated that it was made because the court had admitted “evidence of possibilities and is conjectural and speculative.” The same thought was embodied in his requested instruction. These claims of error are part of the same attack and are based on the major premise of defendant as to the character of plaintiff’s evidence with which premise we have just disagreed; hence they likewise cannot be sustained. As has already been indicated, the requested instruction was not appropriate to the evidence, being too broad in that it tended to limit the jury’s consideration to evidence offered by medical witnesses. The jury was instructed in what was primarily a fact case as to quantum and burden of proof, preponderance of the evidence, what constituted causal connection, and of its province in determining credibility and weighing evidence. These were all matters for fair argument under the evidence which the jury resolved. There being no error shown, the judgment is affirmed. APPROVED BY THE COURT.	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The opinion of the court was delivered by Harman, C.: At issue here is the validity of a judgment against appellant based on child support payments. There is no dispute as to any pertinent fact. Appellee initiated the action in 1947 by filing her petition for divorce in the district court of Reno County. Appellant as defendant appeared therein and on February 21, 1948, appellee was granted a divorce and was also awarded custody of two daughters then ten and eight years of age. Appellant was ordered to pay $40.00 per month for the support of each child. Appellant failed to make these support money payments and contempt proceedings were instituted, as a result of which appellant paid support money through July, 1950. On August 20, 1957, appellee filed a motion in the divorce action alleging that the order of February 21, 1948, had not been complied with in that no payments thereon had been made from August 1, 1950; she asked for an order reviving all judgments for child support under the first order which had become dormant, being payments from August 1, 1950, to August 1, 1952; appellee also alleged the marriage of one of the daughters in February, 1957, and further that after due credit owing to said marriage there was due her on all judgments including the revived judgments the sum of $6,480.00, and she prayed “that a finding be made that there is due and owing and unpaid child support judgments in favor of this Plaintiff in the amount of $6,480.00 and that judgment be rendered and entered against said defendant in accordance therewith.” Appellant was duly notified of the filing of this motion. On September 20, 1957, at the hearing of this motion, appellant appearing by counsel, the court entered the following findings and order: “The court being fully advised in the premises finds that all child support payments ordered by the court from September 1, 1950 to August 1, 1952, are due and unpaid under order of the court and have become dormant and should be revived. The court further finds that the facts alleged in the motion of plaintiff are true and correct and that there is due and owing and unpaid child support payments under the order of the court in favor of the plaintiff (including revived judgments), the sum of Six thousand four hundred eighty Dollars ($6,480.00). “Now Therefore, it is ordered, adjudged and decreed, that the plaintiff have and recover judgment for all child support payments due from September 1, 1950 to August 1, 1952, and the same be and hereby are revived. “It Is Further ordered, adjudged and decreed that the plaintiff have and recover judgment from the defendant in the sum of Six thousand four hundred and eighty Dollars ($6,480.00) with interest at the legal rate.” No appeal was taken, no executions were issued or anything further done with respect to this judgment until October 2, 1963, at which time appellee filed her motion to revive the judgment of September 20, 1957. Appellant was again duly notified and on October 22,1963, both parties again appearing, the trial court heard this motion and found that the judgment in the amount of $6,480.00 was due and unpaid but that said judgment had become dormant and should be revived, and the court ordered the $6,480.00 judgment revived. No appeal was taken from this judgment. Thereafter at some undisclosed time certain property belonging to appellant was sold at sheriff’s sale under execution issued to enforce such judgment and other property was levied upon pursuant thereto. On March 29, 1965, appellant filed some kind of motion not shown in the record on appeal but evidently it requested an order restraining the sheriff of Reno County from proceeding with a sale of real estate on execution upon the theory that the order of September 20, 1957, decreeing the judgment for $6,480.00 was invalid and void. The trial court denied this motion, from which order this appeal is taken. Appellant contended in his brief that the entire order of September 20, 1957, was void, but upon oral argument before this court he concedes the trial court did have authority to revive a dormant judgment covering the period from August 1, 1950, to August 1, 1952, and that that part of the September 20, 1957, order was valid but he contends the balance of said order was void in that the court could not in this manner reduce a number of monthly judgments not yet dormant to a lump sum judgment. He also contends the purported revivor of October 22, 1963, can have no more validity than the judgment attempted to be revived. A proceeding to enforce a judgment is collateral to the judgment, and when such proceeding is sought to be restrained on the ground of invalidity of the judgment, such effort is a collateral attack upon the judgment. Hence it is readily seen that appellant collaterally attacks so much of the judgment of September 20, 1957, against him as is in excess of the two years’ support money installments. Of course, a void judgment or order is a nullity and may be collaterally attacked at any time (In re Estate of Cornelison, 178 Kan. 607, 290 P. 2d 1016). Conversely, when a judgment has been entered in a case and has become final, it cannot be collaterally attacked in a subsequent proceeding unless it appears the judgment is void (McFadden v. McFadden, 187 Kan. 398, 357 P. 2d 751). We turn then to a consideration of the court’s action of September 20, 1957. The court had jurisdiction of both of the parties. Appellant was properly notified of that hearing and he appeared therein. We are not advised of the extent of his participation and the record is silent as to any objection made. The proceeding concerned support of the minor children of the parties. The court, having dissolved the marriage, had a duty to provide for the support of the children of that marriage (Laws 1953, Chap. 278, § 1); this was a matter of continuing jurisdiction of the court (Grunder v. Grunder, 186 Kan. 766, 352 P. 2d 1067). Appellant remained under a continuing parental obligation to provide support for his minor children, and at the particular time of the hearing we know of no reason why an independent action for support could not have been maintained against him had appellee chosen to do so (see Effland v. Effland, 171 Kan. 657, 237 P. 2d 380). We have no hesitation in saying the court had plenary power with respect to the support of the children of the parties who were before it, that is to say, it had jurisdiction of the subject matter of the action before it. The judgment in question actually did two things. First, it revived certain installments for a period of two years which had become dormant. Second, it computed the amount due at the particular time, giving credit for the time elapsing since the marriage of the eldest daughter. Insofar as this crediting acted retrospectively it may have been erroneous, but it was requested by appellee and certainly resulted in no prejudice to appellant since it relieved him of a certain amount of liability and any error favored him. The entire amount of the judgment complained of was a valid and subsisting judgment on September 20, 1957, and fully enforceable as such. The total amount due which appellant had failed to pay was computed. This was a determination of the rights of the parties and constituted a judgment (G. S. 1949, 60-3101) which has never been directly attacked. We note in passing that a similar procedure was employed in Davis v. Davis, 145 Kan. 282, 65 P. 2d 562, albeit under somewhat different circumstances. The trial court acted in nowise in any manner forbidden by law, the order of September 20, 1957, resulted in no prejudice to appellant, who since the original decree has paid nothing for child support except under court compulsion, and under the facts and circumstances of this case we cannot say that the order was void. We are not called upon nor do we express any opinion as to the propriety of the order if under direct attack. The ruling on the order appealed from must be affirmed. approved by the court. Fontron, J., not participating.	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The opinion of the court was delivered by Fatzer, J.: The defendant, Richard Lee McCarther, was convicted by a jury of escaping from the county jail of Sedgwick County, and has appealed. On December 5, 1964, the defendant, while lawfully confined in the Sedgwick County jail awaiting trial on charges then pending against him for first degree robbery, felonious assault and possession of firearms after a felony conviction, broke imprisonment and escaped. An information was filed directly in the district court charging the defendant with escape before conviction in violation of K. S. A. 21-736, and alleged he was a fugitive from justice as provided in K. S. A. 62-805. On December 8, 1964, the clerk of the district court issued a warrant for the defendant’s arrest, alleging the offense charged in the information; that he was a fugitive from justice, and commanded the sheriff to arrest the defendant and bring him before the court to answer the charge. On Friday, December 18, 1964, the defendant was arrested, and on Monday morning, December 21, 1964, he was brought before Judge Wm. C. Kandt of division No. 1 of the district court for arraignment and the fixing of an appearance bond. (The courthouse in Sedgwick County is officially closed on Saturdays, and December 20,1964, was Sunday.) The defendant advised the court he had employed Russell Shultz, a member of the Sedgwick County Bar, to represent him. Upon being advised that Mr. Shultz was not present, and having a trial scheduled to commence at 9:30 a. m., Judge Kandt continued the matter until 1:45 p. m. At that time, the parties appeared as before, including the defendant, but without Mr. Shultz. The court advised it had communicated with Mr. Shultz who was in federal court in Wichita and did not know when he could be present, and stated, “so I think we will proceed with the arraignment and give Mr. Shultz time to make an appearance with you later if he desires.” The information was read to the defendant, and after explaining the nature of the offense charged, the sentence prescribed upon conviction, and his right to have a trial upon the offense alleged, the court inquired of the defendant if he “wished to plead to the charge.” The defendant replied in the negative and the court entered a plea of not guilty. The case was set for trial and the court fixed the defendant’s appearance bond in the amount of $50,000, die same amount which had previously been fixed in the cases for which he escaped confinement, conditioned upon his appearance before the court on the first day of the January term. Pending the posting of proper bond, the defendant was ordered committed to the county jail. On a date not shown by the record, the defendant’s case was ordered transferred to division No. 4 of the district corn! since that division had an earlier assigned case involving the defendant. On March 1, 1965, Judge James V. Riddel, Jr., of division No. 4, for good cause shown and to facilitate a speedy trial, assigned all cases pending against the defendant to division No. 6 of the district court, Judge Robert T. Stephan presiding. On that same day, March 1,1965, the defendant appeared before Judge Stephan and requested that his retained counsel, Mr. Russell Shultz and Mr. Larry Kirby, be discharged. The record does not indicate whether Mr. Shultz or Mr. Kirby appeared for the defendant or filed any motion in his behalf during their employment. The court advised the defendant it would appoint counsel to represent him in all cases pending against him at 10:00 o’clock a. m. the following morning. On March 2, 1965, the court appointed Mr. Stan Issinghoff, a former county attorney of Trego County and a practicing attorney in Wichita, as counsel for defendant in the four felony cases then pending against him in division No. 6. Mr. Issinghoff requested the court to continue all cases, including the instant case, to the next term. The request was denied, and all cases were set for trial on March 30, 1965. There is some indication in the record that the first degree robbery charge was tried prior to the trial in the instant case and that Mr. Issinghoff represented the defendant at that trial. Be that as it may, the record affirmatively shows that Mr. Issinghoff made a request in writing to withdraw as counsel for the defendant, and on April 21, 1965, the court approved his withdrawal. Thereafter, and on that same day, the court appointed Mr. Melvin Gradert, a member of the Wichita Bar, to represent the defendant, remarking that Mr. Gradert was a former assistant United States attorney for the district of Kansas and had considerable experience with respect to criminal procedure and criminal law. On May 3,1965, the instant case came regularly on for trial. After a jury was duly impanelled, the court inquired if there were any objections to proceeding with formal arraignment of the defendant. Counsel stated he had no objection, and the court read the information in full to which the defendant entered a plea of not guilty. The state advised the defendant and his counsel in open court that should the defendant be convicted of the crime with which he was charged, sentence under the Habitual Criminal Act (K. S. A. 21-107a) would be sought. The jury was sworn at 12.30 p. m. and after being duly admonished, the court recessed until 2:00 p. m. Prior to the jury’s return at 2:00 p. m. on May 3, 1965, counsel for the defendant orally moved to dismiss the information and enter judgment of acquittal for the reason that the defendant was not brought immediately before the district court to be arraigned and that an appearance bond was not fixed in accordance with K. S. A. 62-805. The motion was overruled since the record made at the defendant’s arraignment on December 21, 1964, clearly disclosed that an appearance bond in the sum of $50,000 was fixed by the court at that time. Through inadvertence the county attorney drew no formal order for the files indicating that bond had been set. However, there is no showing the defendant was prejudiced by the failure of the state to draw an order showing that an appearance bond in the sum of $50,000 had been fixed by Judge Kandt, since the defendant had not previously been able to provide such a bond. The state made its opening statement tO‘ the jury, offered its evidence, and rested. The defendant did not testify and offered no evidence. After being duly instructed, the jury found the defendant guilty as charged in the information. The defendant timely filed a motion for a new trial, alleging two grounds. First, that the verdict of the jury was not sustained by the evidence, and second, that the defendant did not receive a fair trial because the jury was prejudiced and influenced into believing the defendant was a dangerous person by the constant presence of four sheriff’s officers who sat immediately behind him during the entire course of the trial. On May 21, 1965, the motion for a new trial was heard. Counsel for the defendant stated he was not seriously urging the first ground, but asked the court to sustain his motion upon the second ground because he felt the defendant was unduly prejudiced. In overruling the motion, the court stated: “I’m convinced Mr. McCarther had a fair trial. There was, as I recall, one uniformed sheriff’s officer in the courtroom who was not a witness. Anyone else that was here in uniform, as I recall, was a witness on the case, but every member of the Sheriff’s office handled themselves in such a manner so you hardly knew that they were here at all as far as I was concerned, and as a result of their conduct, why, I’m sure that no attention was paid to their presence.” Thereafter, the defendant was sentenced to confinement for the period of his life in the Kansas State Penitentiary upon the jury’s verdict of guilty and in accordance with the Kansas Habitual Criminal Act. On a date not disclosed by the record, defendant’s presently retained counsel filed a motion to vacate and set aside the sentence on the grounds that (1) there was no authorization for the filing of an information by the county attorney directly in the district court without first affording, the defendant a preliminary examination; (2) the judgment and sentence rendered was without jurisdiction and in violation of the general statutes of Kansas, and (3) the defendant was arraigned without the benefit of counsel in division No. 1 of the district court on December 21,1964. The state filed a motion to strike the defendant’s motion to quash and set aside the sentence, but the record is silent whether either motion was ever presented to the district court, and if so, whether the court ever ruled on either motion or both. In any event, there was no appeal from a ruling on the defendant’s motion to quash and set aside the sentence. The notice only specified that the appeal was from the judgment and sentence rendered on May 21, 1965, and from the order overruling the defendant’s motion for a new trial. The defendant first contends that his fundamental and basic rights were violated when the state filed an information directly in the district court alleging he was a fugitive from justice thereby summarily depriving him of the right to have a preliminary examination, which violation was of a substantial nature and constituted prejudicial error. The defendant refers to K. S. A. 62-805 which reads: “No information shall be filed against any person for any felony until such person shall have had a preliminary examination therefor as provided by law before a justice of the peace or other examining magistrate or officer, unless such person shall waive his right to such examination: Provided, however, That informations may be filed without such examination against fugitives from justice, and in misdemeanor cases not cognizable before justices of the peace. Where proceedings are commenced originally by information in the district court, the clerk of the court during vacation shall issue a warrant, naming the offense charged to have been committed and the county in which it was committed, and requiring the officer to whom it shall be directed forthwith to take the person accused and bring him before the judge or the clerk of said court to be admitted to bail for his appearance at the next term of the court to be held in said county. In case the defendant should fail to give bond for such appearance in such sum as in the opinion of the judge or the clerk will secure the appearance of the person charged with the offense at the court where such person is to be tried, the prisoner shall be committed for trial, and there shall be endorsed upon the order of commitment the sum in which bail is required.” This court has often construed the statute and consistently held that the right of an accused charged with felony to a prehminary examination is a fundamental and basic right which is substantial, and if he is deprived of it, he is prejudiced; that while the object of a preliminary examination is to inform the accused of the nature and character of the crime charged against him, it is also a step, and a necessary