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The opinion of the court was delivered by Valentine, J.: On February 5, 1883, the plaintiffs in error brought an action in the district court of Montgomery county against the defendants in error, to recover the sum of $142.73, which was alleged to be due on an account for goods, wares and merchandise alleged to have been furnished by the plaintiffs to the defendants. At the same time an order of attachment was issued, and was levied upon a stock of goods belonging to the defendants. On March 5, 1883, the defendants filed a motion to discharge the attachment as to the whole of the property attached, and on April 2, 1883, this motion was heard and sustained by the court, and the attachment discharged. The plaintiffs bring the case to this court for review, and in this court they claim that the attachment should be sustained, upon the following grounds; (1) That the evidence introduced on the hearing shows that the debt, or account, upon which the action was brought was fraudulently contracted by the defendants; (2) that the evidence introduced on the hearing shows that the defendants disposed of a portion of their property with the intention of hindering, delaying and defrauding their creditors; (3) that the evidence introduced on the hearing shows that the defendants were about to assign or dispose of their property, with the intention of hindering, delaying and defrauding their creditors. It will be seen that the questions involved in this case are principally, if not entirely, questions of fact, founded entirely upon the evidence introduced on the hearing of the motion to discharge the attachment. Now this evidence is contradictory and unsatisfactory, and it is very difficult to determine from such evidence what the real facts of the case are. It is undoubtedly true, that some evidence was introduced tending to show fraud on the part of the defendants; some evidence tending to show that the debt or account was fraudulently contracted by the defendants; some evidence tending to show that the defendants had disposed of a portion of their property with the intention of hindering, delaying and defrauding' their creditors; and some evidence tending to show that the defendants were about to assign or dispose of their property with the intention of hindering, delaying and defrauding their creditors; but all this evidence was contradicted by other evidence, and a portion of the same was contradicted by an unquestionable preponderance of the evidence. We are inclined to think that the decision of the court below, or rather of the judge thereof at chambers, is correct upon the evidence. We think it is wholly unnecessary to discuss the evidence, or to discuss the facts which such evidence may seem to prove. We can perceive no good or useful purpose which such discussion would be likely to subserve. There are three questions of law, however, which the plaintiffs seem to consider as in the case, which we will now proceed to decide. The questions and decisions are as follows: (1.) Where A, who is in failing circumstances, makes various statements to different persons with respect to his financial ability, representing it as being better than it is in fact, but does not make such statements to B, or for the purpose of defrauding B, or for the purpose of defrauding any person, and at no time has any intention of defrauding B or any other person; but afterward B gives credit to A, evidence of these statements does not necessarily prove that A fraudulently contracted the debt which he became liable to pay to B. (2.) Where a partner sells to a third person his partnership interest, and the purchaser of the partnership interest does not agree to become liable or responsible for any portion of the previous partnership debts, these facts of themselves do not prove that either of these persons assigned or disposed of any of his property for the purpose of hindering, delaying or defrauding his creditors. (3.) In the absence of evidence to the contrary, honesty and fair dealing in all transactions are always presumed; and if any person claims that there was fraud in any transaction, it devolves upon such person to prove the fraud, and it does not devolve upon the party charged with committing the fraud to prove that the transaction was honest and bona fide. The order of the judge of the court below discharging the attachment will be affirmed. All the Justices concurring.	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The opinion of the court was delivered by ■ Brewer, J.: Defendant in error (plaintiff below) commenced his action in the district court of Sumner county to recover of the city of Wellington damages for personal injuries received in consequence of being thrown from a buggy on the streets of said city. The undisputed facts are, that while driving in a buggy in the early part of the evening of July 3, 1881, the wheels of the buggy struck against a post on the corner of G and Third streets, upsetting the buggy, and throwing the plaintiff violently upon the ground. The case was tried before a jury, which returned a verdict in favor of plaintiff in the sum of $325. It appears that about one year before the accident the owner of the adjoining lots set out some trees in front of his premises, and put this post in the street about twelve feet from the corner of his lots for the purpose of preventing wagons from striking against the trees. The post was about two feet in height above ground, slanting at an angle of about 45 degrees from the traveled track toward the lots. It appears that grass and weeds had grown up about the post, though to what extent they concealed it is not perfectly clear from the testimony. Both streets cornering here were perfectly level, and there was a traveled track passing from one street to the other, and near to this post. Exactly how near it came to the bottom of the post is a matter of dispute on the testimony. The errors complained of are in the instructions. Counsel for the city criticise the language of several instructions, in that they affirm the liability of the city unlesg the injury was caused, or occasioned, or produced by the fault or negligence of the plaintiff, claiming that this implies that the fault or negligence of the plaintiff must be the sole and not a mere contributing cause of the injury. We shall not stop to consider how far this criticism is just, for in the principal instructions the rule is stated with unquestionable accuracy, and we cannot think that the jury were misled in the language used in those other instructions. We think, however, that the court erred in one instruction, and erred to the prejudice of the substantial rights of the city. That instruction reads as follows: “I say to you as a matter of law, that anything placed so near to the traveled part of a public road as to be liable to be run upon or against without diverting wholly from the traveled way, and when run upon or over is liable to produce delay, accident or inconvenience, such obstacle so placed is such an obstruction as renders a city liable for injuries sustained by reason thereof, if not produced by want of ordinary care and prudence of the person injured.” Now this is not correct as a general proposition, is not correct as applied to the facts of the present case, and improperly withdraws from the jury one of the questions of fact which it was its province to determine. As beyond any question the post referred to was within a foot or two of the traveled track, if not immediately on its border, it was liable to be run upon or against without diverting wholly from the traveled way, and was of such height that a buggy running over it would, as in this case, upset; and thus delay, accident or inconvenience be caused. Therefore, within the terms of the instruction, it was such an obstruction as rendered the city, as matter of law, liable for the injuries it occasioned. In other words, the court affirmed as matter of law negligence on the part of the city, leaving for the determination of the jury really only the question of contributory negligence. Now the existence of a post or other object large enough to upset a buggy or wagon running over it within a carriage-width of a traveled track, is not necessarily, and as a matter of law, such an obstruction as renders the city liable for injuries occasioned thereby. It may or may not be such an obstruction, depending upon a variety of circumstances; and ordinarily, whether it is or not, is a question of fact to be determined by the jury. In other words, the city is not bound, as matter of law, to keep not only the traveled track in good and safe condition, but also to keep a space of a carriage-width on each side of such traveled track free from posts, stones, or other objects large enough to upset a buggy or wagon running over them. And yet that is substantially what the court instructed the jury. It is unquestionably the duty of the city to keep its streets in a reasonably safe condition for travel in the ordinary modes. In 2d Dillon on Municipal Corporations, 3d ed., §1019, the author says: “It is sufficient, we think, if the streets (which include sidewalks and bridges thereon) are in a reasonably safe condition for travel in the ordinary modes, by night as well as by day; and whether they are so or not is a practical question, to be determined in each case by its particular circumstances.” In the discharge of this duty, in places it must keep the whole width of the street in a safe condition for travel. (Bryant v. Biddlefield, 39 Me. 193.) In other places it is sufficient if it keep a traveled track in good repair. (Hull v. Richmond, 2 Woodb. & M. 337; Ireland v. Plank Road Co., 13 N. Y. 526; Bassett v. St. Joseph, 53 Mo. 290; Brown v. Glasgow, 57 id. 157.) Whether in any given case the public needs are such as to require the whole width of the street to be kept in safe condition, is generally a question of fact for the jury. In 2 Dillon, supra, §1016, the rule is thus laid down: “Nor is a municipal corporation bound to keep all of its streets and all parts of the streets in good repair; but when it opens a street and invites public travel, it must be made reasonably safe for such use; but this does not necessarily imply as a matter of law that the whole width of the street must be in good condition. Whether the street was wide enough to be safe; whether it was in a reasonably safe condition for public use by travelers who use ordinary care to avoid injury, are almost always questions for the jury.” (See also City of Wyandotte v. Gibson, 25 Kas. 236; Osage City v. Brown, 27 id. 74; Maultby v. City of Leavenworth, 28 id. 745.) It is a familiar fact that in all our cities lot-owners are accustomed to plant shade trees in front of their lots. Many streets are thus rendered beautiful by the long rows on either side. Especially is this true in the residence portion of the city. Sometimes these trees are in the sidewalk, but more often just outside the sidewalk, in the street proper. Often, especially when the trees are young, they are inclosed with boxes or railing, to prevent their injury by straying cattle or passing teams. Can it be that permitting these things is per se negligence on the part of the city; that every time a buggy runs against one of these trees or its protection, the city is liable for all injuries, unless the driver was also negligent? Cannot a party put a hitehing-post in front of his residence without exposing the city to a charge of negligence, unless he has placed it more than a carriage-width from the traveled track? These questions carry their own answer. The circumstances of each case must determine whether tree, or post,, or any other thing that a buggy may run upon or against, is by reason of its proximity to the traveled track an obstruction, .whose continuance brands the city with negligence. The question is not whether a city .may grant permission to-one to occupy the street with trees, and railing, and posts, but whether the city must keep its streets and all its streets free from all such objects, or be held always, as matter of law, guilty of negligence and liable for all injuries resulting therefrom. We think the district court erred in practically holding that as matter of law the city was, under the circumstances, guilty of negligence in permitting the post to remain where-it was, and in not leaving the question of negligence in this respect more fully and entirely to the judgment of the jury. We do not mean by this decision to acquit the city of responsibility, or to decide that there was no negligence on its-part. We think a very fair question is presented upon which different minds would easily come to different conclusions, and that it is the province of a jury and not that of á court to determine it. The judgment will be reversed, and the case remanded for a new trial. All the Justices concurring.	[ -16, 126, -16, -114, 26, 96, 40, -38, 89, -95, -91, 87, -85, -117, 13, 33, -21, 93, -44, 107, -12, -73, 23, -93, -110, -13, -21, -51, -73, 76, 116, -42, 76, 48, -118, -99, -90, 72, 69, -44, -50, -122, -119, -4, -39, 40, 52, 127, 4, 79, 113, -114, -13, 42, 28, -61, -87, 44, 75, 57, -45, -79, -116, -107, 125, 2, -111, 38, -100, 1, 88, 40, -112, 49, 8, -8, 115, -90, -106, -44, 101, -103, 12, -26, 103, 33, 61, -17, -8, -120, 14, -6, 7, -89, 34, 25, 43, 1, -66, -107, 55, 80, 7, 126, -2, 29, 89, 108, 7, -53, -112, -111, -49, 32, -110, 73, -21, -121, 51, 101, -51, -14, 93, 68, 114, -101, -97, -66 ]