step, in the proceeding to lead up to his trial in the district court; that the county attorney is not authorized to file an information against an accused of felony unless the accused is a fugitive from justice (State v. Woods, 49 Kan. 237, 30 Pac. 520; State v. Grady, 147 Kan. 268, 76 P. 2d 799), or the district court has ordered the information to be filed (K. S. A. 62-807), or the accused has waived his right to a preliminary examination, or has had a preliminary examination before a proper magistrate to whom it shall appear an offense has been committed and there is probable cause to believe the accused is guilty, and that the accused may not be put on trial in the district court until a preliminary examination has ripened into such a finding and a consequent binding over to the district court. (State v. Montgomery, 8 Kan. 351; State v. White, 44 Kan. 514, 25 Pac. 33; State v. Goetz, 65 Kan. 125, 69 Pac. 187; State v. Howland, 153 Kan. 352, 110 P. 2d 801.) The information charged the offense sufficiently and showed it was prosecuted by the proper official. It was duly verified and alleged the defendant was a fugitive from justice. The defendant was arrested on the warrant issued out of the district court, but the record does not disclose where the arrest occurred, although we are told in oral argument the defendant was arrested in Wichita. At no time, prior to or during the trial, or in the motion for a new trial, was the district court’s attention directed to the fact the defendant was not afforded a preliminary examination or had waived it, or that such an examination had been requested or denied, nor did the defendant file a plea in abatement alleging he did not have a preliminary examination and that he was not a fugitive from justice as that term is defined in K. S. A. 62-728 and Thompson v. Nye, 174 Kan. 750, 257 P. 2d 937. It is not necessary that the information allege the accused had a preliminary examination, or had waived it (State v. Finley, 6 Kan. 366), and it will be presumed the information was filed under such circumstances as warranted its filing and that all facts therein stated are true. (Jennings v. State, 13 Kan. 80; State v. Consumers Warehouse Market, 183 Kan. 502, 511, 329 P. 2d 638.) It is a well-established rule of criminal procedure in this state that where there has in fact been no preliminary examination afforded the defendant, he is required to raise the question of the lack of such an examination prior to arraignment by filing a plea in abatement, and the proper practice is for the state to file a pleading raising either an issue of fact or law, or both, so the defendant may intelligently proceed. (State v. Finley, supra; Jennings v. State, supra; State v. Blakesley, 43 Kan. 250, 23 Pac. 570; State v. White, supra; State v. Woods, supra; State v. Perry, 102 Kan. 896, 171 Pac. 1150; State v. Wisdom, 99 Kan. 802, 162 Pac. 1174; Uhock v. Hand, 182 Kan. 419, 422, 320 P. 2d 794.) Moreover, a motion to quash or dismiss the information is properly overruled because such a motion only reaches some defect apparent on the face of the information and does not raise an issue of the want or the sufficiency of a preliminary examination. (State v. Saindon, 117 Kan. 122, 230 Pac. 301; State v. Consumers Warehouse Market, supra; 42 C. J. S., Indictments and Informations, § 214, p. 1210.) Another rule ingrained in the criminal procedure of this state is that where a defendant files no plea in abatement that he had no preliminary examination on one or more charges contained in the information, and thereafter is arraigned, pleads not guilty, and goes to trial on the information, the subject of preliminary examination is no longer material (State v. Bowman, 80 Kan. 473, 103 Pac. 84; State v. Perry, supra; State v. Saindon, supra; State v. Wallgren, 144 Kan. 10, 11, 58 P. 2d 74), and a defendant cannot raise objection to the lack of or the sufficiency of a preliminary examination after trial and conviction (State v. Perry, supra; Jennings v. State, supra; State v. Bowman, supra, State v. Wisdom, supra), and objection by the defendant on appeal that he had no preliminary examination comes too late. (State v. Bailey, 32 Kan. 83, 3 Pac. 769.) See, also, State v. Osburn, 171 Kan. 330, 335, 232 P. 2d 451, and Portis v. State, 195 Kan. 313, 317, 403 P. 2d 959. In the recent case of State v. Young, 194 Kan. 242, 398 P. 2d 584, the foregoing rule was stated as follows: “Although not assigned as error, and not actually here for purposes of appellate review because of failure to raise the point in the court below, it is suggested appellant did not have a preliminary examination on the charge which was filed against him in the district court. It must be remembered the ¡record discloses that on the trial of the case in district court appellant, while represented by competent counsel, waived arraignment, pleaded not guilty, and went to trial on the amended information. Under such circumstances this court has long been committed to the rule that, thereafter, questions raised respecting lack of preliminary examination are no longer material and afford no sound basis for reversal of the judgment in a criminal action on appeal (State v. Majors, 182 Kan. 644, 323 P. 2d 917; State v. Osburn, 171 Kan. 330, 335, 232 P. 2d 451, and State v. Wallgren, 144 Kan. 10, 11, 58 P. 2d 74), or for the granting of a writ in a habeas corpus proceeding (Thomas v. Hand, 184 Kan. 485, 337 P. 2d 651, and Ramsey v. Hand, 183 Kan. 307, 309, 327 P. 2d 1080).” (1. c. 245.) The foregoing procedural rules are salutary and serve a legitimate state interest. (State v. Freeman, 195 Kan. 561, 408 P. 2d 612.) Their purpose is designed to promote definiteness, fairness, and orderly procedure of criminal litigation, and they present no federal question. (State v. Aeby, 191 Kan. 333, 381 P. 2d 356, and cases cited.) When a plea in abatement is timely filed and the state responds with a proper pleading, evidence is introduced upon the issue and if the plea is overruled the ruling thereon is not appealable until final disposition of the case in the district court. (State v. Brown, 144 Kan. 573, 61 P. 2d 901.) However, the sufficiency of the evidence to sustain the order overruling the plea is reviewable upon appeal from the judgment of conviction. (State v. Morris, 190 Kan. 93, 96, 372 P. 2d 282.) Thus, the rule permits the defendant to orderly raise the question of lack of preliminary examination prior to going to trial, and also preserves the question for appellate review. In view of the foregoing, and since the defendant filed no plea in abatement alleging he was not a fugitive from justice and that he had no preliminary examination upon the charge contained in the information, and thereafter was duly arraigned, pleaded not guilty, and went to trial on the information, the subject of preliminary examination was no longer material. The defendant next contends the district court erred in overruling his oral motion to dismiss the information and to enter a judgment of acquittal. It is argued that, following his arrest, the defendant was not forthwith brought before the district court and that he was not admitted to bail for his appearance at the next regular term of the court. As previously noted, the defendant was arrested on Friday, December 18, 1964, and was brought before the court the following Monday morning, December 21 — the courthouse in Sedgwick County is officially closed on Saturdays, and December 20, 1964, was Sunday. Even if it could be assumed this delay was unreasonable, it did not of itself constitute a denial of due process of law. (Cooper v. State, 196 Kan. 421, 425, 411 P. 2d 652; McFarland v. State, 196 Kan. 417, 419, 411 P. 2d 658.) It is true the county attorney failed to enter a formal order fixing the defendant’s appearance bond in the sum of $50,000. Failure of the state to comply with the statute in this respect is inexcusable, however, the defendant’s rights were not prejudiced by such failure and had he or his counsel sought to give an appearance bond, the amount had been fixed by the court and could have been easily ascertained. In any event, it cannot be said the defendant was denied bail in violation of Sec. 9 of our Bill of Rights. The defendant next argues that the purported arraignment on December 21, 1964, was void because his retained counsel was not present. It is unnecessary to discuss this point since the defendant was duly arraigned in the presence of his court-appointed counsel on May 3, 1965, and entered a plea of not guilty. The issue for the jury to determine was framed by his plea of not guilty. See, State v. Wilson, 42 Kan. 587, 22 Pac. 622; State v. Rook, 61 Kan. 382, 59 Pac. 653, and State v. Baker, 57 Kan. 541, 46 Pac. 947. Having heard all the evidence, the jury returned its verdict finding the defendant guilty and the district court approved the verdict when it overruled the defendant’s motion for a new trial. The defendant next contends the district court erred in overruling his motion for a new trial. As previously indicated, at the hearing on the motion for a new trial, counsel for the defendant waived the question of the sufficiency of the evidence to support the verdict. However, we have fully reviewed the evidence and it overwhelmingly established each ingredient of the crime charged in the information and the motion for a new trial was properly overruled. The defendant contends that he was misled in the absence of his attorney on December 21, 1964, into believing the maximum sentence he could receive if convicted of the offense charged would not exceed two yeai-s, and in relying thereon, availed himself of his right to a trial and received a sentence of life imprisonment. The contention is not meritorious. Without passing upon the validity of the defendant’s arraignment on December 21, 1964, the record clearly shows that following his arraignment on May 3, 1965, and in the absence of the jury, the state served notice in open court upon the defendant and his counsel that in the event the defendant was convicted of the offense charged, it would seek sentence pursuant to the Kansas Habitual Criminal Act. Two prior convictions of felony were introduced prior to the imposition of sentence and the court found from the record and other competent evidence the fact of said former convictions and sustained the state’s motion to sentence the defendant under the Kansas Habitual Criminal Act. The sentence imposed by the district court was within the terms of the statute. (K. S. A. 21-107a.) The defendant argues that because of many irregularities in the trial he was faced with confusion and surprise and did not receive a fair trial. The record speaks for itself and reflects overwhelmingly otherwise. Counsel for the defendant had ample opportunity to prepare the defendant’s defense and at no point did either he or the defendant indicate they were surprised or confused by the state’s evidence. The defendant and other prisoners tied up a guard and used a makeshift rope made out of tom mattress covers to lower themselves from the sixth floor of the Sedgwick County jail to a lower roof of the courthouse where he was able to make good his escape. No lawful authority was given to the defendant to leave the confines of the jail and under the evidence the jury had ample grounds to find him guilty. We are of the opinion the district court conducted the trial in accordance with the criminal procedure of this1 state and with the view that justice be done. We have carefully reviewed the record and find no reversible error. Like the district court, we are of the opinion the defendant had a fan trial, and the judgment is affirmed. It is so ordered. Fromme, J., not participating.	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The opinion of the court was delivered by Kaul, J.: This appeal is from an order entered in a proceeding brought under the Uniform Reciprocal Enforcement of Support Act. (K. S. A. 23-419, et seq.) The facts are stipulated. John D. Wheeler (appellant-defendant) and Dorothy H. Wheeler (appellee-plaintiff) were married on August 5, 1945, at Phoenix, Arizona. They were divorced by the district court of Shawnee county on August 11, 1955. They are the parents of one child, Michael T. Wheeler, born October 3, 1947. The district court of Shawnee county had jurisdiction of the parties at the time of the divorce and awarded custody of Michael T. Wheeler to his mother and provided for his support by his father. Plaintiff is now a resident of Los Angeles county, California, and Michael presently resides with her. The defendant has remained in Kansas since the divorce and presently resides in Johnson county. In February of 1962, the district court of Shawnee county approved an agreement between the parties relating to the custody, care and support of Michael and entered its order modifying its previous orders of August 11, 1955, in conformity with the terms of the agreement. The 1962 modification, based on the parties’ agreement, provided for substantial support payments while Michael was in high school and also provided for college expenses if Michael should go to college. The modification order further provided that the duty to make support payments would terminate in the event Michael should drop out of high school for reasons other than health. On May 18, 1965, the plaintiff filed this proceeding under the Uniform Reciprocal Enforcement of Support Act, referred to hereinafter as the act, in the superior court of Los Angeles county, California. Plaintiff alleged that defendant owed a duty of support to Michael T. Wheeler and prayed for an order to that effect. The California court found that defendant owed a duty of support as alleged and ordered the complaint transmitted to the district court of Johnson county, Kansas, for further proceedings under the act. The defendant filed a motion to dismiss the complaint and proceedings thereunder on the grounds that the exclusive jurisdiction of the matter of the care, custody and support of Michael T. Wheeler was vested in the district court of Shawnee county insofar as any other court in the state of Kansas was concerned. Defendant further contended that the matter of any duty of support owed by him to Michael was res judicata under the order of the district court of Shawnee county and that the Uniform Reciprocal Enforcement of Support Act could not be interpreted to apply in a situation where the responding state under the act is also the forum state of the initial divorce and support proceedings between the same parties. The defendant made all payments as required by the 1962 order of the district court of Shawnee county until April of 1964. At that time he learned that Michael had been dropped from high school in October of 1963 because of poor attendance. Defendant advised plaintiff that he was ceasing to make support payments in accordance with the provisions of the 1962 order of the district court of Shawnee county. In June 1964 Michael came to Kansas and lived with his father until the end of January 1965, with the exception of two weeks in August of 1964 when he visited his mother. In January of 1965, by mutual consent, Michael T. Wheeler returned to California to live with his mother. At the hearing on the motion to dismiss, defendant introduced evidence, which was undisputed, that neither appellee nor Michael T. Wheeler had made any request or demand upon defendant for support from the time such payments were terminated in April 1964 until the institution of the proceedings under the act in May 1965. On July 6, 1965, the district court of Johnson county entered its order overruling the defendant’s motion to dismiss and directing him to pay child support in the amount of $125.00 per month until the further order of the court. The defendant appealed and designated as points: (1) The district court of Johnson county was without jurisdiction, (2) the act as applied by the Johnson county court is unconstitutional, and, (3) the duty of support owed by defendant is res judicata under the order of the district court of Shawnee county. Since appellant resided in Kansas at the time of the institution of the support proceedings the laws of Kansas as responding state are to be applied in this case. K. S. A. 23-425 provides: “Duties of support applicable under this act are those imposed or imposable under the laws of any state where the obligor (appellant herein) was present during the period for which support is sought.” Other jurisdictions have adopted the same view in proceedings under the act. Freeland v. Freeland, Texas Civ. App., 313 S. W. 2d 943; State of Calif.-Ment. Hyg. v. Copus, 158 Texas 196, 309 S. W. 2d 227; Rosenburg v. Rosenburg, 152 Me. 161, 125 A. 2d 863; Daly v. Daly, 21 N. J. 599, 123 A. 2d 3. Therefore it becomes necessary to consider the defendant’s duty of support imposed or imposable under the law of this state. The district court of Shawnee county had jurisdiction of the parties and made provision for the custody and support of their minor child in the initial divorce proceeding in 1955. The continu ing jurisdiction of the Shawnee county district court was exercised again in 1962 when the court entered its order modifying the original order. In Talbott v. Talbott, 194 Kan. 178, 398 P. 2d 358, it was clearly stated that even though a court might lose jurisdiction to modify or change the custody of a child where the child is given to one of the parents in a divorce proceeding and later such parent leaves the state with the child and establishes a domicile in another state, the jurisdiction is retained as to the child support phase of the matter. See also Maston v. Maston, 171 Kan. 112, 229 P. 2d 756; In re Pettit, 84 Kan. 637, 114 Pac. 1071. The legislature departed from the usual rules of jurisdiction by making particular provisions for the jurisdiction of a court in providing for the custody and support of minor children stemming from a divorce action. K. S. A. 60-1610 (a) provides in pertinent part as follows: ■ “The court shall make provisions for the custody, support and education of the minor children, and may modify or change any order in connection therewith at any time, and shall always have jurisdiction to make any such order to advance the welfare of a minor child if (i) the child is physically present in the county, or (il) domicile of the child is in the state, or (in) the court has previously exercised jurisdiction to determine the custody or care of a child who was at such time domiciled in the state.” (Emphasis added.) It is clear in the instant case the jurisdiction of child support is retained by the Shawnee county district court. The question framed is whether or not jurisdiction of the Johnson county district court may be superimposed on that of Shawnee county by means of the Uniform Reciprocal Enforcement of Support Act. The issue is one of first impression in this jurisdiction. The plaintiff argues that under the provisions of K. S. A. 23-421 the remedies provided in the act are in addition to, and not in substitution for, any other remedy and that pursuant to this provision the district court of Johnson county has jurisdiction to enforce a support proceeding under the act, notwithstanding the original and continuing jurisdiction of the Shawnee county district court. Roth the appellant and the appellee rely on authorities from other jurisdictions. The plaintiff directs our attention to the case of Thompson v. Thompson, Fla., 93 So. 2d 90, which arose under a similar factual situation. The parties were divorced in Volusia county circuit court. The wife was awarded custody of a minor child and moved to the state of Connecticut. She commenced proceedings under the act in the latter state and the Connecticut court addressed the proceedings to the circuit court of Duval county, Florida, which had become the husband’s county of domicile in the meantime. The husband moved to dismiss on the grounds that the Volusia county circuit court, having entered the divorce decree, upon which the duty of support was based, retained exclusive jurisdiction of the matter and the circuit court of Duval county dismissed the proceedings on those grounds. The