The opinion of the court was delivered by Horton, C. J.: The opinion filed in this case (30 Kas. 343} stated, inter alia, that the objections taken to the tax proceedings prior to the execution of the tax deed were cured by the running of the statute of limitations, (subdivision 3,. §16 of the Code;) and therefore no notice was taken of the-alleged irregularities or defects in the tax proceedings. This-conclusion was based upon the evidence contained in the record, which failed to show that the plaintiffs or their immediate grantor were absent from the state after July 28, 1874,. for any specified time, and also upon the following findings of the court: “ 7. That it was proven that Halderman resided in Topeka, Kansas, Until August, 1873, and then left the city of Topeka, declaring he intended to go to West Virginia, since which time his actual presence in or absence from the state was unknown to any witness who testified, except that after October, 1874, when the law for the semi-annual payment of taxes went in force, but after he had sold his land, letters were received from him twice a year from the state of West Virginia. “ 8. That the only testimony of the presence in or absence from the state, of Brown, was the recital in Brown’s deed that he,.resided in Martinsburg, West Virginia. “ 9. That the only testimony as to the presence in or absence from the state, of plaintiffs, was their depositions, in which they, state-that at the time of the taking they resided in West Virginia.” Our attention, however, has been specially called, in this motion, to the following additional findings of fact of the trial court: “17. J. S. Halderman left the state in August or September, 1873, and went to West Virginia to reside, where he has ever sinceresided and had his domicile, and he has never been in Kansas since, being absent from Kansas ever since. “ 18. Brown, the grantor of the plaintiffs, and the plain-1 tiffs, have never at any time lived in Kansas, but have always been absent therefrom.” These findings are not in harmony with the prior findings; and the finding that Brown, the grantor of plaintiffs, and the plaintiffs, have never at any time lived in Kansas, and have always been absent therefrom, is not sustained by the evidence. As the prior findings, however, are mere recitations of testimony rather than actual findings of fact, the latter findings must also be considered. If the latter findings are to prevail, the trial court found as a matter of fact that Halderman, Brown and the plaintiffs were out of the state after August or September, 1873; and although this is not supported by the evidence, we must conclude that the trial court decided that the absence from the state of these parties in no way affected the statute of limitations. Section 16, article 3 of the civil code, provides: “Actions for the recovery of real property, or for the determination of any adverse right or interest therein, can only be brought within the periods hereinafter prescribed, after the cause of action shall have accrued, and at no time thereafter: . . . Third. An action for the recovery of real property sold for taxes, within two years after the date of the recording of the tax deed.” Section 21 of the code reads: “ If when a cause of action accrues against a person, he be out of the state, . . . the period limited for the commencement of the action shall not begin to run until he comes into the state; . . . and if after the cause of action accrues he depart from the state, . . . the time of his absence . . . shall not be computed as any part of the period within which the action must be brought.” If the exception set forth in- the last section is applicable in this ease, then the presence in or absence from the state, of the plaintiffs and their grantors, is a material matter for consideration. This is an action for the recovery of real property. The plaintiffs, if entitled to recover at all, must recover upon the strength of their own title. That title depends upon the validity of the tax deed executed to Higgins on May 11, 1872. When the tax deed was set up as the foundation of title, the defendant had the right to challenge the tax proceedings upon which it was based for material irregularities or defects, if they were not cured by the running of the statute. The exception to the statute of limitations, stated in the code, must apply to all cases brought thereunder, and therefore to this case. The arrangement of the sections of the statute forbids any other construction. The various sections prescribing periods of limitation in actions real and personal are grouped together; and then follow exceptions to those general causes of limitation. “ To hold that these exceptions do not apply to all the clauses of limitation to which they are in their nature applicable, is to ingraft upon the statute something not placed there by the legislature.” (Morrel v. Ingle, 23 Kas. 37.) If plaintiffs could call to the protection of their tax deed the statute of limitation, the defendant had the right to insist that the facts in the case, under § 21 of the code, showed that the statute of limitation had not run. The defendant was in possession of the real estate in controversy, and therefore, as against the plaintiffs, was the owner thereof and entitled to the possession of the same. Occupying such relation, the statute of limitation did not bar him from showing that the tax deed had not sufficient support, if the plaintiffs and their grantors were absent from the state sufficient time to prevent the statute of limitation from having operation to protect the tax deed. The judgment heretofore rendered in this court will be set aside, and the judgment of the trial court reversed, because the findings of the trial court are inconsistent and some of them unsupported by the evidence; and also because the trial court committed error in its conclusion of law, if based upon the finding that Halderman, Brown and the plaintiff were absent from the state after August or September, 1873. Upon another hearing more satisfactory evidence will doubtless be presented upon the question of presence in or absence from the state, of the plaintiffs and their grantors. The tax deed of May 11, 1872, will not be cured of the fatal defects in the tax proceedings, if the grantee therein named and the subsequent grantees have been out of the state, so as to prevent the operation of the statute of limitation. The judgment of the district court will be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed. All the Justices concurring.	[ -16, -22, -11, 30, 58, -32, 42, 24, 96, -93, 37, 83, -23, 82, 0, 121, 98, 61, 81, 106, -60, -77, 3, -53, -30, -77, -39, -44, -79, -56, -92, -33, 78, 36, 10, -75, 102, 74, 75, 92, -50, -116, -88, 68, 80, 96, 52, 77, 114, 75, 113, -6, -13, 46, 25, -45, 104, 45, 75, 53, 16, -15, -85, 6, 79, 6, 51, 6, -102, 7, -24, 42, -112, 59, 96, -20, 51, -90, -110, -4, 27, -119, 40, 102, 98, 33, -27, -19, -8, -104, 47, 112, 29, -90, -14, 88, 67, 40, -66, -99, 124, 112, 3, 120, -26, 12, 25, 124, 13, -113, -10, -79, -81, 116, -118, 19, -9, -95, -80, 113, -57, -58, 93, 103, 48, -71, -34, -4 ]
The opinion of the court was delivered by Harman, C.: This is a proceeding for postconviction relief under K. S. A. 60-1507. On September 25, 1967, appellant Von J. Greathouse pleaded guilty to two counts of first degree robbery. Statutory sentences to be served consecutively were imposed on October 5, 1967. No appeal was taken from this judgment. On April 13, 1970, and again on April 17, 1970, appellant filed, pro se, a motion attacking these sentences and convictions. May 28, 1970, present counsel, appointed by the trial court, filed an amended motion in appellant’s behalf. Thereafter the court held a pretrial conference at the conclusion of which it denied appellant’s motion without evidentiary hearing, finding in effect that an examination of the files, records and transcript of the former proceeding conclusively showed appellant was entitled to no relief. This appeal ensued. Essentially appellant’s grounds for relief in his motion were that his pleas of guilty were not voluntarily entered, and he now contends the court erred in denying relief without granting an eviden tiary hearing. Reasons assigned for the involuntary nature of his plea of guilty, and now urged in support of reversal, include misapprehension as to his legal position by reason of lack of an arrest warrant upon one of the charges, an alleged illegal lineup and fear of a capital charge in another state. He also alleged lack of proper food while held in the county jail led to poor health and an unintelligent plea of guilty. Records in the case before the 1507 court indicated the following: Appellant was afforded a preliminary hearing upon both counts of robbery at which he was represented by three retained attorneys. He was already in police custody under the first count at the time the second count of robbery was charged. After he was bound over for trial to the district court his retained counsel withdrew and he was subsequently represented by able court-appointed counsel. Prior to arraignment appellant was accorded an examination by a sanity commission and found to be able to comprehend his position and make his defense. At the time he pleaded guilty appellant was questioned at length by the court. The following colloquy occurred: “The Court: Why is the defendant here, Mr. Brand? “Mr. Brand: The defendant wishes to enter a plea, Your Honor. “The Court: I take it he is here for arraignment. “Mr. Brand: Yes, sir. This is for arraignment. “The Court: Is he here for arraignment in each of the two cases described by the State? “Mr. Brand: Yes, sir. “The Court: Let’s take the cases one at a time. Case Number 5750 appears to have been filed first. “Mr. Brand: The defendant wishes to enter a plea of guilty to the charge. “The Court: What about reading the Information? “Mr. Greathouse: No, that won’t be necessary, I have had ample time to go over it, sir. “The Court: Then the defendant waives reading of the Information? “Mr. Greathouse: Yes, sir, I do. “The Court: Having waived reading of the Information, what is your plea to the charge set out therein? “Mr. Greathouse: Guilty. “The Court: What is the charge? “Mr. Greathouse: It’s first degree robbery and — is that all? — yes, first degree robbery, sir. “The Court: Do you know what the penalty is for that crime? “Mr. Greathouse: Yes, sir. Ten years to twenty-one years in the State Penitentiary at Lansing. “The Court: Is your true name Von J. Greathouse? “Mr. Greathouse: Yes, sir, that is correct. The initial is just J, it doesn’t stand for a name. “The Court: Have you had ample time to consider the charge in this Information with your attorney Mr. Brand? “Mr. Greathouse: Yes, sir, we discussed it. I have had full ample time to discuss both cases, and I am guilty on both charges and there is no use to, you know, prolong it. “The Court: There is no question about your plea being voluntary? “Mr. Greathouse: No, sir, it is strictly voluntary, and I am entering a voluntary plea of guilty on both counts. “The Court: There have been no promises made to you? “Mr. Greathouse: No, sir. “The Court: No threats? “Mr. Greathouse: No threats, no promises, and I am going to the penitentiary, I am aware of that. “The Court: Do you think that any of your constitutional rights have been violated in connection with your case up to this point? “Mr. Greathouse: No, not in so far as both my cases are concerned and the way I have been treated in the jail and the way I was treated I do not think any of my rights have been hurt or hindered in any way whatsoever. “The Court: Now let’s go to 5751. “Mr. Brand: This is for arraignment also, Your Honor. The defendant appears with his attorney John W, Brand, Jr., and the defendant will waive reading of the Information and enter a plea of guilty. “The Court: You have pretty much covered this other case in connection with Case No. 5750, Mr. Greathouse, but it is a separate case and there is one feature about it that I want to be certain you understand in connection with your plea, if it is your plea that you are guilty? “Mr. Greathouse: Yes it is guilty. I mean I am guilty, and I am entering a plea of guilty. “The Court: You are aware of the fact, I am sure, from your consultations with Mr. Brand, where you are convicted by your plea or by verdict of a jury in two felony cases on the second felony case in connection with the sentence the Court has the discretion to make the sentence run consecutive to the sentence in the first case. You are aware of this are you? “Mr. Greathouse: Yes, I am aware of that. “The Court: And being aware of that, your plea to this crime is guilty? “Mr. Greathouse: Yes, it is. “The Court: And in connection with this case you have not been deprived of any of your rights that you are aware of? “Mr. Greathouse: No, sir, I have not. “The Court: And your plea in this case as in the other case is voluntary? “Mr. Greathouse: Yes, sir, it is Completely.” A report of presentence investigation indicated appellant was in good health. This report also stated that while appellant was in custody in the Douglas county jail detainers were filed charging him with the offenses of kidnapping and first degree robbery in the state of Oklahoma and first degree robbery in Montgomery county, Kansas. At the allocution afforded prior to sentencing appellant offered nothing. The court recommended that appellant be transferred to the state reception and diagnostic center. This was done and a report from that institution indicated he was in good health while confined there. In denying appellant’s motion the trial court made detailed findings of fact and concluded an evidentiary hearing was unnecessary. The case is similar to Griffin v. State, 204 Kan. 340, 461 P. 2d 814, in which it was held denial of an evidentiary hearing was not error. The same ruling must be made here. Appellant was represented by competent counsel throughout. The sentencing court exerted a painstaking effort to ascertain the facts surrounding the pleas of guilty with the result the record affirmatively revealed those pleas were voluntarily made with full awareness of their consequences. Lack of an arrest warrant, standing alone, does not invalidate a subsequent conviction (Kinnell v. State, 205 Kan. 445, 469 P. 2d 348). The uncounseled lineup of which appellant complains occurred in May, 1967 — prior to the nonretroactive Wade-Gilbert rule applicable only to cases involving confrontations for identification conducted after June 12, 1967 (State v. Chuning, 201 Kan. 784, 443 P. 2d 248). It appears a later lineup of which appellant complains was unconnected with his identification upon the present offenses. As to the coercive impact of the Oklahoma charge we need say only that a plea of guilty is not rendered invalid merely because entered to avoid the possibility of a death penalty in another case (see Brady v. United States, 397 U. S. 742, 25 L. Ed. 2d 747, 90 S. Ct. 1463). Finally, appellant’s own statement at the time he pleaded guilty, along with the presentence investigation and the diagnostic center reports as to his health, attested to the absence of mistreatment while in jail. In view of the foregoing, appellant’s application was patently groundless and the trial judge, the same judge who had sentenced appellant, properly denied relief without evidentiary hearing. The judgment is affirmed. APPROVED BY THE COURT.	[ 112, -22, -7, 30, 27, 96, 10, -68, 65, -25, 114, 115, -23, -38, 1, 121, -2, 93, 85, 121, -37, -105, 87, 65, -14, -37, -111, -43, -75, -49, -92, 20, 76, -96, -126, -43, 102, -104, -121, 30, -114, 1, -72, -57, -110, 10, 48, 73, 86, 11, 49, 30, -13, 42, 26, 72, 9, 44, 27, 61, -64, -72, -117, -105, -23, 4, -94, 36, -104, 7, 114, 46, -100, 49, 0, -24, 113, -106, -122, 116, 105, -101, -92, 108, 98, 1, 85, -19, -24, -119, 30, 62, -115, -58, -47, 81, 97, 37, -106, -99, 115, 20, 14, 124, -1, 20, 21, 108, 15, -50, -76, -77, -51, 53, -98, -101, -5, 1, 32, 49, -49, -30, 92, 87, 113, -37, -50, -80 ]