supreme court of Florida in reversing stated: “And there is no difference, in principle, in enforcing the duty of support decreed by a sister state and in enforcing the duty when decreed by a court of this state, especially since it appears to be the duty of support imposed by a divorce or separate maintenance decree (as distinguished from the amount of the support so decreed) that is enforced by the responding state under the Act in question.” (p. 93.) The case may be distinguished from the one at hand for the reason that the Florida circuit court was asked to “enforce” a decree of another Florida court. In the instant case the Johnson county district court is not asked to enforce the decree of the Shawnee county district court, but rather to impose new and different obligations of support under the order of the superior court of Los Angeles county, California. The supreme court of Florida further stated in the Thompson case that the question of whether the lodging of a petition in the Duval county circuit court conferred jurisdiction to entertain an application for the modification of the support provisions of the Volusia county divorce decree was not presented and would not be decided. Appellant relies on the case of Freeland v. Freeland, supra, in which the parties were divorced in the 17th District Court of Tar-rant county, Texas. The wife was awarded the care and custody of three minor children and moved to Indiana. The husband was ordered to pay $25.00 per week as child support. The wife instituted proceedings under the act in the circuit court of Adams county, Indiana, and the court addressed the proceedings to the 95th District Court of Dallas county, Texas, the then residence of the husband. The 95th District Court of Dallas county overruled the divorced husband’s plea of jurisdiction and res judicata. The Texas Court of Civil Appeals reversed on the grounds that the District Court of Dallas county, where the husband allegedly resided could not enforce the Indiana order under the act when a prior judgment of another district court of Texas, involving the same parties, had adjudicated the same matter. The act as adopted in Kansas provides that when a court of this state, acting as the responding state, receives a matter referred from the initiating state, the Kansas court shall docket the cause, notify the county attorney, set a time and place of hearing and take such action as is necessary in accordance with the laws of this state to obtain jurisdiction. (K. S. A. 23-435.) It is further provided in K. S. A. 23-436 that if a court of this state acting as a responding state is unable to obtain jurisdiction of the defendant the court shall communicate this fact to the court of the initiating state and shall, on its own initiative, use all means to trace the defendant or his property. K. S. A. 23-437 provides that the court shall conduct proceedings under this act in the manner prescribed by law for an action for the enforcement of the type of duty of support claimed. The effect of the plaintiff’s complaint in this case is to ask the district court of Johnson county to amend, modify or change the earlier order of the district court of Shawnee county. To apply the act as requested by plaintiff (wife) in this case, would require a holding that a district court of one county in this state may acquire jurisdiction to modify support orders previously entered by the district court of another county. In view of the continuing nature of jurisdiction in child support matters such a holding would be in direct conflict with the established rule of this state that where once a court acquires jurisdiction of the subject matter and parties that jurisdiction continues to the exclusion of the exercise of jurisdiction of courts of coordinate jurisdiction. (Schaeffer v. Schaeffer, 175 Kan. 629, 266 P. 2d 282, and cases cited therein.) We have no quarrel with, and indeed we approve, the intention of the act as declared in K. S. A. 23-421: “The remedies herein provided are in addition to and not in substitution for any other remedies.” However, when, as here, this state is acting as a responding state, the act must be applied in accordance with the laws of this state. Since the district court of Shawnee county shall always have jurisdiction of the matter of support of Michael under the laws of this state, the proceedings under the act must be directed to that court. To hold otherwise might result in intolerable confusion. In considering the consequences of interference by another court of coordinate jurisdiction, when one court has acquired jurisdiction of the subject matter and parties, it was stated in Schaeffer v. Schaeffer, supra, at page 633: “The general rule is that when a court of competent jurisdiction acquires jurisdiction of the subject matter and of the parties, its jurisdiction continues as to all matters therein involved until the issues are finally disposed of, and no court of co-ordinate jurisdiction should interfere with its action. (Schaefer v. Milner, 156 Kan. 768, 137 P. 2d 156; 14 Am. Jur. 436, § 243; 21 C. J. S. 745-748; Ewing v. Mallison, 65 Kan. 484, 70 Pac. 369; Juhlin v.. Hutchings, 90 Kan. 618, 135 Pac. 598; Rennolds v. Guthrie, 103 Kan. 829, 177 Pac. 359; Hepner v. Hepner, 115 Kan. 647, 223 Pac. 1095; Bank Savings Life Ins. Co. v. Schroll, 141 Kan. 442, 41 P. 2d 731; Watts v. Watts, 151 Kan. 125, 98 P. 2d 125; Graves v. National Mutual Cas. Co., 164 Kan. 267, 188 P. 2d 945.) It is essential to the proper and orderly administration of justice that the observance of the foregoing rule of law be enforced in order to prevent unseemly, expensive, and dangerous conflicts of jurisdiction and of process.” Even though we hold, that under the facts in the instant case, jurisdiction of the matter of support is retained by the Shawnee county district court, the remedy under the act is not denied. We find the act to be within the familiar rule that a uniform law which is remedial in nature is to be liberally construed with reference to the object to be obtained. As we have noted herein, under the provisions of K. S. A. 23-421, recourse to the act is an additional remedy and not a substitute for any other remedies. It is our view that plaintiff as custodian of Michael could avail herself of the benefits of the act in addition to the usual remedies available in the Shawnee county district court. In view of die provisions of K. S. A. 23-427 that jurisdiction of all proceedings hereunder shall be vested in the district courts and K. S. A. 23-435 ( 4), that the duty of the court of this state as responding state is to take such action as is necessary in accordance with the laws of this state to obtain jurisdiction, we hold that the district court of Johnson county, on timely notice of the pre-existing and continuing jurisdiction of the Shawnee county district court, should have transmitted the proceedings to the latter court. It then becomes incumbent on the district court of Shawnee county to proceed under the act as provided for in K. S. A. 23-435, including the modification, if necessary, of any decrees of the court relating to the matter of support. In this connection, the county attorney’s statutory duty of representation, imposed under K. S. A. 23-429, carries with it authority to seek a modification of any existing support orders. In seeking to effectuate the enforcement of the remedies of the act under a similar factual situation in State of Illinois ex rel. Shannon v. Sterling, 248 Minn. 266, 80 N.W. 2d 13, the court stated in headnote 8: “Under a liberal construction of the uniform act to accomplish its purpose, the county attorney’s statutory right of representation reasonably carries with it the authority to apply to the court, by appropriate motion, for a modification of the visitation and custodial provisions of the final decree to the extent necessary to permit an enforcement of the duty of future support.” While our concern here is with the jurisdiction it is noted that K. S. A. 60-611 of the new code of civil procedure provides for the similar transfer of an action where want of venue is made to appear. The fact that the Shawnee county district court has multiple divisions is of no import. In Combs v. Combs, 99 Kan. 626, 162 Pac. 273, it was stated in syllabus 1: “While the district court of Wyandotte county has three divisions and three judges it is one court, and it was not error to refuse the transfer from the first to the third division of the defendant’s motion to modify a former decree rendered by the first division.” We note the modification order of the Shawnee county district court, based on the agreement of the parties was an attempt to relieve defendant of any duty to support Michael under certain conditions. In this connection it should be pointed out that the right of a child to support from its father is a chose in action which belongs to the child. It is beyond the power of the father to deprive the court of its right to make provision for the support of minor children as their welfare may require. (17 Am. Jur. 2d 516 § 682; 27B C. J. S. § 319 [4] p. 606; Grimes v. Grimes, 179 Kan. 340, 295 P. 2d 646; Myers v. Anderson, 145 Kan. 775, 67 P. 2d 542.) Our construction of the act and the application thereof under Kansas laws resolves the question of constitutionality raised by defendant. Further discussion of this point would serve no useful purpose. The principle of res judicata as generally applied, is not relevant to decrees awarding custody and providing for the support of minors. Such decrees become res judicata only as to matters then determined and as of the time the decree was rendered. (Lyerla v. Lyerla, 195 Kan. 259, 403 P. 2d 989; White v. White, 160 Kan. 32, 159 P. 2d 461.) In accordance with the views expressed herein, the judgment of the district court of Johnson county is reversed and the cause is remanded with directions to transmit the proceedings to the district court of Shawnee county for further proceedings in conformity with the provisions of the act. Fromme, J., not participating.	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The opinion of the court was delivered by O’Connor, J.: This is a habeas corpus action brought under the provisions of K. S. A. 60-1501 for custody of the three minor children of the parties. The petitioner, William Joseph Murphy (appellee), is the father, and respondent Barbara Ann Murphy (appellant) is the mother of the children in question. For clarity the parties will hereafter be referred to as Mr. and Mrs. Murphy. The basic question presented by this appeal is whether or not the trial court erred in failing to hear evidence of changed conditions regarding the best interests and welfare of the minor children. The stipulated facts disclosed by the record are that Mrs. Murphy obtained a divorce from Mr. Murphy in the circuit court of Jackson county, Missouri, on July 9, 1963, and was awarded custody of the three minor children. Mr. Murphy was ordered by the court to pay $40 a week support and was granted reasonable visitation rights. On July 23, 1964, Mr. Murphy filed a motion in the Missouri court to modify the custody order, but the matter was not set for hearing on a definite date. Also on this same day Mr. Murphy gave notice to take Mrs. Murphys deposition on August 1, and a copy of the motion to modify was served on Mrs. Murphy by certified mail, return receipt requested. On August 3 the attorney who had represented Mrs. Murphy in her divorce case filed a motion to require Mr. Murphy to advance attorney’s fees and suit money and noticed the matter for hearing on August 7. The hearing was continued to August 14. Attorneys for the parties appeared and discussed the matter with the Missouri court, and Mr. Murphy agreed to pay the costs of the deposition. The court, however, did not rule on the motion. Notices were subsequently served to take the depositions of both parties. On September 23 Mrs. Murphy conferred with her attorney regarding the depositions which were to be taken on October 10. On October 6 Mrs. Murphy’s attorney telephoned her home to remind her of the depositions which were to be taken on the 10th, but a friend answered the telephone and advised the attorney that Mrs. Murphy was out. The friend told the attorney she would convey the message to Mrs. Murphy. However, on October 10 Mrs. Murphy did not appear. When Mrs. Murphy’s attorney checked to ascertain the reason for her absence he was informed she had moved out of the state. Following this, Mrs. Murphy’s attorney wrote a letter to her asking her to contact him so he would know how to proceed on Mr. Murphy’s motion. This letter was returned to the attorney’s office on October 22 marked “Moved, left no address.” Mrs. Murphy and the children had moved from Kansas City, Missouri, to California, where they stayed two weeks, and then came to Kansas. On October 24 Mr. Murphy filed a notice calling up for hearing and disposition on October 30 his motion to modify the custody order. This notice was mailed to Mrs. Murphy’s attorney on October 22. On October 28 the attorney for Mrs. Murphy notified the Missouri court by letter that he had tried to reach his client, was unable to do so, and planned to withdraw. The Missouri court, on October 30, 1964, heard evidence on Mr. Murphy’s motion to modify and entered an order changing custody of the children from Mrs. Murphy to Mr. Murphy. Attorney’s fees were awarded to Mrs. Murphy and have been paid by Mr. Murphy. Mr. Murphy located his children in Wichita, Kansas, and on February 12, 1965, petitioned the district court of Sedgwick county for a writ of habeas corpus. Mrs. Murphy filed an answer to the writ. On March 8 the district court, after reciting that it had examined the briefs and heard oral arguments of counsel, made findings of fact and conclusions of law. No testimony was heard relating to any change in conditions existing which would affect the minor children. In addition to the facts heretofore stipulated, the court found that Mrs. Murphy had knowledge of the pendency of the motion for change of custody in the Missouri court; nevertheless, she absented herself from the jurisdiction of the court even though she had notice of the hearing for disposition of said motion. The court concluded that the circuit court of Jackson county, Missouri, in entering its order of October 30, 1964, had jurisdiction of the subject matter of the action and of the parties; that the Missouri court retained continuing jurisdiction in the matter of the custody of the minor children; and that the district court of Sedgwick county, Kansas, should give full faith and credit to the order and decree of the Missouri court. Accordingly, the district court sustained Mr. Murphy’s petition and granted him custody of the three minor children. From this order Mrs. Murphy has appealed. Mrs. Murphy contends on this appeal the district court erred in (1) failing to hear evidence of changed conditions regarding the best interests and welfare of the minor children, and (2) in giving full faith and credit to the order of the circuit court of Jackson county, Missouri. In view of our disposition of this appeal, Mrs. Murphy’s first contention is the only one which need be considered in depth. Mrs. Murphy asserts that the district court was charged with the responsibility of hearing evidence about changed conditions affecting the welfare of the minor children under the provisions of K. S. A. 60-1505 (cl), and the doctrine of parens patriae. The pertinent portion of K. S. A. 60-1505 (d) on which Mrs. Murphy relies is: “. . . and the court may make such other orders as justice and equity or the welfare of a minor physically present in the state may require. . . .” Mrs. Murphy argues that the statute places on the district court the responsibility of providing for the best interests and welfare of minor children physically present within the state, and, therefore, the court should hear evidence before acting on a petition for writ of habeas corpus, regardless of the contents of the answer to the writ. We believe the provisions of K. S. A. 60-1504, requiring the person to whom a writ is directed to file a verified answer containing a statement of the authority or reasons for the restraint and a copy of the written authority for the restraint, if any, may not be passed over in such a superficial manner. An examination of the pleadings in this case is enlightening. Mr. Murphy’s petition for writ of habeas corpus alleges that the restraint of the children by the mother is unlawful and illegal for the reason the order of the Missouri court granted custody of the children to him. The petition further alleges that Mrs. Murphy, disregarding said order, “secreted said minor children of the parties out of the State of Missouri,” and now unlawfully restrains them in Sedgwick county, Kansas. A copy of the Missouri order is atached as an exhibit to the petition. In her answer to the writ Mrs. Murphy admits the children are physically present in Sedgwick county but alleges she is entitled to their custody because the Missouri order is void for lack of jurisdiction over her or the children. Paragraph 2 of her answer reads as follows: “Further, this respondent alleges that there is no unlawful restraint of the parties’ children as alleged in the petition. Respondent further specifically pleads that the court, pursuant to Kansas Code of Civil Procedure, Section 60-1505 (d), determine who is entitled to custody of the children based upon the children’s welfare.” The only authority or justification set forth in Mrs. Murphy’s answer for the restraint of the children is the lack of jurisdiction of the Missouri court to enter its order changing custody to Mr. Murphy. The district court of Sedgwick county specifically found against her on this point, and Mrs. Murphy now on appeal concedes the validity of the Missouri order. In the second paragraph of her answer Mrs. Murphy merely requests the court to determine the matter of custody based upon the children’s welfare. This is the very issue that was determined by the Missouri court at the hearing held on October 30, 1964, at which Mrs. Murphy failed to appear. Her answer amounts to no more than a request to relitigate the right to custody without alleging any change of conditions or circumstances that would constitute “authority or reasons for the restraint” as required by the statute (K. S. A. 60-1504). When a parent who has legal custody of minor children under a valid decree of a sister state institutes a habeas corpus proceeding against the parent who has possession of the children in this state and bases his right to recover physical custody on the foreign custody decree, the burden is on the parent who has possession of the children to establish that there has been a change in circumstances and conditions since the date of the foreign decree that requires a modification thereof for the best interests and welfare of the children. (Price v. Price, 187 Kan. 292, 356 P. 2d 1013; Moloney v. Moloney, 163 Kan. 597, 185 P. 2d 167.) There is nothing in Mrs. Murphy’s answer to indicate she desired to assume the burden of showing changed conditions or circumstances. Mrs. Murphy contends that regardless of the provisions of K. S. A. 60-1505 (d), the trial court should have heard evidence and inquired into the welfare and best interests of the children under the doctrine of parens patriae, sometimes referred to as the rule of “independent investigation.” (See Ehrenzweig, Interstate Recognition of Custody Decrees, 51 Mich. L. Rev. 345 [1953], and Comment, Child Custody and the Conflict of Laws in Kansas, 10 Kan. L. Rev. 595 [1962].) The doctrine, long adhered to in this state and recently recognized in Turner v. Melton, 194 Kan. 732, 402 P. 2d 126, is based on the theory that the state, in its relation as parens patriae, has the right and duty to act in the best interests and welfare of minor children. The trial court in a habeas corpus proceeding may consider the state’s interest and invoke the doctrine in an appropriate case if the matter is raised by the pleadings. The significance of the pleadings was observed in the landmark case of Wear v. Wear, 130 Kan. 