The opinion of the court was delivered by Harman, C.: The action in district court was one to quiet title to real estate. The principals in the case are father and son. In trial to the court the plaintiff son and his wife prevailed and the defendant father has appealed. At trial some salient facts were in dispute and others were not fully developed because of loss of recollection of the witnesses. We summarize those pertinent to determination of the controversy as revealed by the record. The defendant A. J. Place was a successful dairy farmer in the Emporia area. In 1958 his wife of many years, Janis Place, passed away. Prior to this time A. J. had talked to his son Lloyd about conveying his property to him. Lloyd had quit school while in either the tenth or eleventh grade to work on the dairy farm. His father had said he would give him all he had if Lloyd would stay and work on the farm and do as he said. Mr. and Mrs. Place were the parents of four children: The plaintiff Lloyd and three daughters, Wanda, LaVon and Darlene. At the time of his wife’s death A. J. was the record owner of three tracts of land in Lyon county consisting of small rental properties in Emporia known as the “town property” and two tracts comprising the Place farm which were known as the “home place” and the “east place”. On February 24, 1958, four days after the death of Janis Place, A. J. took Lloyd and his wife Mary Ann to the office of an Emporia attorney where two deeds had been previously prepared at A. J.’s direction. A. J. said he was going to give Lloyd all the property. One deed, dated February 24, 1958, was a warranty deed conveying the three tracts of land from A. J. to Lloyd and Mary Ann. A. J. executed this deed and delivered it to Lloyd with instructions to have it recorded promptly, which instructions were complied with. At the same time Lloyd and his wife signed another deed, dated February 25, 1958, conveying the same property to A. J. The principal factual dispute concerns the events on this occasion. Lloyd testified this second deed with folded and he did not read or examine it but simply signed where his father directed. In signing instruments he had always relied upon his father. He further testified A. J. said he wanted the paper signed so that he could live on the home place during his lifetime. Lloyd thought the paper was an agreement to this effect. Lloyd’s wife, Mary Ann, substantiated this testimony, testifying that after the deeds were signed A. J. stated the property now belonged to Lloyd and her. Lloyd and Mary Ann signed the second paper believing it would allow A. J. to live on the farm the rest of his life. A. J. disputed much of the plaintiff’s testimony but admitted execution of the two deeds. His version of the signing of these two instruments was simply “so that I would have protection, and I wanted him to deed the deeds straight back to me so I could put it in my name anytime I wanted to — back again”. His memory was faulty with respect to several aspects of the transaction. He testified he had no intention of conveying the property to Lloyd; right after his wife died he was thinking of remarriage. Later A. J. also procured placement of title to another piece of realty in Lloyd’s name, which property is also the subject of this action, being a 120 acre tract known as the “Collins tract”. This tract had been previously farmed by the Places and was being purchased in the name of A. J.’s daughter Wanda under a contract of sale; however, all payments on the contract were made by A. J. Wanda had assigned her interest in the contract to Mrs. Janis Place. Upon Janis’ death A. J. was appointed administrator of her estate. He obtained disclaimers to the property from all the Place children, paid off the remainder of the contract price and had the seller execute a warranty deed to the property to Lloyd. This deed was executed September 24, 1959. As in the 1958 transaction A. J. at substantially the same time obtained a deed back to him for the Collins land from Lloyd and his wife. Lloyd’s deed was promptly recorded — A. J.’s was not. None of the parties had any recollection of events occurring in connection with the signing of these deeds and Lloyd’s first awareness he was the owner of this tract came when he noticed the Collins land was listed on his real estate tax notice. However, all parties concede the two deeds were in fact executed as indicated. Lloyd always thought the Collins tract was a part of the Place farm. A. J. also had a disagreement with two of his daughters following Mrs. Janis Place’s death respecting the disposition of the proceeds of certain bonds which had been held in the names of Mrs. Place and the two daughters. Apparently affairs between A. J. and his son remained amicable for a period of time. Lloyd lived first in the big house on the home place and later in the smaller house with his wife and children. He operated the dairy route, to which he had previously received a bill of sale, and worked on the farm from 1958 to 1962 at which time the dairy route was sold. Thereafter Lloyd continued to work on the farm for short periods of time as well as maintain various jobs in the city of Emporia until he left the farm in 1968. Meanwhile A. J. had entered into a succession of three short-lived marriages, all terminating in divorce. He never told any of these wives he owned any real estate and in at least one of his divorce proceedings swore he owned none. During the period of amity the farm insurance was changed to show Lloyd as the owner and proceeds arising from insured building losses were paid to him; at A. J.’s request Lloyd and Mary Ann executed an amortization mortgage on the farm realty; a bank account denominated “Place farm account” was opened; Lloyd was the only person authorized to sign checks on this account but A. J. signed Lloyd’s name on the checks drawn on it; part of the Place farm was taken in condemnation proceedings; Lloyd hired the attorney and was shown in the pleadings as owner of the farm; Lloyd received the condemnation proceeds which were placed in a time deposit in his name; Lloyd and his wife executed a power line easement on the farm; farming operations were carried on under certain federal feed and grain programs with Lloyd shown in the written applications as the owner and A. J. the operator; between three and four hundred cattle were handled at times; when A. J. was injured while working on the farm he claimed and received workmen’s compensation benefits as an employee of Lloyd; in borrowing bank money for farming operations Lloyd and A. J. both were required to submit financial statements but Lloyd was shown as owner of all realty; Lloyd received a nominal monthly salary from the farm income for the small amount of work he did; A. J. had indicated he needed more quarters on his own social security program; A. J. had income tax forms prepared which Lloyd always signed without knowing the contents; some of the returns showed A. J. as Lloyd’s employer. Considerable evidence was developed respecting the farming operations but there was no evidence of any actual change in their method after the 1958 deeds were signed. A. J. always collected the rental on the city properties. In 1954 A. J. had had a large judgment in federal district court entered against him allegedly for an assault upon an employee and as a result of his testimony in the trial of that case he had thereafter been convicted of perjury, subornation of perjury and attempting to corrupt justice. Eventually relations between A. J. and Lloyd deteriorated, ostensibly because of A. J.’s drinking and his treatment of Lloyd’s children, to the point Lloyd moved off the farm. On November 22, 1967, A. J. recorded his two deeds from Lloyd and he also recorded a deed he had made to his daughter LaVon L. Brockelman and her husband Marvin G. Brockelman purportedly conveying all the realty in question to them. At the same time this latter deed was executed by A. J. he had the Brockelmans sign another deed conveying the property to him but A. J. did not record this deed. Lloyd and Mary Ann thereafter filed this suit naming A. J. and the Brockelmans as defendants and embracing title to certain personalty as well as the real estate already mentioned. The Brockelmans filed an answer disclaiming any interest in the property sought by plaintiffs and thereafter upon plaintiffs’ application the action was dismissed as to them. Issues were joined as to A. J. and trial had. The trial court entered the following findings and judgment: “It is the opinion of the court that it was the intention of the parties that A. J. Place would retain the life use of all the real estate and the complete ownership of all the personal property located on the real estate in question, and that Lloyd V. Place and Mary Ann Place would be the owners of the real property upon the death of A. J. Place. It is also the opinion of the court that A. J. Place, by his conduct, disclaimer of interest and statements under oath that he did not have any interest in said real property, should be estopped to claim any interest in the real estate other than the life use of the same. “It is the judgment of the court that the defendant, A. J. Place, is declared to be the owner of all the personal property and the life use of all the real property and that plaintiffs are adjudged to be the owners of the remainder interest in all the real estate. . . .” A. J. has appealed from that portion of the judgment decreeing a remainder interest in the realty in Lloyd and Mary Ann. The latter have not appealed from any part of the judgment. Appellant makes several contentions. He asserts the trial court erred in not giving full force and effect to appellees’ two deeds of reconveyance to him and decreeing him thereby to be the complete fee title owner of the realty. Appellant’ position does not take into account a general rule of contract construction. In Skinner v. Skinner, 126 Kan. 601, 270 Pac. 594, the litigants substantially contemporaneously executed two contracts conveying ownership of stock first to one party and then back to the other, the initial owner. This court held: “Where two instruments are executed by the same parties, at or near the same time, in the course of the same transaction, and concerning the same subject matter, they will be read and construed together, although they do not in terms refer to each other.” (Syl. ¶ 1.) Where such instruments are construed together, the general purpose of the entire transaction should control (26 C. J. S., Deeds, § 91a, p. 841). Another rule coming into play was expressed in Gaynes v. Wallingford, 185 Kan. 655, 347 P. 2d 458, in this manner: “A court of equity once having acquired jurisdiction of a subject matter will reach out and draw into its consideration and determination the entire subject matter and bring before it the parties interested therein, so that a full, complete, effectual and final decree adjusting the rights and equities of all the parties in interest may be entered and enforced.” (Syl. ¶ 1.) Hence the trial court did not err in refusing to give determinative effect to the one instrument to the complete exclusion of the other. The trial court based its judgment giving appellees a remainder interest in all the realty on two separate grounds — intention of the parties in the execution of the deeds and equitable estoppel. The ruling is attacked and defended on both grounds. We may quickly dispose of the issue of the propriety of the judgment based upon equitable estoppel. The elements of that doctrine were succinctly stated in Pelischek v. Voshell, 181 Kan. 712, 313 P. 2d 1105, as follows: “. . . in order to constitute an estoppel (1) there must have been a false representation or concealment of material facts; (2) it must have been made with knowledge, actual or constructive, of the facts; (3) the party to whom it was made have been without knowledge or the means of knowing the real facts; (4) it must have been made with the intention that it should be acted upon, and (5) the party to whom it was made must have relied on or acted upon it to his prejudice.” (p. 717.) We need not belabor the facts already recited. Obviously, certain essential aspects of this defense are lacking. Suffice it to say appellees never changed their position or acted upon anything done by appellant to their prejudice. The exchange of the deeds caused not a ripple of change in the method of operations respecting the land to appellees’ detriment nor any other kind of financial detriment. The judgment simply cannot be sustained on the basis of estoppel. We discuss next the property which was the subj'ect of the February 24, 1958, transaction. In effect the trial court found as to this property the parties intended thereby to create a remainder interest in the realty in appellees with the retention of a life estate in appellant. The intention of the parties was a factual issue upon which the trial court received evidence pro and con without objection. It chose to accept appellees’ version of the facts in dispute. Appellees claim the remainder estate as a result of a gift and not by way of any contractual arrangement to remain on the farm or to care for appellant. We see no impediment to this claim. Upon appellate review we are not concerned with disputed factual issues but look only to sufficiency of the evidence to support the findings made by the trier of the fact. There was ample evidence to support the theory of a gift upon the February 24th occasion. Likewise appellees’ evidence sufficiently supports the finding with respect to the parties’ intention. Although the court’s finding of a retention of a life interest in appellant was perhaps more generous in his favor than appellees’ testimony would have warranted (a life estate in the “town property”, the “home place” and the “east place” rather than the right to live in the big house on the “home place”) appellees have not appealed from this finding. Moreover, the evidence of the conduct of the parties in handling the Place farm and the town property following these deeds is consistent with the intention found by the trial court. Generally it revealed Lloyd retained the capital while A. J. received the income. Hence the trial court’s action in awarding appellees a remainder interest in the realty which was the subject of the February, 1958, transaction must be upheld. A different question is presented with respect to the “Collins tract”. As already stated the trial court’s judgment as to it may not be upheld on the ground of estoppel. There was no testimony by anyone concerning the execution of the Collins deeds between the parties in September, 1958. Both deeds were received in evidence. Although appellees were forced to concede their execution of a deed conveying the Collins land back to appellant, neither appellee had any recollection of that event or tire circumstances. Lloyd first learned he was the record owner of an interest in the Collins land when that land was listed on his tax notice statement. Consequently we have nothing as to the parties’ intention in executing these two deeds and the trial court’s finding on intention may not be upheld because of this evidentiary deficiency. Appellees claim the Collins land also on the basis of a gift. However, this contention ignores the effect of the second deed executed contemporaneously by them. The legal effect of the execution and delivery of the two deeds upon the actual title, standing alone, was they accomplished nothing as between the parties. They, too, constituted parts of a single transaction which left the title where it previously was, in this instance in appellant, who must prevail as to this land. Consequently the trial court’s judgment with respect to the “town property”, the “home place” and the “east place” is affirmed; the judgment as to the “Collins tract” is reversed with directions to enter judgment for appellant. approved by the court.	