205, 285 Pac. 606, 72 A. L. R. 425, wherein it is stated: “In a habeas corpus proceeding brought by one of the parents against the other for the custody of their child, the court has before it the question of the rights of the parties as between themselves, and also has before it, if presented by the pleadings and the evidence, the question of the interest which the state as parens patriae has to promote the best interests of the child.” (Syl. ¶3.) (Emphasis added.) In the instant case the allegations of Mrs. Murphy’s answer were insufficient to require the district corut to consider the state’s interest in its relation as parens patriae and make inquiry into the welfare of the minor children. In view of what we have said, we conclude the district court did not err in failing to hear evidence about any change in conditions and circumstances. The force and effect of our disposition of the first point on appeal render superfluous the consideration of Mrs. Murphy’s second point —that the district court erred in giving full faith and credit to the order of the circuit court of Jackson county, Missouri. We note, however, that Mrs. Murphy cites numerous cases, including Wear v. Wear, supra, Moloney v. Moloney, supra, Moloney v. Moloney, 167 Kan. 444, 206 P. 2d 1076, and Price v. Price, supra, to sustain her contention that a foreign custody decree is not entitled to “full faith and credit.” An extensive analysis of these decisions on this question is unnecessary. The cases are helpful in that they illustrate the importance of a respondent pleading changed conditions and circumstances when modification of a foreign custody decree is sought. In the Moloney and Price cases the answers to the writs of habeas corpus alleged changed conditions and circumstances occurring subsequent to the entry of the foreign custody decree. The district court in each instance heard evidence offered to support such allegation. In the Wear case the answer alleged the petitioner was an unfit person to have custody of the child, and that it would be to the child’s best interests to remain with the respondent. There the district court offered to hear evidence of changed conditions which would justify modification of the foreign custody decree, but the respondent offered no evidence to support his allegation. Although in the instant case the district court’s apparent reason for hearing no evidence was premised on its conclusion of law, “That the Circuit Court of Jackson County, Missouri retains continuing jurisdiction in the matter of the custody of the minor children involved herein,” we affirm the decision of the district court solely on the absence of any allegation in Mrs. Murphy’s answer that because of changed conditions and circumstances relating to the best interests and welfare of the children, the Missouri custody decree should be modified. The import of our holding is not intended to detract in any way from what was said and decided in the above-cited cases. Recause of the insufficiency of the answer, the district court committed no error in failing to hear evidence, and, under the circumstances, correctly concluded that full faith and credit should be given to the custody decree of the circuit court of Jackson county, Missouri. 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The opinion of the court was delivered by Fontron, J.: The defendant, Harrison Jolly, has appealed from a conviction of robbery in the first degree in violation of G. S. 1949 (now K. S. A.) 21-527. For the sake of clarity, the appellant will be referred to throughout this opinion as the defendant or the accused, and the appellee as the state. The evidence introduced by the state at the trial showed, in brief, that on the day of the robbery, the victim, Russell B. Thomas, obtained two bags of money from a bank and proceeded to drive to his store; on tibe way, he noticed through his rear-view mirror that he was being followed by two colored men in a pink Cadillac car; as he parked off the alley behind his store, Thomas was robbed at gun point of the two bags of money and his car keys by Marvin Fuller, the accused’s codefendant; at this point Thomas did not see the accused. A short time thereafter, the pink Cadillac, owned and driven by the defendant, was spotted by Kansas City police officers and a high-speed chase ensued during which two revolvers, two hats and at least one of the bags of money were thrown from the car. Eventually, the defendant stopped his car and both he and his companion jumped out and ran, despite police commands to halt. Shots followed, and the defendant was hit and wounded while his companion escaped. On being approached by the officers as he lay on the ground, the defendant was asked if he had participated in the robbery and he replied that he had. The defendant testified, albeit without corroboration, that on the morning of tibe robbery he first took his friend, Fuller, to see about a job change, after which he commenced to follow tibe Thomas car because Fuller said he saw a friend in that station wagon and would like to catch him; that when Thomas turned into the driveway, he, the defendant, drove around on the street side, where Fuller asked to be let out and said he would not be gone long; that he let Fuller out and parked around the corner; that Fuller went in the building, returned about ten minutes later and told accused to take him home; on reaching the intersection of Seventh Street and the boulevard he noticed the red light of a police car and Fuller then, for the first time, told defendant that the police were after him and that he had stuck up that place back there; that defendant panicked and told Fuller to leave but instead Fuller threw out the money and some other stuff; that they drove a little further when Fuller said he wanted out and that as the car pulled to the curb, Fuller jumped and ran and the defendant jumped, too, because he didn’t know what to do; that he was shot, but that he did not tell the police officer he had participated in the robbery. After the jury returned a verdict of guilty, the defendant filed a motion for a new trial, which was presented and overruled. The instant appeal was then perfected. The several specifications of error will be discussed seriatim. It is first contended that the court erred in permitting the police officer to testify that the defendant said he had participated in the holdup. This contention must fail for three reasons. In the first place, the record shows no objection was made to the testimony. K. S. A. 60-404 provides, in substance, that no verdict shall be set aside, or judgment based thereon be reversed, because of erroneous admission of evidence, unless the record reveals that an objection, specifying the ground thereof, was timely interposed. This statute merely restates the practice which has long existed in this state. (See Advisory Committee Notes, Gard’s Kansas Code of Civil Procedure, annotated, p. 367.) This court has consistently adhered to the rule that alleged errors in the admission of evidence will not be reviewed on appeal in the absence of timely objection made thereto. (Fleming v. Latham, 48 Kan. 773, 30 Pac. 166; Moyer v. Dolese Brothers Co., 162 Kan. 484, 178 P. 2d 270; State v. Gates, 196 Kan. 216, 410 P. 2d 264. This contemporaneous objection rule serves a legitimate and useful puipose in the orderly administration of justice at both trial and appellate levels. (State v. Freeman, 195 Kan. 561, 408 P. 2d 612.) Secondly, this claim of error was not contained in defendant’s motion for new trial nor is it shown to have been presented to the trial court when the motion was argued. For these reasons, also, the question is not subject to review. (State v. Burnett, 189 Kan. 31, 367 P. 2d 67; State v. Ryan, 193 Kan. 672, 396 P. 2d 363; State v. Gates, supra.) This is true even though the defendant contends that his constitutional rights were violated. (State v. Aeby, 191 Kan. 333, 336, 381 P. 2d 356; State v. Malone, 194 Kan. 563, 568, 400 P. 2d 712.) Finally, even if the admissibility of the now challenged testimony was properly before this court, we believe the circumstances shown of record do not bring this case within the ban of Escobedo v. State of Illinois, 378 U. S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758. The colloquy between the police officer, Kilburn, and the accused took place immediately upon Kilburn’s arrival at the spot where the defendant lay wounded. The discourse was very brief and appears to have been spontaneous. Kilburn testified as follows: “I first asked the man if he was hurt badly and he said he thought so. I then asked him if he participated in the holdup at 12th and Minnesota; he said that he did; I then sent my partner after the ambulance for him. I then asked him who the other man was and he didn’t answer me.” When this conversation occurred, the defendant had not been accused of this or any other holdup. Suspicion of having participated in this robbery had not become focused on him. Clearly, the few words spoken, which are non-coercive in character, were not designed to elicit a confession from the defendant, but were simply part of a legitimate and necessary investigation into a recently committed crime of violence. We believe the recorded facts bring this case within the ambit of United States v. Cone, 354 F. 2d 119 (1965), and United States v. Robinson, 354 F. 2d 109 (1965), both of which hold admissible inculpatory statements made during brief, casual, non-coercive questioning at the time of or shortly after an arrest. A somewhat analogous case is People v. Green, 46 N. Y. Misc. 2d 812, 260 N. Y. S. 2d 941, where a New York court ruled admissible a brief conversation between a police officer and the accused held in a hallway where the accused and certain stolen property were found. In its opinion, the court cites People v. Gunner, 15 N. Y. 2d 226, 257 N. Y. S. 2d 924, 205 N. E. 2d 852, to the effect that the exclusionary rule should not be extended to render inadmissible inculpatory statements obtained by. law enforcement officers contemporaneously with an arrest even though the person arrested is not made aware of his privilege to remain silent and of his right to a lawyer. The defendant next argues that it was error to permit the state to refer repeatedly to his refusal to make a statement two days after the incident occurred and while he was confined in the hospital. The record shows but two references to the refusal. Officer Shannon testified that when he first sought to talk with the accused at the hospital, the latter was under sedatives and was in no condition to talk and that two days later he returned, at which time the accused, on being advised of his rights, refused to talk. The court ruled that evidence inadmissible. Later, on cross-examination, the accused was asked about his refusal to make a statement, but the subject was not pursued after an objection was raised. Although the accused states in his brief that the prosecution referred to this subject in final argument, the record does not substantiate that claim. The defendant has not shown that he was substantially prejudiced by the state’s actions in the above regard. Not only is there no evidence of repeated references to the subject, but the court sustained the objections interposed by the defense. The sole authority cited by accused is State v. Peterson, 102 Kan. 900, 171 Pac. 1153, where the county attorney commented on the failure of the defendant’s wife to testify. We think that case is not in point. Our statute (K. S. A. 62-1420) prohibits comment on the failure or refusal of a defendant, or his spouse, to testify; there is no such statutory prohibition in case of a refusal to make an out-of-court statement. Moreover, the Peterson case holds, consistently with the provisions of K. S. A. 62-1718 and our many decisions, that error must be shown to have prejudicially affected a substantial right of an accused before it can be made the basis of reversal. (State v. Brooks, 74 Kan. 175, 85 Pac. 1013; State v. Addington, 158 Kan. 276, 282, 147 P. 2d 367.) It is next urged that error was committed in permitting Thomas to' relate a brief conversation had with Fuller at the scene of the robbery together with certain conclusions he drew from Fuller’s remarks. No objection was made to this evidence when introduced nor was its admission mentioned in defendant’s motion for a new trial. Hence, under decisions hereinbefore cited, this contention is not properly before us. Furthermore, statements made by Fuller during the robbery would be admissible as declarations of a co-conspirator made during the existence of the conspiracy. (State v. Shaw, 195 Kan. 677, 408 P. 2d 650.) In addition, we have studied the entire Thomas testimony and are convinced that no prejudice resulted therefrom to the defendant’s substantial rights. A fourth error alleged is the trial court’s refusal to instruct on the offense of being an accessory after the fact, it having been the defendant’s position throughout the trial that his sole connection with the robbery was in helping Fuller make his escape and avoid arrest. The court declined to give the requested instruction on the ground that the charge of being an accessory after the fact was not comprehended within the charge set out in the information, wherein the defendant was alleged to be a principal. We agree. In State v. McAlister, 139 Kan. 672, 33 P. 2d 314, this court held: “The offense of being an accessory after the fact, as defined by R. S. 21-106, is a separate and distinct offense from that committed by the person who is aided; it does not partake of the nature of the other offense nor is it a degree of it. Where the information on which the defendant is being tried does not charge an offense under the above section of the crimes act, an instruction relative to defendant being an accessory after the fact is improper, and the court’s refusal to give such an instruction is proper.” (Syl. f 3.) In the recent case of State v. Turner, 193 Kan. 189, 392 P. 2d 863, we reiterated the rule when we said: “. • • Where, as in the instant case, the information charges murder in the first degree under G. S. 1949, 21-401, it does not include being an accessory after the fact, which is a separate and distinct offense, and the court properly refused to give the requested instruction on the offense not included in the information. (G. S. 1949, 21-106; State v. Phillips, 136 Kan. 407, 410, 15 P. 2d 408.)” (p. 200.) We pass to the defendant’s fifth claim that the court improperly instructed the jury on circumstantial evidence. The challenged instruction follows: “You are instructed that evidence is of two kinds: Direct and circumstantial. Direct evidence is when a witness testifies directly of his own knowledge of the facts to be proved. Circumstantial evidence is proof of certain facts and circumstances in a given case from which the jury may infer other and connected facts which usually and reasonably follow, according to the common experience of mankind. Crime may be proved by circumstantial evidence as well as by direct testimony of eye-witnesses, but the facts and circumstances in evidence must not only be consistent with each other and with the guilt of the defendant, but they must be inconsistent with any reasonable theory of defendant’s innocence.” We discern nothing inherently wrong with this charge. It seems, in essence, to cover the subject adequately. Moreover, there is nothing in the record to indicate that the accused objected to the instruction when given, or requested any different or other instructions on the subject. Neither was the point raised in the motion for new trial. The contention lacks merit. The defendant complains of the trial court’s refusal to direct a verdict of not guilty of robbery, his point being that, under the evidence, he was no more than an accessory after the fact. Although the defendant did testify that he was unaware of the robbery until after its commission and played no part in its perpetration, he ignores the fact that there was other evidence, both direct and circumstantial, from which the jury might find that he did participate in the crime. With the evidence in such condition, the trial court would not have been warranted in directing a verdict in favor of the defendant. In State v. Jackson, 42 Kan. 284, 22 Pac. 427, we said: “. . . In criminal cases it is never competent for the court to take a question of fact away from the jury and to decide it itself. . . (p. 386.) More recently, in State v. Hanks, 179 Kan. 145 292 P. 2d 1096, this court declared: “. . . It is the rule, subject to some exceptions not involved in this case, that in criminal cases it is never proper for the court to take a question of fact away from the jury and to decide it itself. . . .” (p. 147.) In an appeal from the denial of a defense motion for a directed verdict, this court is concerned only in ascertaining whether there was sufficient evidence to go to the jury. (State v. Cooper, 190 Kan. 101, 372 P. 2d 289; State v. Gregory, 191 Kan. 687, 383 P. 2d 965.) We have no hesitancy in saying there was ample evidence in this case to require the overruling of defendant’s motion, and the trial court committed no error in so doing. In his seventh specification of error, the defendant complains of remarks made in the state’s argument to the jury. The basis of this complaint seems somewhat tenuous but its gist is that attention was called to the fact that there were two of everything — two men, two hats, two bags of money, two pairs of gloves and two guns— the inference being left, so the defendant avers, that one of the guns belonged to him. Although the record shows no objection made at the trial, and the point is not included in the motion for new trial, we have nevertheless carefully examined that part of the final argument which is abstracted, and we believe there is nothing shown which can be said to exceed the bounds of fair discussion. Our rule has long been that while counsel may not comment on facts outside the evidence in summing up a case to a jury, reasonable inferences may be drawn from the evidence and considerable latitude allowed in analyzation and emphasis. (State v. Wilson, 108 Kan. 433, 195 Pac. 618; State v. Lopez, 182 Kan. 46, 318 P. 2d 662.) Lastly, the defendant specifies as error the overruling of his motion for new trial, assigning as a basis therefor the several alleged errors which we have already decided adversely to his contentions. Ordinarily, the granting or denial of a motion for new trial lies within the sound discretion of the trial court, and its ruling thereon will not be disturbed in the absence of a showing of an abuse of discretion or other manifest error. (Henderson v. Kansas Power & Light Co., 188 Kan. 283, 289, 362 P. 2d 60.) No such showing has been made in this case. We find no error to warrant a reversal and the judgment of the trial court is affirmed.	