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The opinion of the court was delivered by Hatcher, C.: This appeal stems from an action by the parents of a four year old daughter for her wrongful death. The facts are not in dispute. On March 28, 1968, Glenda Kaye Penachio, a pedestrian four years of age, was struck and severely injured by a motorcycle operated by the defendant, resulting in her death on April 1, 1968. The defendant was an uninsured motorist and Farmers Insurance Exchange had in effect at the time of the death an automobile insurance policy providing for uninsured motorist coverage for plaintiffs and family. Pursuant thereto the sum of $8,000.00 was paid to Danny R. Penachio and Kathleen R. Penachio, the parents of the deceased, Glenda Kaye Penachio. Thereafter the Farmers Insurance Exchange filed an action against the defendant, Robert G. Walker, to recover the $8,000.00 which they had paid. The action was filed in the name of the insuror for subrogation as authorized by K. S. A. 1968 Supp. 40-287. The petition alleged the facts as above stated and prayed for judgment in the amount of $8,000.00 and costs. The defendant answered alleging as an affirmative defense that the injuries and death resulted from Glenda’s and her parents’ negligence or contributory negligence. The answer also alleged in the alternative that plaintiff, the insuror, had no right of subrogation. The defendant then filed interrogatories with plaintiffs’ answers. They read in part: “4. Under what part of the policy in question did plaintiff pay the amount claimed? “Answer: “Under the uninsured motorist coverage. “5. To -whom was the check paid to and what was the date of payment? “Answer: “Danny R. Penachio and Kathleen R. Penachio, 10-25-68. “6. What elements of damages was the amount paid for? “Answer: “Compromise settlement which was not itemized, but within the $10,000.00 uninsured motorist coverage limit.” (Emphasis supplied.) The part of the policy in which we are immediately interested reads: “(3) Payment of Loss: Loss arising out of bodily injury, sickness or disease is payable to the insured, or if the insured be a minor, to his parents or guardian; and loss arising out of death is payable to the surviving spouse, if any, of the insured, if a resident of the same household at the time of the accident, otherwise to the insured’s estate.” (Emphasis supplied.) Following the filing of the answer to the defendant’s interrogatories the defendant, on May 6, 1969, filed a motion for summary judgment which was granted and journalized by the trial court on June 5, 1969. The trial court did not state a reason for granting the summary judgment. However, we find a narrative statement in the record, which does not appear to be disputed, that reads: “That defendant’s Motion for Summary Judgment was sustained on the grounds Farmers Insurance Exchange had not paid pursuant to the terms of their policy and therefore, the payment was a volunteer payment. . . .” The insurer had paid to parents rather than to the estate of the four year old child. No appeal was taken from the motion for summary judgment against the plaintiff, insurance carrier, and the judgment became final. In the meantime, May 23, 1969, the parents of Glenda brought an action under the wrongful death statute (K. S. A. 60-1901, et seq. and K. S. A. 1967 Supp. 60-1903) for the recovery of damages for death in the amount of $35,000.00 and medical and general expenses in the amount of $1,973.31. The petition also prayed for punitive damages in the amount of $35,000.00. The defendant answered by way of a general denial and alleged negligence on the part of the child and the parents as an affirmative defense. Later, the defendant filed an amended answer which supplemented its original answer with the following: “That the plaintiffs are barred from the prosecution of this suit; the matter being res adjudicata. “That the plaintiffs are barred from the recovery herein by the doctrine of collateral estoppel; there being a prior case between the plaintiffs, their insurance carrier, and the defendant, having been determined adversely to the plaintiffs and their insurance carrier, the Farmers Insurance Exchange, Case No. C-15844.” When the matter came on for pretrial the defendant moved to dismiss the plaintiffs’ cause of action for the reason they were barred by the judgment in the insuror’s action for subrogation. The trial court sustained defendant’s motion to dismiss, concluding: “That the adjudication made in the case entitled Farmers Insurance Exchange v. Robert G. Walker, Case No. C-15844 is binding upon the Plaintiffs herein and upon the basis of Collateral estoppel and res adjudicata the Plaintiffs are barred from proceeding herein.” It is the appeal from this order dismissing plaintiffs’ petition that we now have before us for review. Perhaps before considering the legal question, we should first consider the specific issue to which the facts and the law are to be applied. The trial court dismissed the action because the plaintiffs, the parents, were barred from proceeding on the basis of collateral estoppel and res judicata. Courts have sometimes used the two terms synonymously and if a party is barred from relitigating a matter it can make little difference to him by what name the lethal doctrine is called. However, the two doctrines have different application and a distinction should be recognized. The doctrine of res judicata is a bar to a second action upon the same claim, demand or cause of action. It is founded upon the principle that the party, or some other with whom he is in privity, has litigated, or had an opportunity to litigate, the same matter in a former action in a court of competent jurisdiction. The doctrine of collateral estoppel is a bar in an action upon a different claim as to certain matters in issue which were determined in a former judgment. The distinction between res judicata and collateral estoppel is based on the distinction between a cause of action and issues in a cause of action. (James, Civil Procedure, § 11.18, p. 575; 46 Am. Jur. 2d, Judgments, § 398, p. 566; 50 C. J. S., Judgments, § 593, p. 13.) Although collateral estoppel is not as broad in scope as the doctrine of res judicata, the necessary elements which make the two doctrines applicable are much the same. Without reviewing all of the necessary elements it will suffice for the purpose of this opinion to state that there must be a judgment on the merits which determines the rights and liabilities of the parties based on the ultimate facts as disclosed by the pleadings or issues presented for trial, James, Civil Procedure, § 11.19, p. 576 and § 11.20, p. 579; 50 C. J. S., Judgments, § 627, p. 52, and neither doctrine operates to affect those who were neither parties nor in privity therein. (50 C. J. S., Judgments, § 762, p. 288.) In Wells, Administrator v. Ross, 204 Kan. 676, 465 P. 2d 986, we stated at page 678: “The doctrine of res judicata is a rule of public policy. It is to the interest of the state that there be an end to litigation and an end to the hardship on an individual being vexed more than once for the same cause. The doctrine is, therefore, to be given a liberal application but not applied so rigidly as to defeat the ends of justice. “The doctrine means that, if an action is brought, the merits of the question are discussed and a final judgment is obtained by either party, the parties are concluded and. cannot again canvass the same question in another action. In Kenoyer v. Board of Barber Examiners, 176 Kan. 424, 271 P. 2d 267, we stated: “ ‘This state has long followed the rule that to make a matter res judicata there must be a concurrence of four conditions, namely, (1) identity in the thing sued for; (2) identity of the cause of action; (3) identity of persons and of parties to the action, and (4) identity of the quality in the persons for or against whom the claim is made. (A. T. & S. F. Rld. Co. v. Comm’rs of Jefferson Co., 12 Kan. 127; Hofstetter v. Myers Construction, Inc., 170 Kan. 464, 227 P. 2d 115.)’ (p. 427.)” We must agree with the appellants that the disposal of the action brought by the Farmers Insurance Exchange did not determine on the merits the claim of appellants against the appellee for the death of their minor daughter and the appellants were not parties or in privity with the plaintiff in the former action. The Farmers Insurance Exchange brought the first action on the theory of subrogation. The trial court held that the company had not paid the money to the proper party therefore it had no right to subrogation. It will be understood that the validity of this determination is not before us. The determination could not, however, under any possible theory, be a determination of the liability of the defendant for the negligent wrongful death of the four year old child. All that the trial court found was that the Farmers Insurance Exchange was not a subrogee and therefore had no standing to sue. Privity means a mutual or successive relationship to the same legal rights. In 46 Am. Jur., Judgments, § 508, p. 662, we find the following statement: “The general rule is that a judgment rendered because of a defect of parties does not operate to bar a subsequent action. This rule prevails whether the judgment is based upon a want of parties, a misjoinder of parties, a temporary disability of the plaintiff to sue, or a mistake of the plaintiff as to the character or capacity in which he brings suit. . . .” The very reason for the decision in favor of the defendant in the previous case refutes the appellee’s contention that the appellants were in privity with the plaintiff. The trial court found that the Farmers Insurance Exchange was not a subrogee and had no right to subrogation. In Old Colony Ins. Co. v. Kansas Public Ser. Co., 154 Kan. 643, 121 P. 2d 193, we state at page 646: “To what rights of Winter did the insurance company become subrogated by virtue of its voluntary payment to Winter? The doctrine of subrogation is not invoked in favor of a mere volunteer. Payment for which subrogation is claimed must have been made under compulsion, or for the protection of some interest of the party making it and in discharge of an existing liability. This rule is well established. (Safe Deposit Co. v. Thomas, 59 Kan. 470, 476, 53 Pac. 472; . . ." If there was no right of subrogation, the Farmers Insurance Exchange was a stranger or mere interloper insofar as the appellants here were concerned and no privity between the parties could exist. We find no basis for the application of the doctrine of res judicata or collateral estoppel. The judgment is reversed with instructions to proceed with the trial of the case on its merits. APPROVED BY THE COURT.	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ORDER OF SUSPENSION Whereas, In a proceeding conducted by the State Board of Law Examiners to inquire into the complaint of alleged professional misconduct by Robert E. Blase, and, Whereas, Following a full hearing as to such complaint, the State Board of Law Examiners found that Robert E. Blase, Wichita, Kansas, was guilty of violating his common-law duty to his client, and Canon Nos. 11, 15, 22, 29 and 32 of the Canons of Professional Ethics (198 Kan. xvii), see DR 1-102 (A) (3), (4) and (5) of the Code of Professional Responsibility (205 lxxvii), and, Whereas, The State Board of Law Examiners has made a written recommendation to this court that said Robert E. Blase be disciplined by “Six (6) Months Suspension of the practice of law” as provided by Rule No. 205 (m), (3), (205 Kan. lxii), and, Whereas, The said Robert E. Blase, pursuant to subdivision (n) of Rule No. 205, above, has, in writing, elected to accept such recommended discipline and to pay the costs of the proceeding, and, Whereas, Upon consideration of the record and being fully advised in the premises, the court accepts the recommendation of the State Board of Law Examiners. It is, therefore, by the court Considered, Ordered and Adjudged that the said Robert E. Blase be, and he is hereby disciplined by this court by six months suspension of the practice of law from July 16, 1971, and that he pay the costs of the proceeding. It is further Ordered that this Order of Suspension be published in the official Kansas Reports. By order of the court, dated this 16th day of July, 1971.	[ -76, 74, -100, 93, 42, 98, 56, -88, 89, -45, -73, 83, -19, -37, 5, 105, 3, 125, 25, 121, -59, -76, 118, -40, -58, -77, -7, -59, -77, 95, -28, -68, 76, 56, 74, -107, -122, -54, -40, 92, -114, 5, 73, -12, 80, 64, -80, 117, -110, 15, 49, -33, -13, 106, 31, -54, -55, 124, -40, 109, 65, -96, -101, -107, 107, 16, -125, -121, 30, 15, 80, 63, -40, 51, 43, -20, 115, -94, -126, -44, 103, 73, -120, -26, 2, 33, 25, -81, 44, -88, 15, 58, -99, -122, -103, 89, 33, -120, -106, -43, 53, 48, 39, -4, -22, -59, 21, 40, 10, -53, -124, -111, -33, 119, -98, 26, -5, -89, 16, 21, -115, -74, 94, 71, 58, 19, -97, -91 ]
The opinion of the court was delivered by O’Connor, J.: The defendant, Milas White, was convicted by a jury of attempting to pass and utter a forged instrument (K. S. A. 21-621). Following conviction, denial of a motion for new trial, and imposition of sentence under the habitual criminal act, defendant perfected his appeal. White was originally charged and tried on two counts: forgery of a check, and attempting to pass and utter the same instrument. On September 25, 1968, a jury returned a verdict of acquittal on the forgery count, but was unable to reach a verdict on the second count. A retrial on October 10, 1968, resulted in White’s conviction for the offense involved in this appeal. The evidence disclosed that on July 3, 1968, defendant entered a Safeway store in Salina and asked Darrell Breault, the assistant manager, to cash a $35 check. The check had already been prepared prior to defendant’s entering the store. The name of the purported drawer of the check was Frederick L. Wagoner. Breault requested some identification as well as a checking account number. Defendant produced an identification card with the name of Frederick Wagoner and entered an account number on the face of the check. At this point, Breault made a telephone call and defendant, suspecting that the police were being summoned, departed the store with Breault still in possession of the check. Breault was able to furnish police with the license number and description of defendant’s automobile, which led to defendant’s apprehension. After being advised of his constitutional rights by the police, defendant admitted having written the check and attempting to pass it at the Safeway store. Defendant also admitted he did not know anyone by the name of Frederick Wagoner. In a search of defendant’s automobile, conducted with his consent, police discovered an Indiana driver’s license issued to one Frederick L. Wagoner. The principal point of error asserted by defendant is that the state failed to prove an essential element of the crime of which he was convicted; namely, that the check he attempted to pass was a forged instrument. Under the provisions of K. S. A. 21-621, every person who, with intent to defraud, shall attempt to pass or utter any forged instrument, the forging of which is declared to be an offense under the statutes, knowing such instrument to be forged, shall upon conviction be adjudged guilty of forgery. Essential elements of the crime are that the instrument was forged (whether forged by the accused or some other person) and that the accused knew it was a forgery at the time he attempted to utter and pass the instrument. Such knowledge, we have said, may be proved by circumstantial evidence. (See, State v. Young, 203 Kan. 296, 454 P. 2d 724; State v. Satterfield, 202 Kan. 395, 449 P. 2d 566; State v. Murphy, 145 Kan. 242, 65 P. 2d 342.) Forgery has been generally defined as the fraudulent making or altering of a writing to the prejudice of another persons rights. The offense consists of three requisites: (1) a false writing or alteration of an instrument, (2) the instrument as made must be apparently capable of defrauding, and (3) there must be an intent to defraud. (K. S. A. 21-608; State v. Fick, 204 Kan. 422, 464 P. 2d 271.) The only element of the offense brought into question here is the sufficiency of the evidence to establish that the check was a false writing purporting to be that of another. Part of the state’s burden in this case was to prove that the signature of the purported drawer, Frederick L. Wagoner, was false or unauthorized. (State v. Swan, 60 Kan. 461, 56 Pac. 750.) There was no evidence presented by the state with respect to the existence of a Frederick L. Wagoner, or whether a person by that name had an account in the bank on which the check was drawn. The evidence is undisputed, however, that defendant admitted making the check and signing the name of Wagoner. He further acknowledged that he did not know anyone by that name. Whether the name was fictitious or that of an actual person is not important. The circumstances under which defendant presented the check and identification papers to the grocery store manager strongly suggest he pretended to be Frederick L. Wagoner. In State v. Fick, supra, this court, through Mr. Justice Kaul, observed that forgery may be committed by the signing of a fictitious or assumed name, provided the instrument is made with intent to defraud. The essence of our holding in that case was that a person affixing a signature to a check with the intention that such signature be regarded as that of another person, while purporting to be such other person, coupled with an intent to defraud, commits a forgery. The record further discloses that the police found an Indiana driver’s license issued to Frederick L. Wagoner in defendant’s automobile. Assuming there was such a person, we believe there was ample evidence to show that Wagoner’s name had been written on the check without his authority. (State v. Decker, 207 Kan. 374, 485 P. 2d 171; State v. Lovell, 132 Kan. 759, 297 Pac. 685.) After all, if defendant did not know such a person, it can scarcely be said that use of the name was authorized. To establish the corpus delicti in a forgery prosecution it is not always necessary to show by the testimony of the drawer of the instrument that authority was not given; lack of authorization may be proved by circumstantial evi dence. (People v. Battle, 188 C. A. 2d 627, 10 Cal. Rptr. 525; Avila v. People, 163 Col. 525, 431 P. 2d 782; 37 C. J. S., Forgery § 102.) In State v. Murphy, supra, it is stated: “In the verdict of guilty for uttering inheres the belief of the jury that the check was a forgery, and that appellant knew it to be a forgery. The conviction is based on direct and circumstantial evidence. There was direct evidence appellee executed this particular check. The question of his lack of authority to sign the name of Geo. H. Herman, if such person in fact existed, was determined upon circumstantial evidence.” (P. 246.) We are forced to conclude that there was sufficient evidence for the jury to infer that the check defendant attempted to pass was a forgery. For the most part, what has already been said disposes of defendant’s complaint that since he had been acquitted of the forgery charge, the trial court should not have admitted evidence he had written the check in question. As indicated earlier, the state in the present trial was required to prove the check was forged, and it was entitled to use whatever evidence it had tending to establish that element of the uttering offense. The mere fact that the jury at his first trial did not find defendant guilty of forgery did not preclude use of some of the same evidence at his second trial. The crimes of forgery and attempting to utter a forged instrument are separate and distinct offenses; conviction of one is not dependent upon conviction of the other. (See, State v. Murphy, supra; 22 C. J. S., Criminal Law § 289.) The contention is also advanced that the trial court erred in permitting the state to reopen its case after it had rested for the limited purpose of asking a detective if the defendant had admitted writing the check. This was a matter resting within the sound discretion of the trial court (State v. Wooden, 110 Kan. 315, 203 Pac. 722; 2 Hatcher’s Kansas Digest, Criminal Law § 128), and we find no basis for disturbing the lower court’s ruling. Finally, error is claimed in the trial court’s refusal to give an instruction that before the jury could find defendant guilty it must first find the check was a forgery. While the requested instruction might well have been given (See, State v. Swan, supra), its contents were substantially encompassed in the other instructions to the jury. The instructions taken as a whole clearly covered all the elements of the offense charged. (State v. Brown, 145 Kan. 247, 65 P. 2d 333; State v. Murphy, supra.) The judgment is affirmed.	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The opinion of the court was delivered by Fontron, J.: This is an appeal by the State of Kansas from an order of the district court of Lane County resentencing the defendant, Ronald Lyon, and granting him probation. The facts are not in dispute. On November 20, 1967, the defendant, appellee herein, was convicted of a felony, i. e., embezzlement by bailee, in violation of K. S. A. 21-547. On December 19, 1967, after evidence of two prior felony convictions was introduced, the defendant was sentenced to the Kansas State Penitentiary as an habitual criminal. On appeal, the judgment was affirmed in State v. Lyon, 203 Kan. 78, 452 P. 2d 838. Some two years later it was discovered, apparently as an aftermath of an action filed by the defendant pursuant to K. S. A. 60-1507, that the sentence set out in the journal entry was “for a term of not exceeding fifteen (15) years”, which would have been an invalid sentence, inasmuch as the statute (K. S. A. 21-107a) prescribes a penalty of not less than fifteen (15) years for a third-time felony offender. After the discovery was made, the state filed a motion in the criminal case for an order nunc pro tunc correcting the sentence to read “for a term of not less than fifteen (15) years” (as required by the statute) to conform to the sentence which the state alleged was actually pronounced. Both the defendant’s 60-1507 action and the state’s nunc pro tunc motion were called for hearing April 8, 1970, at which time Mr. Lyon personally appeared with court appointed counsel. On this date the presiding judge was the Honorable Maurice A. Wildgen who had succeeded Judge Bert J. Vance, the sentencing judge, as a result of judicial redistricting. At the inception of the hearing Judge Wildgen announced he would first take up the state’s motion for an order nunc pro tunc. Thereupon the state introduced evidence in support of its motion as follows: 1. A certified transcript of the proceedings had in open court on December 19, 1967, wherein Judge Vance sentenced the defendant to “be confined at hard labor in the Kansas State Penitentiary at Lansing, Kansas, for a term of not less than fifteen years.” 2. A photostatic copy of Judge Vance’s trial notes found in the trial criminal docket showing that the defendant was “Sentenced to not less than 15 years Kansas State Penitentiary at Lansing.” 3. Notice of appeal filed by defendant from “the judgment rendered and made in the above entitled action on the 19th day of December, 1967, whereby it was by the District Court of Lane County, Kansas, decided, ordered and adjudged that the defendant be confined in the Kansas State Penitentiary at Lansing, Kansas, for a period of not less than 15 years.” 4. The first sentence of this court’s opinion in State v. Lyon, supra, of which the trial court took judicial notice, reading as follows: “The defendant, Ronald Lyon, was convicted by a jury of the crime of embezzlement by a bailee in violation of K. S. A. 21-547. He was sentenced to a term of not less than fifteen years in the Kansas State Penitentiary pursuant to K. S. A. 21-107a.” At the conclusion of the foregoing evidence, defense counsel asked to place his client on the stand to testify “for the Court’s benefit in resentencing [Mr. Lyon].” Lyon’s subsequent testimony did not pertain to the issue raised by the state’s nunc pro tunc motion nor did it tend in anywise to refute the evidence supporting the state’s motion. After hearing the defendant’s testimony, Judge Wildgen found the sentence pronounced on December 19, 1967, was erroneous, irregular and therefore void and could not be corrected by a nunc pro tunc order. Accordingly the court, on April 8, 1970, overruled the state’s motion to correct the journal entry to conform to the sentence and proceeded to impose a new sentence of imprisonment against Mr. Lyon “for a term of not less than fifteen (15) years.” Nearly two months later, and on June 3, 1970, Judge Wildgen entered an order probating Mr. Lyon for a period of not less than two nor more than five years upon various terms, conditions and restrictions. The state, as we have already intimated, took exception to the trial court’s action and has brought the matter here for review. It is the state’s position that a valid sentence was imposed against the defendant on December 19, 1967; that the journal entry, through clerical error, erroneously reflected a different sentence, which was invalid, and hence the journal entry was subject to correction by means of an order nunc pm tunc; that a valid sentence having been pronounced on December 19, 1967, the trial court no longer had jurisdiction to sentence or to resentence the defendant on April 8, 1970; and that the purported sentence, pronounced by Judge Wildgen on April 8, 1970, together with the attempted order of probation dated June 3, 1970, were void and of no legal effect. We are inclined to agree with the state’s position. The record leaves no room for doubt that the defendant was correctly sentenced by Judge Vance on December 19, 1967. The state’s evidence, which was not refuted in any way, discloses that Mr. Lyon was sentenced to a term of not less than fifteen years, rather than to a term of not more than fifteen years as the journal entry sets forth. It is a well settled principle of law that a court possesses inherent power to enter judgments, orders and decrees nunc pm tunc for the purpose of correcting its records, and that where a journal entry fails to reflect accurately the judgment which was actually rendered, it becomes the duty of the trial court to make it speak the truth. (See cases in 3 Hatcher’s Kansas Digest [Rev. Ed.] Judgments, § 11.) The reasoning behind this general rule has been applied both to civil and to criminal actions. (Ramsey v. Hand, 185 Kan. 350, 360, 343 P. 2d 225; Tafarella v. Hand, 185 Kan. 613, 617, 347 P. 2d 356; State v. Igo, 194 Kan. 550, 552, 400 P. 2d 968. Federal courts, as well as state, have come to grips with problems in this area. In Hill v. Wampler, 298 U. S. 460, 464, 80 L. Ed. 1283, 56 S. Ct. 760, the United States Supreme Court had this to say on the subject: “Two of the questions certified to us . . . make mention of a variance between the commitment and the sentence ‘orally pronounced.’ If that were the only variance, we should deem it unimportant. The only sentence known to the law is the sentence or judgment entered upon the records of the court. [Citing cases.] If the entry is inaccurate, there is a remedy by motion to correct it to the end that it may speak the truth. . . .” See, also, United States ex rel. Sterling v. Pate, 403 F. 2d 425 (1968); Accardi v. Blackwell, 412 F. 2d 911 (1969). The state’s motion for an order nunc pro tunc correcting the journal entry to speak the truth was entirely proper, and should have been sustained. The record clearly refutes the trial court’s finding that the original sentence was “erroneous, irregular, and therefore void.” To the contrary, the journal entry itself was incorrect in its reflection of an invalid sentence. The foregoing conclusion requires that the purported sentence imposed by Judge Wildgen on April 8,1970, be vacated. The great weight of authority in this country is to the effect that when a valid sentence has once been pronounced and put into execution, the trial court cannot modify, amend or reverse the same in any respect. (168 A. L. R. 706 Anno., Criminal Law-Changing Sentence.) Kansas adheres to this general principle of law. In Parks v. Amrine, 154 Kan. 168, 117 P. 2d 586, it was held: “When a valid judgment and sentence has been rendered in a criminal case the court has no authority after the sentence imposed has been served, in whole or in part, to set it aside and hear additional evidence and impose a new sentence, even though this be done at the same term of court.” (Syl. ¶ 2.) See, also, State v. Carte, 157 Kan. 139, 138 P. 2d 429; Layman v. Hudspeth, 162 Kan. 445, 176 P. 2d 527. The purported sentence of April 8,1970, being void, the court had no authority to grant probation to the defendant on June 3, 1970. It is true that under K. S. A. 1967 Supp. 62-2239 (now K. S. A. 1970 Supp. 21-4603) the trial court is empowered to modify a sentence within one hundred twenty (120) days after it is imposed. However, that period of time had long expired in this case, for the stat utory time commenced to run from December 19, 1967, the date on which the legal sentence was imposed and not from April 8, 1970, when the court purported to pronounce sentence anew. The judgment is reversed with directions to sustain the state’s motion for an order nunc pro tunc and to correct the journal entry in State of Kansas v. Ronald Lyon, No. 312, in accordance with the prayer of said motion; tO' vacate the judgment of April 8, 1970, finding the sentence of December 19, 1967, to be void; to vacate the purported sentence imposed against defendant April 8, 1970; to vacate the order of probation entered under date of June 3, 1970; and to proceed with the hearing of whatever matters may remain for determination in the defendant’s action filed under K. S. A. 60-1507.	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The opinion of the court was delivered by O’Connor, J.: This is a declaratory judgment action to determine whether the statutory share distributable to a widow as a result of her election to take under the law and against the will of her deceased husband is to be charged with any part of the federal estate tax imposed on the husband’s estate. Frank L. Christopher, of Wichita, died testate on November 9, 1967, leaving an estate subject to probate in excess of $4,000,000. Stanley Spurrier (appellant herein) was duly appointed executor of the will by the probate court of Sedgwick county. The widow, Birdie M. Christopher, filed her timely election to take under the law as permitted by K. S. A. 59-603. On December 25, 1968, the widow died testate and the First National Bank of Wichita (appellee herein) was duly appointed executor of her will. In preparing the federal estate tax return for the husband’s estate, his executor charged the share to be received by the widow with its proportionate amount of the husband’s federal estate tax. This resulted in the widow’s share, calculated at $2,106,879.34, being reduced by $410,407.35 (one-half of the federal estate tax on the husband’s estate). The executor of the widow’s estate took exception and contended that the widow’s share, to the extent it qualified for the marital deduction under the provisions of the Internal Revenue Code (not exceeding one-half the value of the adjusted gross estate), should not be charged with or reduced by any part of the federal estate tax levied on the husband’s estate. In order to resolve this controversy the present action was filed. The district court heard the matter on stipulated facts and concluded that the statutory share of the widow, to the extent it did not exceed the maximum allowable marital deduction, should not be diminished by any portion of the husband’s federal estate tax; hence, this appeal. At the outset we are told that under the method of computation utilized by appellant, not only is the widow’s share reduced by $410,407.35, but also the total federal estate tax on the husband’s estate will be approximately $155,086.92 more than under the method approved by the trial court. Under provisions of the Internal Revenue Code, the federal estate tax is imposed on the transfer of the taxable estate of the decedent. (26 U. S. C. A. § 2001.) The value of the taxable estate is determined by deducting from the value of the gross estate the exemption of $60,000 and certain deductions. (26 U. S. C. A. § 2051, 2052.) One such deduction, called the marital deduction, is an amount equal to the value of any interest in property which passes or has passed from the decedent to the surviving spouse, but not exceeding 50% of the value of the “adjusted gross estate.” (26 U. S. C. A. §2056.) The marital deduction was written into the Internal Revenue Code in 1948 in order to place taxpayers in common-law states on an equal basis taxwise with those in community-property states. In general, the deduction was intended to permit a surviving spouse to take a portion of the decedent’s estate free of the burden of federal estate taxes. (1948 U. S. Code Cong. Serv. Vol. 2, pp. 1188-1191; Senate Rep. No. 1013, 80th Congress, 2d Session, 1948-1 I. R. B.) Congress made no attempt in the revenue laws to provide for distribution of the burden of the federal estate tax. The code merely contemplates that the federal estate tax shall be paid out of the taxable estate unless otherwise directed by decedent’s will. Thus, when there is no direction in the will or decedent dies intes tate, federal statutes leave it to the states to determine how the tax burden shall be distributed among those who share in the taxed estate. (In re Estate of West, 203 Kan. 404, 454 P. 2d 462.) In Riggs v. Del Drago, 317 U. S. 95, 87 L. ed. 106, 63 S. Ct. 109, the United States Supreme Court said: “We are of the opinion that Congress intended that the federal estate tax should be paid out of the estate as a whole, and that the applicable state law as to the devolution of property at death should govern the distribution of the remainder and the ultimate impact of the federal tax; . . .” (pp. 97-98.) (Also, see, Fernandez v. Wiener., 326 U. S. 340, 90 L. ed. 116, 66 S. Ct. 178.) In this jurisdiction, when a widow renounces benefits attempted to be conferred upon her under the will of her husband and elects to take under the statute (K. S. A. 59-603), she receives the share of his estate that she would have taken had he died intestate. Her share is carved out of the estate according to the laws of intestate succession, just as if no will had been made. (Tomb v. Bardo, 153 Kan. 766, 114 P. 2d 320; Ashelford v. Chapman, 81 Kan. 312, 105 Pac. 534.) The share to be received by a surviving spouse who elects to take under the law is subject to the provisions of K. S. A. 59-502 which read as follows: “Subject to any homestead rights, the allowances provided in section 21 [59-403], and the payment of reasonable funeral expenses, expenses of last sickness and costs of administration, taxes, and debts, the property of a resident decedent, who dies intestate, shall at the time of his death pass by intestate succession as provided in this article.” [Emphasis added.] This brings us to the question of whether the statute requires that the widow’s share qualifying for the marital deduction be subjected to its proportion of the federal estate tax. The parties concede that under the foregoing statute her share of the estate is determined after payment of debts and costs of administration, and that such share is burdened by state inheritance taxes and the federal estate tax on all amounts which do not qualify for the marital deduction. Appellant takes the position that prior to enactment of the marital deduction in 1948, the entire federal estate tax would have been paid before calculation of any distributive share; i. e., the word “taxes” in K. S. A. 59-502 included the federal estate tax assessed against the estate. Appellant argues that the result should be the same after the marital deduction came into existence in the absence of a specific statute implementing the tax advantage contemplated by Congress. Under this view, since the legislature has not seen fit to change the statute and relieve the surviving spouse from the burden of the federal estate tax, to the extent of the marital deduction, appellant urges that this court should decline to do so by resorting to the application of equitable principles. In a number of states there are specific statutes providing for the apportionment of the federal estate tax. Those statutes, in the main, were intended to prevent the burden of the federal estate taxes from falling on residuary legatees, and to cause each person who took from a decedent to pay that part of the tax which accrued by reason of the value of the property he took. In addition, most of those statutes, either expressly or as construed by the courts, provide that any deduction allowed the surviving spouse should inure to the benefit of such spouse, and thus, the surviving spouse pays no federal estate tax by reason of the fact he or she received a portion of decedent’s estate in the form of a marital deduction. (See, Hammond v. Wheeler, 347 S. W. 2d 884 [Mo. 1961].) Kansas has not enacted an apportionment statute. That being the case, this court has held in accord with the general rule that in the absence of anything in the will to the contrary, the burden of federal estate taxes falls on the residuary estate. (In re Estate of West, supra; Central Trust Co. v. Burrow, 144 Kan. 79, 58 P. 2d 469.) The only occasion on which this court has been confronted with the question of whether the marital deduction was to be burdened with a proportionate share of the federal estate tax was In re Estate of Rooney, 186 Kan. 200, 349 P. 2d 916. There, decedent’s will provided that “Federal and State Inheritance taxes which will be assessed against my estate” be paid by the beneficiaries “each their proportionate share.” Upon final settlement of the estate, the executrix (widow), in computing the federal estate tax apportionment among the beneficiaries, took for herself the full marital deduction free of any burden of the tax. One of the beneficiaries took exception to this distribution and apportionment, claiming that his share was reduced by a larger portion of the tax than was properly chargeable to him and that the tax should have been spread over the entire estate, including the widow’s one-half which qualified for the marital deduction. The district court, in holding that for purposes of computing the proportionate amount of the tax owed by each beneficiary the marital deduction property was to be excluded, said: “ ‘It appears to this Court that the so-called marital deduction is in fact an exclusion. The property, or value thereof, set aside to the widow is not property subject to the Federal Estate Tax as a part of tire estate of the testator. It is included in the tax return only for the purpose of calculating the widow’s one-half interest (for estate taxes purposes) in the jointly owned property, and will be subject to taxation on the widow’s estate at' her death. “ ‘Thus the marital deduction is distinguished from the estate deduction or exemption of $60,000 since the latter is included in the taxable property, although no tax is levied on said $60,000. “ ‘Therefore, the words of the Will “taxes which will be assessed against my estate” necessarily excludes tire marital deduction since the same is not taxable property of the estate of Harry P. Rooney, deceased.’” (p. 201-202.) This court, on appeal, affirmed the lower court stating the effect of its ruling was to prorate federal estate tax liability among the beneficiaries in the ratio of the amount of property subject to tax received by each to the total amount of property of the estate subject to tax. Implicit in the decision is recognition of the principle that the marital deduction neither generates nor contributes anything to the tax liability of the estate — the tax impact on property passing by the deduction being postponed until death of the surviving spouse. While Rooney involved a testate estate and consequently, K. S. A. 59-502 did not come into play, we believe this court sought to apportion the federal estate tax in such manner as to give full effect to the marital deduction and accomplish the result made possible by Congress. The testator’s direction that each beneficiary pay his “proportionate share” of taxes left for determination as a matter of law the respective amount to be paid by each beneficiary. In this respect, the direction of the will was equivalent to a situation where the decedent dies intestate. Not withstanding the apparent breadth of the word “taxes” found in K. S. A. 59-502, we are of the opinion the same equitable considerations underlying our decision in Rooney must be recognized in the case of intestacy. The purpose of Congress in providing for the marital deduction was to equalize as nearly as possible estate and gift tax liability between community-property and common-law states. The only way such equality may be accomplished is for the surviving spouse to be relieved