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The opinion o£ the court was delivered by Hatcher, C.: This is an appeal from a summary judgment in an action growing out of the alleged negligent operation of automobiles resulting in a collision and death. The chief issue on appeal is whether there remained a genuine issue as to any material fact. With this issue in mind we state the facts which may be gleaned from the pleadings. On June 21, 1964, at about 12:10 A. M., the defendant, George W. Turley, was driving a 1958 Ford automobile on Langdon Lane about four miles south of Pittsburg in Crawford County, Kansas. Langdon Lane, which was formerly U. S. Highway 69, is a blacktop public highway and is straight and level for several miles from the point involved in this controversy. The Ford automobile being driven by Turley was towing a 1955 Chevrolet which was equipped for drag racing. The Chevrolet was being steered by the defendant, Bob Berry. Joe Lee was riding as a passenger in the Ford. At the time and place above mentioned, Gary Duane Secrist, while driving a Chevrolet Corvette in a southerly direction, overtook and collided with the Chevrolet from the rear. As a result of the collision, Patricia Elaine Hughes, a passenger in the Corvette, was thrown on to the east side of the highway and seriously injured. Some ten or fifteen minutes later while Gary, who had been administering to Patricia, was attempting to remove her from the highway or shield her with his body, a Dodge pick-up truck driven by Percy C. Montee toward the north, struck and killed them both. The parents of Gary filed this action for damages as a result of his death. The petition specifically alleged: “. . . That at said time and place the defendants, and each of them, were negligent as hereinafter alleged and the combined and concurring negligence of the defendants, and each of them, proximately and directly caused the death of plaintiffs said son and plaintiffs damages as hereinafter set forth. “4. That at said time and place the defendants, and each of them, faded to use ordinary care and were negligent in the following respects, to-wit: “a. The defendants Berry, Turley and Lee negligently failed to have said towed Chevrolet equipped with a red tail light visible for 500 feet to the rear.” The defendant, Montee, was charged with negligence in numerous particulars. The petition alleged a joint enterprise on the part of the defendants other than Montee. The petition further alleged: “That as the proximate and direct result of the combined and concurring negligence of the defendants, and each of them, plaintiffs said son was injured and killed as aforesaid. . . .” The prayer was for statutory damages in the amount of $25,000 plus funeral expenses. The defendants, other tihan Montee, filed separate answers in which they denied negligence; denied that the original collision caused serious injury to Patricia; denied negligence which was the proximate and direct cause of Gary’s death; denied that they were engaged in a joint adventure, and alleged as a special defense: “That the loss and damages which plaintiff sustained were contributed to by and caused by the carelessness, negligence and want of attention or omission on the part of the decedent, Gary Duane Secrist.” The record does not disclose an answer by the defendant, Montee, but it does appear that in answer to an interrogatory plaintiff admitted that: . . A Covenant Not To Sue was entered into by plaintiffs and Percee C. Montee, November 27, 1964, and that defendant’s insurance company paid plaintiffs the sum of $9,000.00. This Covenant Not To Sue was as to defendant Percy C. Montee only.” The defendants, other than Montee, filed a motion for summary judgment based on the contention that the pleadings, answers to interrogatories and affidavits on file show that there is no genuine issue as to any material fact, and that the defendants are entitled to a judgment as a matter of law. The trial court entered summary judgment for defendants. The plaintiffs have appealed. The appellants contend that it was error to sustain the motion for summary judgment for the reason there existed a genuine disputed issue of fact as to the negligence of the defendants and whether such negligence concurred to cause the death of plaintiffs’ son, Gary. We are forced to agree with appellants’ contention. Considering first the legal approach to the propriety of the summary judgment, we are forced to conclude that there remains a genuine issue as to material facts. A summary judgment may not be issued unless . . the pleadings, dispositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (K. S. A. 60-256 [c].) This court has had occasion since K. S. A. 60-256 (c) went into effect to pass on the purpose and propriety of the use of motions for summary judgments. In Herl v. State Bank of Parsons, 195 Kan. 35, 403 P. 2d 110, we announced a few basic principles which should govern the use of motions for summary judgments. In Brick v. City of Wichita, 195 Kan. 206, 403 P. 2d 964, the matter was quite thoroughly treated in a well written opinion. In the above cases the judgments granting the motions for summary judgment were reversed on the ground there remained a genuine issue as to a material fact. In Hartman v. Stumbo, 195 Kan. 634, 408 P. 2d 693, and also in Board of Satanta v. Grant County Planning Board, 195 Kan. 640, 408 P. 2d 655, we held that the record left no genuine issue as to a material fact and that the moving party was entitled to judgment as a matter of law. These cases would indicate that the propriety of a summary judgment must depend on the application of the clear provisions of the statute to the facts and circumstances of each particular case. The statement of certain general principles applicable to the specific issues in this case may aid in the future application of the statute. However, care will be taken to stay close to the provisions of the statute itself which are quite clear as to procedure and standards to be applied in passing on such motions. An attempt to apply and follow the multitude of cases considering the federal or similar state rules may cause a court to be governed more by aphorisms announced in the opinions than by the unambiguous provisions of the statute. The purpose of the rule is to obviate delay where there is no real issue of fact. It should do much to eliminate nuisance litigation and save time and expense. However, a summary judgment should never be granted for the single purpose of saving the time and expense of a trial, or be used for the purpose of depriving litigants of a jury trial. The manifest purpose of the rule is to eliminate sham claims which might otherwise cause needless and time consuming litigation. In the final analysis a court should not determine the factual issues on a motion for summary judgment but should search the record for the purpose of determining whether a factual issue exists. If there is a reasonable doubt as to the existence of a material fact a motion for summary judgment will not lie. No matter how the explanation of the rule is phrased we always return to the language of the rule, there must be left “no genuine issue of any material fact.” The proper application of the rule leaves but two rather simple questions for determination, i. e., what is a “genuine issue” and what is a “material fact?” The answer as to what constitutes a “genuine issue as to any material fact” appears to account for most of the voluminous opinions on the question. It may be said that an issue of fact is not genuine unless it has legal controlling force as to a controlling issue. A feigned or imaginary issue is not a genuine issue. A disputed question of fact which is immaterial to the issues does not preclude summary judgment. If the disputed fact, however resolved, could not affect the judgment, it does not present a genuine issue of a material fact. It has been said that before summary judgment is granted the court must be convinced that the issue is not genuine, or that there are only immaterial or imaginary factual issues. It would serve no useful purpose to cite the numerous cases touching on the rules above set forth as pronounced by the federal courts and the courts of our sister states, many of which are not in harmony. Those wishing to research the question further than the Kansas cases cited will find the above rules announced and supported by a collection of cases in 3 Rarron and Holtzoff, Federal Practice and Procedure, Summary Judgments, § 1231, et seq., and 3 Vernons Kansas Statutes Annotated, § 60-256. Considering the facts in the instant case to which the rules announced above are to be applied, we find that definite factual issues were framed by the pleadings, i. e., were the appellees guilty of negligence; was the negligence of appellees the proximate cause of the death of appellants’ son, Gary, and was the deceased son guilty of contributory negligence? After the issues were formed by the pleadings the parties started discovery proceedings which resulted in affidavits, answers to interrogatories and a deposition. Ignoring the discovery evidence in favor of the appellees’ position, strong though it may be, we find an affidavit by Don Munsell supporting appellants’ contentions, which reads: “1. That on the night of June 20-21, 1964, at a few minutes after midnight, I was driving south on old Highway 69 south of Pittsburg, Kansas. “2. At a point two to four miles south of Pittsburg, I overtook from the rear and almost collided with a 1955 Chevrolet coupe. “3. I avoided a collision by swerving the automobile I was driving sharply toward my left. The car I was driving almost collided with this Chevrolet because there were no lights on the car and I did not see it until I was practically on it. There were no red lights or reflectors showing toward the rear. This 1955 Chevrolet had big drag racing tires on it. I could not tell the color because I only saw it briefly. “4. Shortly after passing the Chevrolet, I stopped my car on a side road to check the tires and the Chevrolet did not pass me. “6. This Chevrolet was being towed by another car. The two cars were coupled close together. The other car had lights on it which I saw as I passed.” We have not ignored but find no merit in the attack which appellees make on the affidavit. We must conclude that the affidavit, although disputed by appellees, presents a genuine issue of a material fact on the question of negligence of the appellees and the contributory negligence of the deceased. In support of their contention that the deceased was guilty of contributory negligence as a matter of law appellees call our attention to the rule announced in Wright v. Nat’l Mutual Cas. Co., 155 Kan. 728, 129 P. 2d 271, as follows: “Where a person drives an automobile along a highway on a dark night at such speed that the car cannot be stopped or tinned aside within the range of vision of the lights on his car, such person is guilty of negligence as a matter of law.” (Syl. 2.) The above rule, like most others, has its exceptions which are governed by a question of fact. A traveler on the highway at night cannot lay a trap for a fellow traveler and escape liability. In Briles v. Hurley, 194 Kan. 414, 399 P. 2d 840, we held: “Under the facts, conditions and circumstances disclosed in the opinion the operator of a motor vehicle was not guilty of contributory negligence as a matter of law for failure to avoid a harvester-thresher combine proceeding on the wrong side of the highway at night without lights.” (Syl. 2.) In the opinion we stated at page 417: “. . . True there were lights on the tractor but there were no lights on tlie combine it was pulling and the combine extended over on the wrong side of the highway. The record fails to disclose how appellant’s correlation of her speed and ability to stop with her ability to see would have avoided the accident.” Again in Grisamore, Administratrix v. Atchison, T. & S. F. Rly Co., 195 Kan. 16, 403 P. 2d 93, it was held: “The Supreme Court of Kansas has recognized qualifications or exceptions to the general rule that a driver must be able to stop his car within the clear distance ahead, such as where the rays from headlights are absorbed by the obstructing object; where there is an object blending with the street or general background; where the vision of the approaching motorist was affected by street lights near the obstructing object or on the opposite side of it, or where the obstructing object was on a grade so that the light beams projected under and past it.” (Syl. 6. See, also, Deemer v. Reichart, 195 Kan. 232, 404 P. 2d 174.) Appellees suggest: “It is obvious that appellants cannot begin to carry the burden of their basic element of proof. They simply cannot prove that appellees were negligent in towing a vehicle without a proper taillight. The appellees motion for summary judgment would properly be sustained upon this point alone.” The same contention was made and answered in Brick v. City of Wichita, 195 Kan. 206, 403 P. 2d 964, where it was held: “Where a motion for summary judgment is filed, a mere surmise or belief by the trial court, no matter how reasonably entertained, that a party cannot prevail upon a trial, will not justify refusing him his day in court with respect to material issues which are not clearly shown to be sham, frivolous, or so unsubstantial that it would obviously be futile to try them. It must be shown conclusively that there is no genuine issue as to a material fact and that the moving party is entitled to judgment as a matter of law.” (Syl. 4.) Appellants may have assumed a heavy burden in undertaking to establish the allegations of their petition, but they have a right to attempt to carry it. The appellees stress their contention that their negligence, if any, was too remote to constitute the proximate cause of the death. They suggest that where a negligent act creates a condition which is subsequently acted upon by another unforseeable, independent and distinct agency to produce the injury, the original act is the remote and not the proximate cause of the injury, even though the injury would not have occurred except for the original act. We have no quarrel with appellees’ statement of the law. However, we cannot agree with their assumption that there is no genuine issue of substantial facts on the question in this case. The only facts we have as to tire extent of injury to Patricia Hughes, necessitating her remaining on the highway, is a deposition of Lida May White, a nurses aid in St. John’s Hospital at Joplin, Missouri, and who arrived at the scene about two minutes after the accident. She testified: “I went over to the girl, and the boy was talking — trying to reassure her and she said, ‘Why did this happen to us.’ She complained of her back and shoulders and head all hurting and she had an abrasion on her back and I asked for a blanket to cover her with so she wouldn’t go into shock.” We cannot determine at this point whether it was necessary to leave Patricia on the highway for treatment because of appellees’ negligence. As to the negligence of Montee, the nurses aid testified: “As precautions, we had two cars parked slightly ahead on the west side with their lights on and the two cars — I mean the two cars in the original collision had their lights on and they had a flashing light on the front of their car and then there was a car on the east side that had its lights on and then there were three flagmen on the south there. Ah of this was to the South of where the boy and girl were. “The boy and girl were both in the east lane of the pavement. “After a few minutes, and after we put a blanket over the girl, she had gotten thoroughly calm and the boy and girl were talking to each other. “As I started back to our car I turned and saw Montee’s truck and it was coming toward — it didn’t slow down. It was coining from the south, headed north. It was a pickup truck. “All of the precautions mentioned before were in place when the Montee pickup truck came along. “As the Montee pickup truck came through the three flagmen shouted and waved their arms, and one of them had to jump back as the pickup came through to avoid being hit himself. The one that had to jump back was about 60 feet south of the boy and girl and other two were 40 or 50 feet south of the boy and girl. “There were 10 or 12 people at the scene when the Montee pickup truck came through, and about six cars were south of the boy and girl, with their lights on.” Considering the facts which we have before us in the light most favorable to appellants, as we are bound to do, we cannot say as a matter of law that a reasonable person would not have anticipated that as the result of appellees’ negligence which placed Patricia upon the traveled part of the highway where she was being administered to by Gary, that the driver of another vehicle on the highway traveling at a high and reckless rate of speed, without a proper lookout and without proper control, would strike and kill the two children. In Gard v. Sherwood Construction Co., 194 Kan. 541, 400 P. 2d 995, we held: “The question of negligence, including the determination of proximate cause, ordinarily rests in the province of the jury, or the court, as the trier of the facts. “The rule that the causal connection between an actor’s negligence and an injury is broken) by the intervention of a new, independent and efficient intervening cause, so that the actor is without liability, is subject to the qualification that if the intervening cause was foreseen or might reasonably have been foreseen by the first actor, his negligence may be considered the proximate cause, notwithstanding the intervening cause.” (Syl. 2 and 3.) In 3 Barron and Holtzoff, Federal Practice and Procedure, Summary Judgment, § 1232.1, dealing with the feasibility of summary judgments in negligence cases we find the following statement: “Summary judgment will not usually be as feasible in negligence cases, where the standard of the reasonable man must be applied to conflicting testimony, as it is in other kinds of litigation. A study made in one district showed that in 292 negligence cases pending in a particular year, only one motion for summary judgment was made and that was denied. . . .” (p. 106.) The authors go on to state, and we do not mean to imply otherwise, that there are circumstances in which summary judgment may be rendered in a negligence case. As the record indicates in this case that there remains a genuine issue as to a material fact, the summary judgment must be reversed and the case remanded to the district court for a trial of the factual issues. It is so ordered. APPROVED BY THE COURT.	