from payment of any portion of the federal estate tax except on property received by her which con tributes to or causes a part of the tax. Congress left it to the various states to determine whether each would take full advantage of the federal law and free the surviving spouse from the burden of the estate tax on property received by her which did not contribute to any part of the tax. When K. S. A. 59-502 was enacted in 1939, the tax advantage of the marital deduction did not exist. Consequently, the legislature could not have had in mind the benefits to be derived by taxpayers from such an enactment. The fact that the lawmakers have not amended K. S. A. 59-502 by the enactment of a specific apportionment statute leaving intact the marital deduction of the surviving spouse, should not preclude this court from applying equitable principles as we did in Rooney in order to give effect to the intent of Congress. We cannot attribute legislative inaction in this instance as an indication that taxpayers of this state were intended to be deprived of the benefits of the marital deduction amendment. The United States District Court for the district of Kansas, in First National Bank of Topeka, Kan. v. United States, 233 F. Supp. 19, 1964, came to grips with this precise question in an intestate estate and concluded that K. S. A. 59-502 should not be read to defeat the purpose of Congress. Recognizing that our decision in Rooney was persuasive on the point, the Federal District Court held the widow was entitled to take her share unencumbered by any burden of the federal estate tax. In support of the view that a widow who renounces the will of her husband is entitled to her statutory share without deduction for the portion of the tax to which the estate receives the benefit of the marital deduction, the court, in Lincoln Bank & Trust Co. v. Huber, 240 S. W. 2d 89 (Ky. 1951), without benefit of an apportionment statute, gave recognition to the doctrine of “equitable apportionment” and said: “It appears to us that the apparent purpose behind the enactment of the U. S. Code above was to equalize the estate tax in non-community property states, with that of community property states, and to prepare the way for elimination from the tax burden all those whose legacies or allotments do not create or add to the tax. “Under the authority of in re Peters above, we conclude that if the marital allotment is a deductible item before arriving at the net taxable estate, and since that item does not add to the tax, it can not be burdened with any portion of the federal estate tax. The surviving spouse, therefore, should receive her share undiminished by any federal estate tax.” (p. 91.) Likewise, in Pitts v. Hamrick, 228 F. 2d 486 (4th Cir. 1955), which involved an intestate estate, the circuit court affirmed the action of a South Carolina probate court holding that the widow was entitled to receive her share of the estate undiminished by any portion of the federal estate tax. In the opinion it was stated: “. . . Where the estate is to receive the benefit of the deduction of the widow’s share from the gross estate in order that that share may be relieved of the burden of the estate tax, as Congress intended, it would be unfair and unjust to require her share to bear any portion of that tax; and we find nothing in the law of South Carolina which requires such a result or which would prevent the court from applying equitable principles of apportionment to relieve the share of the widow of this unfair and unjust burden. “It is inconceivable here that any part of the estate tax should be attributed to the share of the widow, where the purpose of Congress in allowing the marital deduction was to free the interest of the surviving spouse from the burden of that tax and where the estate receives the benefit of the deduction because of that interest.” (p. 490.) (Emphasis added.) The Supreme Court of Missouri, in Hammond v. Wheeler, supra, was called on to construe a statute providing that a widow who elects to take against the will receives one-half of the real and personal estate subject to payment of her husband’s debts. After determining the word “debts” was not intended to include federal estate taxes, the court gave consideration to the fact that the legislature had not enacted an apportionment statute. The basic principle of equitable apportionment was applied in this language: “. . . [I]nasmuch as it seems to us to be inequitable and grossly unjust to require a surviving spouse to pay a portion of the federal estate tax on the deceased spouse’s estate solely by reason of the fact that the surviving spouse receives a statutory share of the estate which is not taxed and the receipt of which share does not cause or contribute to cause any part of the tax, we are of the opinion in this case that the renouncing widow’s share of her deceased husband’s estate should be received by her undiminished by any charge for federal estate tax except by that part of the federal estate tax allocable to that portion of her deceased husband’s property received by her which formed part of his taxable estate.” (p. 893.) In resolving the question before us, we are fully cognizant that the courts of the various states are not in agreement. Notable among those relied on by appellant are Trust Co. v. Green., 236 N. C. 654, 73 S. E. 2d 879; Will of Uihlein, 264 Wis. 362, 59 N. W. 2d 641; and In re Glover’s Estate, 45 Haw. 569, 371 P. 2d 361. In each of these cases it was held the widow’s statutory share was to be computed after payment of the federal estate tax and without allowance or benefit to the widow for any reduction in the tax resulting from the marital deduction. The Hawaii court, in an exhaustive opinion containing most, if not all of the authorities on both sides of the issue, made the apt observation that the divergent holdings result from the difference in attitude taken by the respective courts regarding the part the marital deduction provisions of the federal law play in controlling the widow’s distributive share under state law. We hold that the statutory share distributable to the widow as a result of her election to take under the law and against the will of her deceased husband, to the extent that such share qualifies for the marital deduction under the provisions of the Internal Revenue Code, is not to be charged with or reduced by any part of the federal estate tax imposed on the husband’s estate. The judgment is affirmed.	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The opinion of the court was delivered by Kaul, J.: Defendant-appellant, Hahner-Forman-Cale, Inc., appeals from a judgment recovered by plaintiff, Newton Ballhorst, for personal injuries caused by the collapse of a haydite block wall being constructed by defendant. Plaintiff had been awarded workmen’s compensation. He brought this action for his benefit and for that of his employer, Whitesell Lumber Company, and its workmen’s compensation carrier, Employees Mutual Insurance Company, as their interests appear under the assignment provisions of K. S. A. 1970 Supp. 44-504. In his petition plaintiff alleged that the wall collapsed due to the negligence of defendant in not properly constructing and bracing it. In its answer, defendant denied the allegations of plaintiff and affirmatively set forth defenses of contributory negligence, estoppel, assumption of risk, act of God and that plaintiff was not the real party in interest. Following the filing of interrogatories answered by plaintiff, a pretrial conference was had in which the issues were defined. The case proceeded to trial to a jury which returned a verdict for plaintiff in the amount of $30,000.00. Defendant’s posttrial motions were overruled and this appeal followed. Defendant is a construction company and was engaged in constructing an extension to a building owed by Whitesell Lumber Company in Great Bend. On December 1, 1965, the construction was incomplete but the wall in question had been erected for approximately three weeks. It was necessary to brace the wall during contruction because gusty winds prevailing in the area could blow down this type of wall. On the morning in question some of the bracing had been removed to facilitate the installation of the floor by defendant’s workmen. There was a high wind with gusts up to forty miles per hour. Plaintiff was working for his employer Whitesell near the wall when it blew down and buried him. Plaintiff was knocked unconscious and was taken to the hospital. He suffered injuries, particularly to his back, which aggravated a preexisting condition. It was established that plaintiff has a functional impairment of forty to fifty percent, which could be improved only by surgical intervention. There was testimony that the surgery would cost in excess of $1,500.00 and would cause plaintiff to be off work from six months to a year. On appeal defendant specifies numerous points of error, which will be considered in the order presented. Defendant first claims the trial court abused its discretion in permitting plaintiff to amend the prayer of his amended petition to the sum of $129,535.00 from the previous amount of $59,960.32. Plaintiff’s motion to amend was presented at the close of all the evidence and immediately before the jury was instructed. There is no contention the jury was aware of the amendment. The record discloses that when the motion to amend was presented there was a discussion between the court and counsel for both parties. Defendant’s counsel was concerned that the increase in plaintiff’s prayer would exceed the limits of his client’s insurance coverage. At this point plaintiff’s counsel stipulated that if the judgment was in excess of $59,000.00, and was not within the policy limits of defendant’s insurance, the plaintiff would not enforce that part of the judgment in excess. The trial court then allowed the amendment, and after a short recess the trial proceeded. Defendant contends that even though the jury did not know about the amendment, the increased prayer and the instructions relative thereto tended to increase the amount of the verdict to the prejudice of defendant. Plaintiff says his medical testimony pertaining to permanent disability justified the increased prayer. Plaintiff further states that since the verdict was well within the amount of the original prayer there is no affirmative showing that the prayer had anything to do with the amount of the verdict. Plaintiff points out that the jury was instructed to grant damages strictly in accordance with the evidence and that there is no affirmative showing that the jury did otherwise. Plaintiff also argues that since the verdict was only half the amount of the original prayer, no prejudice could have possibly resulted to defendant. When the matter was again presented on defendant’s motion for a new trial, the court found that the evidence supported the amendment, that the amendment had never been mentioned to the jury and that defendant had not been prejudiced. While we do not approve the allowance of such an amendment to the prayer, under the circumstances shown to exist, as being the best practice, nevertheless, we cannot say the trial court’s action amounted to reversible error. A trial court was given broad discretionary powers as to the amendment of pleadings under G. S. 1949, 60-759. The powers were retained under the provisions of K. S. A. 60-215 [now 1970 Supp.]. See Gard, Code of Civil Procedure Annotated, § 60-215 “Advisory Committee Notes,” p. 79. The identical question was presented on appeal in Collins v. City Cab Co., 192 Kan. 394, 388 P. 2d 597, wherein plaintiff was allowed to increase the prayer before submission of the case to the jury. The jury’s verdict exceeded the amount of the original prayer, and defendant claimed abuse of discretion amounting to prejudicial error. We held: “Under the provisions of G. S. 1949, 60-759, as construed by many decisions of this court, a trial court is given broad discretionary powers as to the amendment of pleadings, and its action with respect thereto will not constitute reversible error unless it affirmatively appears the amendment allowed or denied is so material that it affects the substantial rights of the adverse party and constitutes a clear abuse of judicial discretion.” (Syl. ¶ 1.) Defendant’s next three specifications of error concern the admission into evidence of the deposition of Don Engel. Mr. Engel was general superintendent for defendant and was working on the job site in that capacity on December 1, 1965, the date of plaintiff s injury. Mr. Engel’s discovery deposition was taken on May 29, 1967. He died of a heart attack the next day and as a result was not afforded an opportunity to read the deposition or sign it. Counsel for defendant was present when Engel’s deposition was taken by plaintiff’s counsel. Defendant first contends the deposition was inadmissible because a diagram of the wall and bracing prepared by Mr. Engel, when he was giving his deposition, was missing. Defendant contends that since the diagram was missing he was deprived of his right to require the introduction of all of the deposition pursuant to the provisions of K. S. A. 60-226 (d) (4) which reads: “If only part of a deposition is offered in evidence by a party an adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts.” Defendant claims prejudice because Engel referred to the diagram in his testimony, describing the construction of the wall and the bracing in support thereof. Specifically, defendant claims that references by Engel to Brace No. 1 were meaningless without the diagram to show the relative position of Brace No. 1 on the wall and the nature of its construction. In his testimony Engel fully described the wall and bracing. The wall was a part of an extension to one of the lumber yard buildings. It was constructed of twelve inch haydite blocks and was approximately forty feet long and sixteen to seventeen feet high. It was braced by 2 x 4 s which were bolted onto the wall and connected to blocks bolted into the floor. He further testified that the wind was gusty dining the morning in question, and he decided that a higher brace should be added at the west end of the wall. With reference to Brace No. 1, Engel testified it had been removed to facilitate laying a slab (floor) in the area; that he could have worked around the brace rather than remove it, but such a course would have slowed down the work. Engel further