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The opinion of the court was delivered by Kaul, J.: This is an action for damages by Hazel Canfield, plaintiff (appellee), against James Oberzan, defendant (appellant), and E. R. McKinney, d/b/a The McKinney Motor Co., codefendant, for damages received by appellee arising from a two automobile collision at a country road intersection on May 20, 1962, at about 7:30 p. m. The case was tried to a jury, commencing on June 1, 1964, and on June 4, 1964, the jury returned its verdict in the sum of $10,750.00 in favor of appellee Canfield against appellant Oberzan. Miss Canfield alleged in her petition that appellant Oberzan was the agent of defendant McKinney but the trial court held in favor of McKinney on a motion for summary judgment and McKinney was eliminated from the case as a codefendant. However, McKinney filed a cross-petition against both plaintiff Canfield and defendant Oberzan and recovered a judgment against Oberzan from which there was no appeal. The judgment of McKinney is not involved in appellant Oberzan’s appeal from the Canfield judgment. Immediately prior to the collision plaintiff Canfield, a teacher in the Oswego public schools, accompanied by her father and mother, was driving her 1959 Chevrolet in a southerly direction at a speed of about 40 miles per hour on a graveled country road about 8 miles north of Oswego in Labette county. At the same time Oberzan, accompanied by his wife and children, was driving as a prospective purchaser a 1959 Pontiac owned by McKinney toward the west on an east-west graveled country road. The automobiles collided at a wide open country intersection, resulting in injuries to Miss Canfield, her parents and the occupants of the Oberzan car, as well as to both vehicles. Plaintiff Canfield’s amended petition charged defendant Oberzan with various acts of negligence. Defendant Oberzan answered, denying negligence on his part and charging plaintiff Canfield with acts of contributory negligence. Canfield’s reply was a general denial. In his cross-petition defendant McKinney charged both plaintiff Canfield and defendant Oberzan with negligence which caused the collision. At the trial the parties stipulated as to the damages to the Canfield and McKinney cars. The Canfields were returning to their home located about two miles south of the intersection. The Oberzans were on their way home to Oswego. The Getman and Goedeke houses are located, one on each side of the north-south road traveled by Canfield at a high point on the road approximately 100 yards, more than a quarter of a mile (about 1900 feet) north of the intersection. The graveled north-south road slopes downhill from that point to the intersection. When Miss Canfield was at the elevated point she looked to the east and saw a car coming from the east, which she judged to be about a half mile east of the intersection. Miss Can-field testified she first saw the other car approaching when she was going down the incline and again saw it before entering the intersection at which time the Oberzan car was still twice as far from the corner as she was. She further testified that she looked in all directions before approaching the intersection. Oberzan did not see the Canfield car until just shortly before the impact when he was about six car lengths east of the intersection. Witnesses for the plaintiff testified that there was no obstruction of view to a driver coming from the north approaching the intersection. Defendant Oberzan testified there were some weeds on the north side and east of the intersection on the east-west road and that was the only reason he could think of as to why he didn’t see the plaintiff. The testimony of deputy sheriff White fixed the point of impact at twelve feet, six inches from the east entrance of the intersection and approximately four feet and two inches from the north edge of the intersection. He determined the point of impact by the tire markings on the gravel. The weather was clear, the road was dry and graveled within the intersection. There were no stop signs or traffic controls and both roads were straight and level leading up to the intersection. The north road was twenty-two feet wide. The south road was twenty-two and a half feet wide. The east road was twelve feet wide and the road west of the intersection was thirteen feet wide. The intersection also had four curved side lanes so that drivers desiring to turn could do so without using the center lane leading to the center of the intersection. Mr. Oberzan testified he was driving between fifty and fifty-five miles per hour when he applied his brakes. Miss Canfield testified that she was driving about thirty-five miles an hour when she entered the intersection. She further testified that as she approached the intersection she did not attempt to stop or make any turn as she thought she had plenty of time to go across. The front of the Pontiac driven by Oberzan struck the Canfield Chevrolet on the left-hand side at the point of impact. Dr. I. J. Waxse, plaintiffs attending physician, called as a witness, testified that plaintiff was in shock and severe pain following the accident. X-rays were taken by Dr. Waxse and disclosed that plaintiff had suffered multiple fractures from the second through the eighth left ribs, a fracture of the lower right humerus and a possible oblique displacement. The collision was investigated by deputy sheriff White, of Labette county, who did not arrive at the scene until about 9:00 p. m. At the conclusion of plaintiffs evidence defendant Oberzan filed and argued a motion to dismiss and a motion for directed verdict on the grounds of contributory negligence of plaintiff. The motions were overruled by the court. At the conclusion of the evidence of both parties defendant Oberzan filed a motion for directed verdict which was overruled by the court. Nine requested instructions were submitted by defendant Oberzan, the court giving one (instruction number five) and defendant Oberzan objected to the court’s failure to submit the remaining requested instructions. Defendant Oberzan objected to instruction twenty-one on the grounds that it was misleading, erroneous and inadequate to instruct the jury on the question of contributory negligence. The court submitted forty instructions to the jury. The jury returned two verdicts, one in favor of McKinney against Oberzan for damages to McKinney’s Pontiac, from which there is no appeal, and a second verdict in favor of plaintiff Canfield and against Oberzan for $10,750. In addition to their general verdicts answers to interrogatories were returned as follows: “1. Do you find that plaintiff was negligent, which negligence contributed to and was a proximate cause of the collision? “Answer: No. “2. Do you find the defendant Oberzan guilty of negligence, which was a proximate cause of the collision? “Answer: Yes. “3. If you answer the above question in the affirmative, please state of what act or acts of negligence you find the defendant guilty. “Answer: Failure to observe proper precaution for safety at intersection.” Judgments were entered on the verdicts. Defendant Oberzan filed motions for new trial and for judgment in accordance with his motion for directed verdict which were argued and overruled by the court. Oberzan duly perfected his appeal to this court, specifying nine points of error, the fifth of which has been abandoned. The appellant Oberzan principally argues that appellee Canfield was guilty of contributory negligence which barred her recovery. In support of his position on this point appellant contends that contributory negligence barring recovery by Canfield was established by her own testimony and that of her father and mother. In support of his contention, appellant cites the following testimony adduced on cross examination of Miss Canfield: “Q. Miss Canfield, do you recall testifying at the time your deposition was taken in this case, in Erie, Kansas, on May 15, 1964? “A. Yes. “Q. I will ask you if you recall this question and answer: ‘Question: When you looked at the car, as I understand your testimony, you looked at it two times? ‘Answer: Yes.’ Do you recall that? “A. Yes. “Q. ‘Question: Once when you passed the Goedeke House? ‘Answer: Yes. That was when I was at the top of the hill.’ "A. Yes. “Q. ‘Question: That was when you were a quarter of a mile, and on the second time when you were about an eighth of a mile? ‘Answer: Yes.’ Do you recall that question and answer? “A. Yes, I think so. “Q. ‘You didn’t look again then, before you had the impact? ‘Answer: No. Because I was going ahead, and was going on.’ Is that the question and answer? “A. Yes. “Q. ‘Question: Where were you when you made that decision that you had plenty of time to cross the intersection? ‘Answer: Well, both times.’ Do you recall that question and answer? “A. What was that? Did you say which time? “Q. ‘Question: Where were you when you made that decision that you had plenty of time to cross the intersection? ‘Answer: Well both times.’ Do you recall that question and answer? “A. I guess I do. “Q. ‘Was it the last time, then that you made the decision, when you were one-eighth of a mile away? ‘Answer: Yes.’ Do you recall that answer? “A. Yes.” On direct examination she testified: “. . . I was driving between forty and forty-five miles an hour. I probably slowed down a little before reaching the intersection and probably wasn’t going over thirty-five. I saw a car coming from the left or from the east toward the west. We were going down that incline toward the intersection when I first saw this car. I was comparing it where he was and where I was. I saw the car again before we entered the intersection, and he was still just twice as far from the corner as I was. I hadn’t gone into the intersection then. I looked in all directions before approaching this intersection. I supposed that he was driving at a normal rate of speed but I didn’t have any idea he was going as fast as he was. The only thing I remember about the impact was that we were out there in the field where we landed. I did not see the other car at the time of the impact. I heard the noise but I don’t recall being hit. I think I was conscious when we first landed because I knew I was there. I could hear, but I didn’t remember everything. As I approached the intersection, I did not attempt to stop or make any turn, as I thought I had plenty of time to go across. There was no doubt in my mind but what I was there twice as close to that intersection as that other car was. The only thing that I think must have happened was that I misjudged his speed. I didn’t realize he was driving as fast as he was. I assumed that he would slow down, and if I had known he wouldn’t I would never have gone on. I would have stopped. I believed I had the right of way at the intersection. I did not try to beat him to that crossing.” Appellant cites the testimony of appellee’s father, Jay Canfield on cross examination as follows: “Q. Was there anything to keep Hazel from stopping the car back up to the north of the intersection, to keep from entering the intersection, Mr. Canfield? “A. I don’t think so. “Q. And you saw this Pontiac coming from the east, approaching the intersection, Mr. Canfield, and you saw that it was getting closer and closer to the car that you were riding in, didn’t you? “A. Sure. “Q. Then why didn’t you speak to Hazel clear back up here, before she entered the intersection? “A. Because we were in the lead, and I didn’t have the least idea but what we would be on down the road before he got there. “Q. When was it that you realized that you were mistaken in your judgment, Mr. Canfield? “A. About the time the explosion occurred. “Q. Couldn’t you tell, when you were about to enter that intersection from the north, and he was coming from the east, that somebody better be putting the brakes on your car? “A. No. No, I couldn’t. “Q. His car was visible, too, wasn’t it, Mr. Canfield? “A. Sure. Sure it was. Yes. “Q. You were conscious all of the time from the time you left the Goedeke house, until the collision occurred, weren’t you? “A. I didn’t have nothing else to do. “Q. Was it your opinion that your daughter had the right to try to beat this man across that intersection? “A. I wouldn’t say. “Q. You have no answer to that question? “A. No.” He further testified on re-direct examination that his daughter’s car entered the intersection first and that her car was about the center of the intersection at the time of impact. He said that he misjudged the speed of the Oberzan car. It is to be noted that the jury specifically answered the question as to plaintiff’s contributory negligence in the negative. The rules within which the issue under discussion is to be resolved are well established in this jurisdiction, with the qualification that the application thereof depends ultimately upon the facts in each particular case. As pointed out in Drake v. Moore, 184 Kan. 309, 315, 336 P. 2d 807, and recently reiterated in Grisamore Administratrix v. Atchison, T. & S. F. Rly. Co., 195 Kan. 16, 19, 403 P. 2d 93, and Deemer v. Reichart, 195 Kan. 232, 240, 404 P. 2d 174: “'. . . each individual case must be determined on its particular conditions and circumstances.’ ” The application of the rules for determining the question of contributory negligence was fully discussed in the recent case of Deemer v. Reichart, supra, at page 241: “. . . it may be stated very generally the question of contributory negligence is ordinarily one of fact to be determined by the jury, it being for the jury to determine, considering the special circumstances of each particular case, whether the conduct of the party was such as would be expected by a reasonably careful person. In determining whether as a matter of law a plaintiff is guilty of contributory negligence precluding his recovery, all of the testimony favorable to the plaintiff together with all reasonable inferences and deductions to be drawn therefrom must be accepted as true, and if the facts are such that reasonable minds might reach different conclusions thereon, the question must be submitted to the jury and cannot be determined by the court as a matter of law. (See Sponable v. Thomas, 139 Kan. 710, 33 P. 2d 807.) "Contributory negligence is never presumed; it must be established by proof, and when the plaintiff’s evidence does not disclose his contributory negligence as a matter of law, the jury has an absolute right to disbelieve and disregard all evidence tending to establish its existence.” With these rules in mind let us consider the evidence. Plaintiff was driving at a speed of 40 to 45 miles per hour as she passed the Goedeke house at a distance of some 1900 feet from the intersection. At this point she first saw defendant’s automobile. It appeared to be twice as far from the intersection or about a half a mile away. Plaintiff looked again when she had traveled about half the distance to the intersection, the defendant’s car was still twice as far from the intersection. She didn’t see any change of speed in the other car and thought she had plenty of time to get across the intersection. She didn’t know what happened immediately before or after the accident. Plaintiff’s father testified that he saw the Oberzan car as Can-field entered the corner of the intersection and it was one hundred yards east of the intersection. The defendant was doing fifty to fifty-five miles per hour as he approached the intersection. He first saw plaintiff’s car shortly before the impact. It was then about one hundred feet north of the intersection. He applied his brakes but was not able to stop his car. Considering the evidence under the applicable rules, it seems clear that facts convicting plaintiff of contributory negligence were not established by proof beyond the point where reasonable minds might differ. Conceding arguendo that there was evidence from which the jury might have found contributory negligence, where a determination of the issue requires weighing of the evidence, such is the province of the jury. Support for the conclusion reached may be found in the recent cases of Pennsylvania National Mutual Cas. Co. v. Dennis, 195 Kan. 594, 408 P. 2d 575; Deemer v. Reichart, supra, and Gard v. Sherwood Construction Co., 194 Kan. 541, 400 P. 2d 995. A motorist approaching an intersection is not required to look continuously for cross-traffic. The duty of one approaching an intersection was discussed in Sullivan v. Johnston, 164 Kan. 386, 190 P. 2d 417, wherein it was stated at page 390: “Such a holding would require this court to conclude, as a matter of law, that a motorist approaching a city street intersection must continue to look practically at all times to the left in order to determine whether an approaching vehicle will or will not comply with usual standards of driving in cities and with traffic regulations. Such is not the law. The rule is well established that the operator of an automobile may assume that others using the streets will observe the law and he is not guilty of contributory negligence in acting upon such assumption unless and until he has knowledge to the contrary.” We have considered cases cited by appellant and are of the opinion that as applied to the facts here, they are not determinative. Stroud v. McCusker, 175 Kan. 257, 263 P. 2d 260, is distinguishable on the facts because plaintiff failed to look until too late. In Mies v. Twietmeyer, 193 Kan. 97, 392 P. 2d 118, the plaintiff looked hut did not see. The most recent consideration of comparable facts involving a collision at an intersection of country roads is to be found in Reichenberger v. Rosenhagen, 187 Kan. 387, 357 P. 2d 776, wherein it was stated: “On that point it is sufficient to say the court is of the opinion that under the circumstances which attend, the question was one of fact upon which the minds of reasonable men might differ and should have been submitted to a jury under proper instructions . . .” (p.389) The appellant next complains that the trial court failed to properly instruct as to the law of contributory negligence and erred in refusing to submit appellant’s requested instructions dealing with the subject. The court submitted forty instructions to the jury. The appellant requested nine instructions, one was submitted by the court. All of the instructions were included in the record on appeal. The nature of the case which involved a cross petition of defendant McKinney against both Canfield and Oberzan and their answer thereto necessitated lengthy and somewhat complex instructions to cover all of the issues raised by the various pleadings and evidence of the parties. The rule to be applied in considering the questions raised by appellants on these points was stated in Hughes v. Atkinson, 188 Kan. 413, 362 P. 2d 618, at page 419 of the opinion: “In approaching these questions it should be pointed out that in reviewing such claims the rule of general construction is that instructions must be construed together and if taken as a whole they properly state the law they are sufficient. (Giltner v. Stephens, 166 Kan. 172, 200 P. 2d 290; Wing v. Mid-Continent Seeds, 170 Kan. 242, 246, 225 P. 78; Casner v. Common School District No. 7, 175 Kan. 551, 556, 265 P. 2d 1027.)” Appellant complains that instruction 21 is erroneous in that it implies that plaintiff Canfield could recover even if she and Oberzan were both found to be negligent. Instruction 21 was based on Oberzan’s answer in which he alleged that plaintiff’s injury was caused by the negligence of plaintiff. The instruction merely advises the jury that if they should find the negligence of plaintiff was “the sole, proximate cause” of the alleged injury then plaintiff cannot recover. Any such implication which might have been made by the jury was clearly absolved in instruction 13 where the court in further explaining the effect of negligence by plaintiff stated: “. . . for if both parties are negligent neither can recover from the other on account thereof . . .” The rules concerning negligence, contributory negligence, proximate cause and the pertinent rules of the road are applied to the evidence in the lengthy instructions submitted by the court. Though repetitious in some instances, the instructions are complete and correctly state the principles of law involved. We have examined the requested instructions of appellant and find them to be sufficiently covered by the instructions given. The rule that requested instructions are properly refused when the substance is contained in the instructions given is too well established in this jurisdiction to require further discussion. Kettler v. Phillips, 191 Kan. 486, 382 P. 2d 478; Goldman v. Bennett, 189 Kan. 681, 371 P. 2d 108; Williams v. Hendrickson, 189 Kan. 673, 371 P. 2d 188. The appellant next contends that he was deprived of a fair trial because the jury while deliberating was not returned to the court room for further information pursuant to K. S. A. 60-248 (e) which provides: “After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of the law shall be given, or the evidence shall be read or exhibited to them in the presence of, or after notice to, the parties or their counsel.” The evidence was developed on this point by two members of the jury called as witnesses for appellant on the motion for new trial. The foreman of the jury, Don J. Hoffman, testified as narrated in the record: “I had a request of the bailiff, H. L. Lane on an interpretation of one of the instructions that was not quite plain to many of us on a point of law. It was on the instruction so far as the rights of the cross petition were concerned and had to do with the law.” The bailiff after talking to the court returned to the jury room and told Hoffman, “. . . we had the full law in the instructions, and that if we. . . . He said that the judge told him that if we read them over completely and fully that we should find the necessary information in them.” Hoffman further testified he didn’t recall any juror asking to review the testimony of any witness. The testimony of James Sias, a member of the jury, was substantially the same as that of Hoffman. Sias also testified that none of the jurors asked the foreman to ask the judge to be returned for further information or instructions. The record discloses that after the incident complained of the jury was again before the court on two occasions prior to returning their verdict but put no questions to the court at either time. It appears the trial court failed to comply precisely with the mandate of 60-248 (e), supra. However, the testimony of the foreman indicates the jury’s inquiry was directed only at the cross petition of McKinney, the verdict on which is not in this appeal. Even if the incident is construed to amount to a request by the jury to be returned pursuant to the statute we cannot hold the incident, under the facts here, to be of such magnitude as to require a reversal. It must be concluded from the record that if prejudice to appellant’s rights resulted from the incident it was as to cross petitioner McKinney, not as to appellee Canfield. In Root v. Packing Co., 94 Kan. 339, 147 Pac. 69; it was said: “Under the command of the codes, civil and criminal, and the authority of precedent for over half a century, we are prohibited from reversing judgements for mere technical errors or irregularities which do not affirmatively appear to have prejudically affected the substantial rights of the party complaining when it appears upon the whole record that substantial justice has been done.” (p. 345.) The rule has been stated in various ways in many other decisions of this court and is now expressed in the new civil code, K. S. A. 60-261: “No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or ommitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.” The appellant further complains that he was prejudiced by the admission of testimony of plaintiffs father on rebuttal. The testimony concerned the question of whether the Canfield car was airborne following the collision. Plaintiffs evidence in chief was that the car was airborne, defendant Oberzan testified that he didn’t see the Canfield car flying through the air. On rebuttal plaintiff offered testimony of her father to support plaintiff’s position by showing the Canfield car crossed a ditch and fence without leaving marks. In view of Oberzan s testimony, the rebuttal by plaintiff was properly admitted. We have considered other points raised by appellant, they concern matters resolved by what has been said. Further discussion would only be repetitious. In his brief, appellant concedes that the answers to interrogatories are consistent with the general verdict. In view of what has been said no prejudicial error is reflected by the record herein. The judgment is affirmed.	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The opinion of the court was delivered by Fatzer, J.: This was an action by the landowner to cancel an oil and gas lease for violation of the implied covenant to reasonably develop the lease. Trial was by the court which made findings of fact and conclusions of law and rendered judgment in favor of the plaintiff. A decree was entered cancelling the north 40 acres of the defendant’s 80-acre oil and gas lease unless the defendant commenced operation for the drilling of a well upon the 40-acre tract within 60 days from January 25,1965. In lieu of performance, the defendant gave a supersedeas bond to stay the judgment, and perfected this appeal. The plaintiff, Pete G. Vonfeldt, is the owner of the northwest quarter of Sec. 6, Township 15 South, Range 14 West, of the 6th principal meridian, Russell County, Kansas. The original oil and gas lease covering the entire quarter section was for a term of 10 years from August 24, 1929, and as long thereafter as oil and gas was produced. A well was drilled on the west 80 acres within the primary term of the lease and there has been continuous pro duction somewhere on the lease since that time, but not necessarily from the same well or wells. In 1949, the defendant, Charles L. Hanes, purchased the oil and gas lease covering the east 80 acres of the quarter section, hereafter referred to as the Hanes lease or the east 80 acres. At that time, three wells had been drilled on the property and were producing oil. Well No. 1 was drilled in the northeast 10-acre location of the south 40 acres and is still producing; well No. 2 was drilled in the northwest 10-acre location of the south 40 acres, and produced oil for a number of years, but was abandoned in 1960. In reworking the well, the pipe collapsed as the result of a Dakota leak, and workmen were never able to get tools back into the well. Well No. 3 was drilled in the northeast location of the north 40 acres, and produced nineteen barrels of oil a day for a few days and then started falling off. Hanes tried to rework the Arbuckle formation and could get nothing but water; he then plugged the Arbuckle and opened up all Lansing-Kansas City zones which had not previously been opened, but he was never able to make well No. 3 produce. Nothing further was done with the well except occasional testing until 1955 when it was plugged. In 1954 Hanes drilled well No. 4 in the southwest 10-acre location of the south 40 acres. The well was acidized and at first made nine barrels of oil per day but thereafter it dropped down to four barrels per day and has since been producing approximately that amount. Hanes does his own pumping and roustabout work, and at the time of trial, wells Nos. 1 and 4 were the only producing wells on the east 80-acre lease. During the 24 years oil has been produced from the Hanes lease, total production has amounted to approximately 120,000 barrels of oil. As previously indicated, well No. 3 produced very little and the three remaining wells produced most of the oil, making a well-average of almost 40,000 barrels. If a new well reached the average of 40,000 barrels, it would recover in excess of $112,000 at the current price of crude oil and would be economically feasible. At the present time, the two wells on the Hanes lease produce approximately six barrels of oil per day and make approximately fifteen barrels of water per day. All production is from the Lansing-Kansas City formation. Approximately ten years prior to this litigation, the plaintiff purchased the oil and gas lease covering the west 80 acres of the quarter section and he owns and operates that lease. Four wells have been drilled on that lease, but the record is silent as to when they were drilled. The plaintiff testified that since he has owned the lease he has drilled no wells. A well was drilled on the northwest 10-acre location of the north 40 acres, which produced oil for several years, and has since been abandoned. A well was drilled on the northeast 10-acre location and was dry; a well was drilled in the center of the south half of the north 40 acres and was dry; a fourth well was drilled on the southeast 10-acre location of the south 40 acres, and it is still producing oil. The plaintiff testified he would drill a well on the north 40 acres of the Hanes lease but did not specify a particular location. Plaintiffs Exhibit No. 1, prepared by R. P. Nixon, a petroleum geologist and oil producer who resides in Russell, Kansas, showed the locations of all wells drilled on the Vonfeldt quarter section and all wells drilled on surrounding land, and showed the minus elevation of each well. A minus figure indicates distance in feet below sea level. A low minus figure indicates a high structure, and a high minus figure indicates a low structure. The higher structures or lower minuses are the most likely to produce oil. Nixon testified that he was of the opinion a well drilled on the south half of the north 40 acres of the Hanes lease would encounter the Lansing-Kansas City at a favorable datum and he recommended that a well be drilled at the southwest comer of that 40 acres or a half location north, to a depth sufficient to test the Gorham Sand and Arbuckle, and that if a well were drilled it would recover sufficient oil to be a commercial well. The district court found that the south 40 acres of the Hanes lease had been adequately developed and that no part of the south 40 acres should be cancelled. However, it found that the north 40 acres of the Hanes lease had not been fully developed and that the entire 40 acres should be cancelled unless the defendant commenced the drilling of a well thereon within 60 days. The district court’s judgment cancelling the north 40 acres of the lease included the northeast 10-acre location of well No. 3 which had been drilled and plugged, and which fully tested all known producing zones. The defendant first contends the district court erred in ordering cancellation of the north 40 acres of the Hanes lease unless drilling operations were commenced within 60 days. The rules relating to the cancelling of oil and gas leases for violations of implied covenants have been stated in numerous decisions. Recent cases applying those rules are Temple v. Continental Oil Co., 182 Kan. 213, 320 P. 2d 1039, rehearing denied 183 Kan. 471, 328 P. 2d 358; Renner v. Monsanto Chemical Co., 187 Kan. 158, 354 P. 2d 326, and Stamper v. Jones, 188 Kan. 626, 364 P. 2d 972. In the Renner case it was said: “In evolving the doctrine of implied covenants courts have placed great emphasis on individual property rights and construed oil and gas leases ‘to promote development and prevent delay’ upon the theory that the lessor had the right to have his land developed as rapidly as possible (Temple v. Continental Oil Co., 182 Kan. 213, 320 P. 2d 1039, opinion denying rehearing, 183 Kan. 471, 328 P. 2d 358; 2 Summers, Oil and Gas, § 371, p. 484; Merrill, Covenants Implied in Oil and Gas Leases, 2d ed., §§ 1, 6 and 7, pp. 15, 26 and 27). To that end, where the lease itself does not contain express provisions creating duties in die lessee to drill exploratory wells; to drill additional wells after discovery; to operate with diligence and market the product if oil and gas are discovered in paying quantities, and to protect the premises against drainage by wells on adjoining leases, the law imposes such duties upon the lessee under the doctrine of implied covenants (Howerton v. Gas Co., 81 Kan. 553, 106 P. 47, 34 L. R. A. [N. S.] 34; Culbertson v. Cement Co., supra, Annotated Cases 1914A. 610; Alford v. Dennis, 102 Kan. 403, 170 P. 1005; Webb v. Croft, supra; Thiessen v. Weber, supra; Christiansen v. Virginia Drilling Co., supra; Berry v. Wondra, supra; Merrill, op. (At., supra, § 4, p. 23; Summers, op. cit., supra, § 395, p. 526). And, there are many other decisions to the same effect.” It was further said: “Generally speaking, the rule of the implied covenants to drill additional wells after discovery and to protect the premises against drainage by wells on adjoining leases is this: under the former, when oil in paying quantities becomes apparent and the number of wells to be drilled on the lease is not specified, there is an implied obligation that the lessee continue development of the property and put down as many wells as may be reasonably necessary to secure the oil for the common advantage of both the lessor and the lessee (Howerton v. Gas Co., supra; Brown v. Oil Co., 114 Kan. 166, 217 P. 286; Myers v. Shell Petroleum Corp., 153 Kan. 287, 110 P. 2d 810; Fischer v. Magnolia Petroleum Co., 156 Kan. 367, 133 P. 2d 95; Berry v. Wondra, supra; Temple v. Continental Oil Co., supra). . . . Whether a lessee has performed his duties under the implied covenants is a question of fact. In the absence of a controlling stipulation, neither the lessor nor the lessee is the sole arbiter of the extent to which, or the diligence with which, the operations shall proceed. The standard by which both are bound is what an experienced operator iof ordinary prudence would do under the same or similar circumstances, having due regard for the interests of both (Greenwood v. Texas-Interstate P. L. Co., 143 Kan. 686, 56 P. 2d 431; Harris v. Morris Plan Co., supra; Myers v. Shell Petroleum Corp., supra; Fischer v. Magnolia Petroleum Co., supra, Syl. ¶4; Temple v. Continental Oil Co., supra).” (1. c. 167, 168.) Does the record contain substantial evidence to support the district courts finding. We think it does. It is unnecessary to summarize in detail the evidence. As previously indicated plaintiff relied upon the testimony of R. P. Nixon, who prepared a contour map based upon known datums as to the top of the Lansing-Kansas City formation. The defendant relied on the testimony of two geologists, Francis Whisler, who prepared a contour map showing the elevations in the area of the Vonfeldt-Hanes leases, and J. R. Green, who did not prepare any map but merely testified as to the work of other persons. It is not disputed that Nixon and Whisler had different interpretations of the geological information available to them. Both were competent geologists and qualified as expert witnesses. Nixon testified that, in his opinion, the north 40 acres of the Hanes lease had not been adequately developed and that if a well were drilled on either the southwest or center location of the north 40 acres, it would encounter the Lansing-Kansas City eight feet higher than the other wells and that this eight feet of reservoir had not been drained which would make it a better well than the present wells. There was evidence which would afford a reasonably accurate basis for such a conclusion. The defendant testified he had no present plans for drilling, and that he would only consider drilling on the east 80 acres in relation to a secondary recovery operation for both leases. He principally complains that plaintiff had not indicated any desire or inclination to join with him in a secondary recovery operation. He cites no authority that plaintiff is under any obligation or duty to cooperate in such an operation. The closest waterflood project was near the city of Gorham about six miles away. It seems obvious that, in view of the extensive litigation, the district court concluded it was somewhat incongruous for the defendant to insist that the plaintiff and he should go into business together. The plaintiff testified he was a farmer and not a geologist; that he was not familiar with waterflood operations and did not wish to be in business with defendant; that the defendant should drill on the Hanes lease or give it up; that if the north 40 acres were returned to him he would personally drill a well and was financially able to do so. We think the record discloses substantial testimony which supports the district court’s finding that the north 40 acres of the Hanes lease had not been adequately developed. In Stamper v. Jones, supra, it was said: “It is universally recognized that geology is not an exact science. Therefore, in cases of this type courts are concerned with probabilities or reasonable expectations. Thus, when a qualified expert witness expresses an opinion that oil could be produced from the undeveloped portion of a tract in question with reasonable expectations that it would be produced therefrom in paying quantities, it is sufficient evidence upon which to base a finding that the lessee has failed to comply with the obligation imposed by the implied covenant to develop the lease, provided the facts upon which an expert opinion is based afford a reasonably accurate basis for tire conclusion reached, as distinguished from mere guess or conjecture.” (1. c. 632.) While the burden of proof was upon the plaintiff to show by substantial evidence the defendant had not acted with reasonable diligence under the facts and circumstances to fully develop the north 40 acres, the district court, as trier of the facts, weighed the testimony of the experts, and our review of the record convinces us there was substantial evidence to support the court’s finding ordering the lease cancelled for breach of the implied covenant to fully develop. (Renner v. Monsanto Chemical Co., supra; Templer v. Continental Oil Co., supra.) The defendant contends the district court erred in ordering cancellation of the 10-acre tract in the northeast corner of the defendant’s lease on which well No. 3 was located. The plaintiff asked for cancellation of the lease as to the areas upon which no producing wells were located. The district court found that the south 40 acres of the lease had been adequately developed by drilling, and also found that the north 40 acres had not been adequately developed. Well No. 3 was drilled into the Arbuckle formation in 1948. It first produced approximately nineteen barrels of oil per day for a short time and then fell off. Hanes purchased the lease in 1949 and tried to rework the Arbuckle formation but could get nothing but water. That formation was plugged, and he tested the various Lansing-Kansas City zones but with no success. In 1955 he plugged the well. He testified that he might wish to use the hole for disposal well purposes, however, there was no evidence whether it could be made into a salt water disposal well. In the absence of direct testimony to the contrary, we assume that defendant plugged this well in accordance with the rules of the State Corporation Commission, which would mean that it contained much cement; hence it would seem to be dubious that defendant would be able to use this well for disposal purposes. Insofar as this particular 10-acre location is concerned, it is merely a part of the north 40 acres of the Hanes lease from which thus far there has been very little or no commercial production. However, it is possible that all or a portion of this particular tract may be productive. Defendant testified there was some doubt as to the top of the Lansing-Kansas City formation and that it might have been as much as fourteen feet higher than the top of that formation as shown upon the contour map. If cancellation is to be granted to plaintiff it should be on all nonproducing areas on the north 40 acres including the area surrounding well No. 3. Plaintiff desires to drill a well on this acreage and he is entitled to full freedom to choose his first location. We find no error in the district court’s judgment cancelling the lease on this 10-acre location. The burden was upon the defendant to make it affirmatively appear that the district court committed error. We have thoroughly reviewed the record and conclude the defendant has not sustained the burden incumbent upon him. The judgment of the district court is affirmed. Fromme, J., not participating.	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The opinion of the court was delivered by Schroeder, J.: This is an appeal by the defendant in a criminal action which resulted in a conviction and sentence to the state penitentiary. Various alleged trial errors are assigned for review. On the 29th day of March, 1960, an information was filed in the district court of Johnson County, Kansas, charging Willie Williams (defendant-appellant) and another with three counts of burglary in the second degree and grand larceny pursuant to G. S. 1959 Supp. (now K. S. A.) 21-520 and G. S. 1949 (now K. S. A.) 21-524, respectively, on each count. Under Count I of the information the defendants were charged with second degree burglary and grand larceny at Kobler’s Drug Store in DeSoto, Kansas, on or about the 4th day of March, 1960. The second count charged the defendants with second degree burglary and grand larceny at the Lewis Drug Store in Gardner, Kansas, on or about the 9th day of March, 1960. The third count charged the defendants with second degree burglary and grand larceny at the Forbes Grocery Store at Gardner, Kansas, on or about the 9th day of March, 1960. On the 29th day of March, 1960, counsel were appointed by the court for each of the defendants, Mr. Lawrence T. Loftus, a member of the Johnson County Bar, being appointed as counsel for the defendant, Willie Williams. On the 4th day of April, 1960, the defendant Williams appeared with his attorney and came before the court for arraignment. He entered a plea of not guilty to each of the three counts, and requested a separate trial which the court granted. On the 14th day of April, 1960, the defendant Williams was tried before a jury and found guilty on the second and third counts. He was acquitted of the charges under Count I. Thereupon the court granted him five days in which to file a motion for a new trial. Thereafter, on the 2nd day of May, 1960, the motion for a new trial was heard and overruled by the trial court. Pursuant to G. S. 1949 (now K. S. A.) 21-523 and 21-524, covering the penalty for the offenses, and after hearing evidence on the applicability of G. S. 1949 (now K. S. A.) 21-107a, the trial court found that notice had properly been given, and sentenced the defendant Williams under Count II of the information to a maximum term of twenty years for second degree burglary, and a maximum of ten years for grand larceny, said sentences to run concurrently. It also sentenced the defendant under Count III of the information to a maximum term of twenty years for second degree burglary and a maximum term of ten years for grand larcency, such sentences under Count III to run concurrently. The court further ordered that the sentences under Count III of the information run consecutively with the sentences under Count II of the information. Counsel for the defendant, Mr. Loftus, was then permitted to withdraw as attorney. Thereafter the defendant attempted to prosecute an appeal to the Supreme Court of Kansas pro se, but due to his lack of legal training and the further fact that a complete record was not furnished to him, his appeal was subsequently dismissed as is more fully set forth in Williams v. Crouse, 193 Kan. 526, 394 P. 2d 96 (1964), which was an appeal by the defendant from an order of the district court of Leavenworth County, Kansas, denying his petition for a writ of habeas corpus. Thereafter, in the month of April, 1965, the district court of Johnson County, Kansas, appointed John T. Flannagan, a practicing attorney in Olathe, Kansas, as counsel for the defendant, for the purpose of prosecuting an appeal to the Supreme Court. Pursuant thereto an application was made to reinstate the defendant’s appeal which had previously been dismissed, and on the 10th day of May, 1965, the Supreme Court ordered the appeal reinstated and directed the clerk of the district court of Johnson County, Kansas, to return forthwith the mandate of June 12, 1961, dismissing the defendant’s pro se appeal. (Douglas v. California, 372 U. S. 353, 9 L. Ed. 2d 811, 83 S. Ct. 814.) Thereafter, on the 18th day of June, 1965, another appeal was filed by counsel for the defendant, and on the 25th day of June, 1965, counsel filed an amended notice of appeal with the clerk of the district court of Johnson County, Kansas. These appeals have been consolidated, and upon application to this court the defendant was granted leave to proceed in forma pauperis. Hie evidence disclosed that in the early morning hours of March 9, 1960, Officer Fred Allenbrand of the Johnson County Sheriff’s Office was on duty patrolling the western part of Johnson County, including the areas of Spring Hill and Gardner, Kansas. When he entered the east edge of the city of Gardner for the purpose of checking the businesses located there, he noticed an automobile, which he described as a 1949 or 1950 green Chrysler, proceeding eastward out of the city of Gardner, carrying two occupants in the front seat. Officer Allenbrand continued with his check in Gardner and found evidence of an apparent break in at the Skelly Service Station. He thereupon attempted to overtake the Chrysler vehicle which he had previously seen but was unable to locate it. He therefore contacted the Johnson County Sheriff Dispatcher by radio and gave a description of the Chrysler automobile and suggested that it be stopped for investigation. Later that same morning Officer Allenbrand went to Olathe, Kansas, where he identified the 1949 Chrysler which he had seen previously that day in Gardner. At approximately 4:00 o’clock a. m. on March 9, 1960, Officer Del Wigger of the Olathe City Police Department was on duty at the southeast comer of the square in Olathe, and testified that he met Vick Farrell, who was a merchant policeman for the city of Olathe. Wigger and Farrell received a call from the sheriff’s office by radio informing them there had been a break in at a service station in Gardner, and that the occupants of a 1949 or 1950 Chrysler automobile which was headed east on Highway No. 56 toward Olathe were suspected of the break in. These officers proceeded to the west edge of the city of Olathe where they observed a car fitting the description of the 1949 Chrysler. After entering the city of Olathe the 1949 Chrysler, containing two occupants, proceeded north on Highway No. 7, and at a point approximately three miles north of Olathe the two occupants were placed under arrest. The driver of the Chrysler automobile was Freeman N. Morris, Jr., and the other occupant, who was seated on the passenger’s side of the front seat, was the defendant, Willie Williams. Officer Wigger testified that he approached the Chrysler automobile and asked the persons therein to step out with their hands up. The defendant Williams, according to the testimony of Officer Wigger, was slow in getting out of the passenger’s side of the automobile, and the officer further stated Williams appeared to have in his possession a pistol which he disposed of by throwing it under the car. After the subjects were in custody, the automobile was searched and various items of personal property were found in the trunk. Officer Wigger requested Officer Farrell to look for the gun which was seen in the defendant Williams’ possession. Farrell made a brief search which produced a bag containing money but no weapon was found. Another officer, David Greenlee, went to the scene of the arrest of the defendant three miles north of Olathe on Highway No. 7 in the early morning hours of March 9, 1960, and testified that at the time he arrived Officer Wigger and Officer Farrell and John Persell were present as well as the defendant Williams and the driver of the Chrysler automobile, Freeman N. Morris, Jr. Officer Greenlee took into his possession the personal property found in the automobile and made an inventory of it. He also made a search of the area around the Chrysler automobile and found a .38 caliber Smith & Wesson gun which he identified for admission in evidence. Officer Greenlee further testified that it had been snowing that day and there was an inch or two of snow on the highway. After cross examination of Officer Wigger, the court admitted the pistol into evidence over objection of counsel for the defendant on the ground there had been no proper foundation laid for the introduction of such evidence. The introduction of this pistol into evidence is the appellant’s first specification of error. It is the appellant’s contention that he was not charged with robbery, assault with a deadly weapon, or any crime of violence wherein a weapon such as the gun introduced would be instrumental in the commission of the crime. It is therefore argued the probative value of the gun as tending to prove the commission of the crime charged was negligible and far out-weighed by the risk of unfair and harmful surprise to the defendant to say nothing of the undue prejudice generated by the introduction of the weapon into evidence. The appellant further argues there was no proper foundation for the admission of the gun into evidence because the particular gun had not been connected with the crimes charged in the information. While it is conceded that Officer Wigger testified the appellant had a pistol which he attempted to dispose of, by throwing it under the car at the time of the arrest, it is called to our attention that Officer Wigger and Officer Farrell, who was assisting him, did not find the weapon when the search was made. The pistol was admitted into evidence upon testimony of Officer Greenlee who testified that he found the pistol upon making a search of the area where tire appellant and Morris were arrested. The circumstances under which the pistol was found, consider ing the fact there was snow on the ground, are matters which go to the weight of the evidence and not to its admissibility. It is well established that attempts by the accused to conceal or destroy evidence are incriminating circumstances that may be presented to the jury. (State v. Wilson, 108 Kan. 433, 195 Pac. 618.) It has also been held that the demeanor of one charged with crime, at or near the time of its commission, or of his arrest for the same, may always be shown. (State v. Baldwin, 36 Kan. 1, 12 Pac. 318.) Here the pistol was the fruit of a search made of the area where a lawful arrest had been effected, and was used to substantiate the evidence presented as to the conduct of the appellant at the time of his arrest. Both the pistol and the evidence of the appellant’s conduct at the scene of the arrest are properly a part of the state’s circumstantial evidence against the appellant. Both are relevant and have a bearing on the element of criminal intent or guilty knowledge. Considering the character of the case and the conduct of the appellant, the trial court did not abuse the exercise of its power of discretion by admitting the pistol into evidence. As a part of the state’s case it offered for introduction into evidence a journal entry disclosing the appellant’s conviction of attempted burglary in the district court of Shawnee County, Kansas, on the 29th day of October, 1958, in the case of State v. Willie Williams, Case No. 21, 461. No objection was made by counsel for the appellant to the introduction of this journal entry into evidence. After the state rested, the appellant took the stand and testified, among other things, that he had previously been convicted of the crime of attempted burglary in October, 1958. He then sought to testify for the purpose of disclosing the circumstances surrounding his prior conviction, but the trial court on its own motion and without objection by the state refused to permit the appellant to offer any explanation of the previous crime or conviction. The appellant’s defense, according to his testimony, was that he was a passenger in the Chrysler automobile driven by Morris, but that during the times of the alleged crimes he was asleep on the front seat of the automobile. He denied participating in any burglary or larceny and denied having any knowledge that the items of personal property, allegedly taken from the business establishments set out in the information, were in the rear compartment of the automobile in which he was a passenger. (The owners of the business establishments in Counts II and III identified the property taken from the trunk of the Chrysler automobile as the property which had been stolen from their respective business establishments. ) Among the instructions given by the trial court was No. 12 as follows: “Evidence has been introduced tending to show that shortly after the time it is claimed that property of Oscar Kobler, Everett Lewis and Gordon Forbes was stolen said property was found in the possession of the defendant Willie Williams. You are instructed that possession of stolen property shortly after it is stolen is prima facie evidence that the possessor is the thief, and it throws upon such possessor the burden of explaining such possession. If such possession is unexplained, or if the explanation is not satisfactory to the jury, it is of itself sufficient to warrant a conviction of grand larceny. However, in order for this instruction to be applicable to this case, you must find beyond a reasonable doubt that the defendant had possession of property which had been stolen from said persons above named shortly after it was stolen.” By instruction No. 13 the jury was also informed that the appellant’s commission of an offense similar to that charged in this case could be considered by the jury only on the question of the appellant’s guilty knowledge and as showing the appellant’s inclinations, tendencies, attitudes, plan, motive and system of operation and intent in his actions. In view of these instructions the appellant contends it was error for the trial court to intervene on its own motion and deny him the right to explain the circumstances under which the attempted burglary in Shawnee County was committed in October, 1958. Relying upon State v. Winchester, 166 Kan. 512, 203 P. 2d 229, the appellant argues that this action on the part of the trial court was prejudicial to his substantial rights. He contends that inasmuch as the jury was allowed to consider his prior conviction as relevant to his inclinations, tendencies, attitudes, plans, motive and system of operation, as well as his intent in the matter, the appellant was entitled to offer evidence of explanation and extenuation on the prior crime and conviction. To support his charge the appellant relies on United States v. Boyer, 80 U. S. App. D. C. 202, 150 F. 2d 595, 166 A. L. R. 209 (1945) for the proposition that a witness whose credibility has been impeached on cross examination by inquiry into his previous convictions on criminal charges should be permitted, in the discretion of the trial judge, to make reasonably brief protestations in his behalf in extenuation of his guilt or in the assertion of his innocence of the previous charge. An annotation (166 A. L. R. 211) entitled “Right of witness whose credibility has been impeached by evidence of previous conviction, charge of crime, or arrest, to assert innocence or to explain or show circumstances” discloses two lines of authority on the point. But this is not the precise point confronting us on appeal. The basis for the rule which denies the appellant the right to explain the prior convictions rests upon the principle that the conviction is a solemn adjudication of guilt and not subject to contradiction or explanation in any collateral proceeding. Where a defendant in a criminal action is permitted to explain the circumstances of a prior conviction it, as a practical matter, tends to lead to a retrial of a case in which the conviction was had — if the defendant is permitted to explain the circumstances, the prosecution should have the right to counter the defendant’s explanation. We hold it is improper to delve into the circumstances of a prior conviction where the journal entry of such prior conviction is used for the purpose of showing inclination, tendency, attitude, plan, motive and intent. The appellant had his day in court, and the matter was judicially determined in the prior proceeding. In State v. Winchester, supra, the trial judge undertook on his own motion the cross examination of the accused in the trial of a criminal action in an attempt to fully develop the facts, but in so doing he gave the jury the impression that he was biased against the accused and that he did not believe his testimony. On appeal to the Supreme Court the conviction was reversed on the ground the accused did not have a fair trial. In the instant case the trial court’s interruption of the examination of the appellant, on its own motion, was consistent with its duty to limit the testimony to the relevant issues in the case. In the case of Jackson v. Oil Co., 97 Kan. 674, 156 Pac. 756, the court held: “A trial court does not commit error in excluding incompetent and irrelevant evidence although no objection is made by the party against whom the evidence is attempted to be introduced.” (Syl. ¶ 3.) In the opinion the court said: “. . . It was the court’s duty to control the introduction of evidence and to confine counsel to the introduction of evidence that was material and relevant to the issues on trial, although counsel for both sides may have consented to the introduction of the evidence excluded.” (p. 676.) After the closing argument of counsel and the written instructions were given to the jury, the jury was put in charge of the bailiff and retired for its deliberations. Thereafter the jury addressed the following written question to the court: “Does it make any difference in this case that the car containing the stolen goods was owned by Morris rather than by this defendant?” The court, in response to this question, further instructed the jury by a written note as follows: “Ownership of the car alone does not determine the question of possesion of the stolen goods. It is a question of fact for your determination from all of the evidence whether the defendant or the defendant and Morris had possession of the stolen goods.” The appellant contends where the state’s case is based upon the presumption of guilt arising against a defendant found to be in possession of recently stolen goods, it is error for the trial court to respond as it did to the foregoing question of the jury, without providing in such instruction for the alternative which would permit the jury to determine whether the defendant Morris alone had possession of the goods. On this point it is argued the evidence introduced by the state in this case was entirely circumstantial, therefore making it incumbent upon the state to connect the appellant with the alleged crimes by a continuous chain of circumstances which were absolutely inconsistent with any other rational conclusion than the guilt of the appellant. The appellant contends the court’s answer to the jury assumed as a matter of fact that the appellant was in the possession of the stolen property, or in the alternative, that both the appellant and Morris were in the possession of the stolen property — that the judge’s instruction foreclosed the possibility that Morris alone may have been the one in possession of the stolen property. We think this contention to be without merit. The jury had previously been fully instructed in writing, and among those instructions was the usual instruction that one accused of crime is presumed to be innocent of every material fact necessary to constitute the crime until his guilt is proved to the satisfaction of the jury by the evidence beyond a reasonable doubt. It cannot be successfully argued that the corut’s answer amounted to commenting on the weight of the evidence merely because the court limited its answer to possession by the appellant or the appellant and Morris. The question for the jury was whether the appellant had possession of the goods, and if the appellant and Morris had possession of the goods it was equivalent to possession by the appellant. The court is not obligated to inform the jury they must find who had possession of the goods, if the appellant did not. The written instructions previously given cannot be ignored. On this point the evidence was to be viewed by the jury in the light of the written instructions previously given to it. Among them the burden of proof was cast upon the state to prove beyond a reasonable doubt that the appellant had possession of the goods. Before the juiy arrived at a verdict, it submitted another written note to the judge as follows: “Must we have a ■unanimous vote even to show not guilty?” The trial judge responded with a written note as follows: “The vote must be unanimous for either guilty or not guilty. If the vote is not unanimous as to any of the offenses charged, it results in a hung jury.” The appellant contends this action of the court in so instructing the jury is prejudicial because it was coercive and tended to unreasonably sway the jury in its consideration of the evidence. (Citing, Coleman v. Patti Construction Co., 182 Kan. 53, 318 P. 2d 1028.) We shall not delve into the Coleinan case because a study will clearly disclose its factual situation to be entirely different. The remarks by the court in the Coleman case gave the jury no alternative but to return a verdict or risk the wrath of the court. That is not the situation with which we are here confronted. The instruction here was not coercive, but merely informative. The record does not reflect that a timely objection was made to this instruction. Clearly, if die jury could not arrive at a unanimous decision with respect to any one of the three counts before it, it could not find the appellant guilty of such count. It did acquit the appellant of Count I and found him guilty of Counts II and III. Under the circumstances it cannot be said the appellant was prejudiced in any way by this instruction. Accordingly, we hold the appellant has faffed to show he was prejudiced by any of the rulings made by the trial court which have been specified as error. The judgment of the lower court is affirmed. Fromme, J., not participating.	[ -80, -22, -67, 30, 10, -32, 42, -100, 2, -95, -74, 83, -23, -121, 5, 121, 19, 13, 84, 121, -29, -73, 55, -95, -122, -5, -49, -43, 49, 91, -82, -41, 76, -80, -118, 21, 6, -120, 69, 92, -118, 1, -87, -48, 81, 8, 40, 40, 62, 14, -79, 62, -29, 42, 54, -38, 72, 45, -53, 62, 88, -103, -30, 21, 125, 20, -93, -125, -108, 5, 88, 63, -100, 49, 0, -24, 115, -122, -122, 116, 79, -103, 12, 38, 98, 33, -99, -17, -88, -119, 14, 49, -99, -89, -104, 64, 97, 44, -74, -99, 109, 86, 3, -4, -31, 84, 25, 108, -128, -49, -80, -109, -113, 113, -114, 59, -5, 5, 49, 113, -57, -94, 92, 86, 113, 27, -50, -43 ]

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