testified: “Q. Okay. Now, the reason Brace No. 1 was taken down is that you felt by the time a gusty wind would come up that it would give you time to properly brace it again? “A. Yes, we would put it back up again. “Q. Okay; what happened here is that you didn’t get it up soon enough? “A. This is right. "Q. And you could have gotten it up soon enough but it just was one of those things that wasn’t done? “A. That is right.” On cross-examination, Engel indicated that since the wall was “completely taken over” by the wind, whether the No. 1 brace had been replaced or not would have made no difference. The significance of the No. 1 brace as evidence was the fact that it had been removed and had not been replaced when the wall fell. We believe Engel’s testimony was sufficiently clear without the diagram. There was other testimony by Chester B. Cale, president of defendant, and by the plaintiff to the effect that the wall was insufficiently braced to withstand gusty winds. In other words, there was ample evidence, other than the testimony of Engel, to establish that the wall was insufficiently braced under the wind conditions shown to exist. Under the circumstances admission of Engel’s deposition, despite the missing diagram, cannot be said to amount to prejudicial error. Defendant further claims error in that the deposition contained leading and suggestive questions, which were specifically objected to by defendant’s counsel. Prior to reading the deposition to the jury, the trial court carefully considered the questions objected to by defendant and heard the arguments of counsel in connection therewith. A number of objections were sustained. The review of the deposition, objections and arguments of counsel, and rulings of the court consume sixteen pages of the record on appeal. Much of the testimony of Engel was considered on a line by line basis by the trial court and counsel. We have examined the court’s rulings with' reference to the objections lodged, and we find no abuse of discretion that rises to the level of reversible error. When the deposition was introduced at the trial, defendant made a general objection on the ground that plaintiff should not have been permitted to interrogate Engel by the use of leading questions, since it was not established that Engel was an officer or managing agent of defendant within the contemplation of K. S. A. 60-243 (b), now 1970 Supp. The trial court found that Engel’s position was one of supervisory management and fell within the scope of managing agent. This court has not been called upon to answer inquiry as to who is a managing agent, as the term is used in 60-243 (b). Subsection (b) of our statute is the same as subsection (b) of parallel Rule 43 of the Federal Rules of Civil Procedure, 28 U. S. C. A. (Gard, Kansas Code of Civil Procedure Annotated, § 60-243, “Advisory Committee Notes,” p. 211). Federal courts generally have dealt with the subject on an ad hoc basis depending on the facts of each case. (1 A. L. R. Fed., Anno., p. 693.) In Skogen v. Dow Chemical Company (8th Cir. 1967), 375 F. 2d 692, the court stated that an individual is a managing agent of a corporation if: “. . . (1) His interests in the litigation are identified with his principal, and (2) He acts with superior authority and general autonomy, being invested with broad powers to exercise his discretion with regard to the subject matter of the litigation. . . .” (p. 701.) In dealing with the phrase “managing agent” with respect to service of process on a foreign corporation under G. S. 1949, 60-2524 (K. S. A. 60-304 [f], now 1970 Supp.), this court in Freeman v. Keltner, 175 Kan. 37, 259 P. 2d 228, noted the difficulty in formulating a general rule as to what constitutes a managing agent and held that it was necessary to determine each case on its particular facts. (See, also, Sage v. Oil Country Specialties Mfg. Co., 138 Kan. 501, 27 P. 2d 542; and Betterment Co. v. Reeves, 73 Kan. 107, 84 Pac. 560.) The reasoning expressed in Freeman is generally in line with federal decisions dealing with Federal Rule 43 (b). Although Freeman dealt with the phrase as used in a different statute, we believe what was said therein may be appropriately applied to 60-243 (b), supra. In the instant case Engel described himself as general superintendent. His testimony indicated that he was clothed with full and exclusive authority concerning the construction and bracing of the wall in question. Chester B. Cale was president of defendant and the only other officer of defendant who was called as a witness. He testified that he had not even observed the building site until after the wall had blown down. His testimony was further indication that Engel had complete supervisory authority over the construction and bracing of the wall, which is the subject matter of this litigation. Under the facts of the instant case, we believe the trial court was fully justified in determining Engel to be a “managing agent” of defendant. Finally defendant claims error in the admission of the deposition, because Engel died before he had an opportunity to read or sign it, since such steps were not waived by Engel or defendant. The certificate of the shorthand reporter, who took the deposition, was found to be in order and the accuracy of his transcription was not challenged. K. S. A. 60-226 (d) (3) provides inter alia that the deposition of a witness may be used for any purpose if the court finds that the witness is dead. K. S. A. 60-230 (e) (amended, now 1970 Supp.) provides in substance that a deposition unsigned for any of the reasons listed therein: “. . . may then be used as fully as though signed, unless on a motion to suppress under section 60-232 (d) the judge holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.” We believe the import of the statutes mentioned gives a trial judge broad discretion in the admission of a deposition under conditions such as existing here. Moreover, the tenor of the statutes indicates the applicability of the rule that favors admissibility of evidence in doubtful cases. This was the view taken with respect to Federal Rule 30 (e) of the Federal Rules of Civil Procedure (28 U. S. C. A.) in Paul v. American Surety Company of New York, 18 F. R. D. 68, wherein a motion to suppress the deposition of a witness who died before signing it was denied. Federal Rule 30 (e) is the same as our 60-230 (e), supra; Gard, Kansas Code of Civil Procedure Annotated, § 60-230 (e), “Advisory Committee Notes,” p. 155. We find no prejudicial error in the admission of tibe Engel deposition on any of the grounds urged. Defendant next complains the trial court erred in admitting into evidence reports of the United States Weather Bureau located at the Great Bend Airport, about three miles from the Whitesell Lumber Yard. Specifically, the report in question was entitled “Surface Weather Observations” and reflected on the hour readings of wind direction and velocities on December 1, 1965. The authenticity of the report was not questioned. The court instructed the jury concerning the location of the airport in relation to the lumber yard. We find no error in the admission of the weather report. It appears to meet the requirements of an exception to the hearsay rule as an official record under the provisions of K. S. A. 60-460 (o) and also appears to qualify as a publication of occupational interest under 60-460 (bb). In his commentary, concerning the latter subsection, Judge Gard specifically mentions “weather reports” as one of the more common variety of reports, which would fall within the hearsay exception contemplated by the rule. (Gard, Kansas Code of Civil Procedure Annotated, § 60-460 [bb], “Author’s Commentary,” p. 498.) Defendant contends the trial court erred in refusing to instruct the jury on assumption of risk when there was evidence showing that plaintiff was aware of the danger of the wall and did nothing to protect himself. Plaintiff testified that he was aware some bracing had been removed the previous day and that he had so informed his employer Whitesell. On the day the wall fell down, however, plaintiff saw employees working at the east end of the wall and assumed they were putting up braces. Whether plaintiff thought the wall was dangerous at the time it fell is not clearly shown. Be that as it may, we believe the trial court fully instructed on the issues framed by the pleadings and evidence adduced in this case. Instruction No. 1, which was objected to, reads as follows: “The plaintiff, Newton Ballhorst, claims that he was injured and sustained damages as a result of the negligence of the defendant, Hahner-Foreman-Cale, Inc., in one or more of the following respects: “A. Improper construction of the wall in question. “B. Improper bracing of the wall in question. “C. In failing to properly inspect and test the sufficiency of the wall. “D. In faffing to warn the plaintiff of the type of construction involved when the defendant knew or should have known of the insufficiency of this type of construction to withstand gusty winds. “E. Plaintiff further relies on the legal doctrine known as res ipsa loquitur, which simply means the thing speaks for itself in that occurrences such as involved in this case do not happen without a negligent act or acts. “The plaintiff claims one or more of the foregoing as the direct cause of his injury and damage. “The burden of proof is upon the plaintiff to prove that the defendant was negligent in one or more of the particulars alleged and that the defendant’s negligence was a direct cause of injury to the plaintiff’s person. “The defendant admits that the wall in question was constructed by the defendant, Hahner-Foreman-Cale, Inc., and generally deny any negligence on the part of the defendant as set out in the plaintiff’s claim above. More specifically: The defendant denies there was any negligence on its part which was the direct cause of the injuries claimed; and that the plaintiff was injured or damaged to the extent claimed. “The defendant has asserted the following defenses: “A. That the plaintiff was contributorily negligent, and that the plaintiff failed to keep a proper lookout for his own protection. “B. That the plaintiff failed to take the necessary precaution for his own safety after he knew or should have known of the gusty wind conditions existing. “The defendant has the burden of the alleged defense, contributory negligence as hereinbefore set out. “If you find from all the evidence that the plaintiff has met the burden of proof on the issues concerning which the burden of proof rested upon him and that the defendant has failed to meet the burden of proof on any of the affirmative defenses, you should return a verdict in favor of the plaintiff. “If on the other hand you find that the plaintiff has failed to meet the burden of proof on any of the issues concerning which the burden rested upon him or that the defendant has met the burden of proof on any of the affirmative defenses, then, you should return a verdict in favor of the defendant.” In Instructions Nos. 5 and 6 the court defined negligence and contributory negligence following PIK 3.01 and 4.01, respectively. This case is a negligence action not against an employer, but against a third party. The specific charges of both parties of negligence on the part of the other are set out in the instructions. If plaintiff intentionally exposed himself to a known danger in a manner in which this jury found a reasonable man would not then the jury was clearly authorized to find such conduct to be negligence on the part of the plaintiff. While the defenses of assumption of risk and contributory negligence have been said to be somewhat akin, this court has always recognized a distinction. In Kleppe v. Prawl, 181 Kan. 590, 313 P. 2d 227, 63 A. L. R. 2d 175, it was pointed out that assumption of risk arises through implied contract of assuming the risk of a known danger, while contributory negligence arises out of a tort; the essence being carelessness. It also noted that the assertion of assumption of risk as a defense denied defendant’s negligence, while contributory negligence admits defendant’s negligence, but denies the proximate cause (citing 65 C. J. S., Negligence, § 117, p. 709, now 65A C. J. S., Negligence § 117, p. 29.) The distinctions noted in Kleppe have since been recognized in Taylor v. Hostetler, 186 Kan. 788, 352 P. 2d 1042; Blackmore v. Auer, 187 Kan. 434, 357 P. 2d 765; and Shufelberger v. Worden, 189 Kan. 379, 369 P. 2d 382. The latter case was a negligence action in which plaintiff sought to recover damages for personal injuries sustained in helping defendant move a piano. As in the instant case, the trial court instructed on negligence and contributory negligence, but refused to submit assumption of risk when requested by defendant. The issue was presented on appeal and we had this to say: “Without further detailing the testimony we are of the opinion the record before us negates the presence of assumption of risk. In the instant case the defendant failed to show that there was any employer-employee relationship or any contractual relationship, express or implied; nor can it be found in the record that plaintiff received any benefit from the transaction, and in order for assumption of risk to be a defense one or more of the aforementioned conditions must exist. Defense counsel cite no authority where the defense of assumption of risk has been applied in a tort action such as the instant case, and in our limited research we have failed to discover any such authority.” (p. 385.) Applying the foregoing rules to the instant case, we find no error in the trial court’s exclusion of an instruction on assumption of risk. Defendant next claims the trial court erred in instructing the jury on res ipsa loquitur. Defendant makes two contentions in this regard. It first asserts that one of the essential elements necessary to establish a prima facie case of negligence under the doctrine of res ipsa loquitur is sole and exclusive control of defendant. The principle is correctly stated but it lends no aid to defendant in this case. There was evidence, as defendant points out, that Whitesell furnished most of the material and some labor, but the manner in which the wall was constructed and the amount and nature of the bracing was exclusively in the control of defendant and there is no evidence to tire contrary. Defendant further argues that despite our holding in Hugo v. Manning, 201 Kan. 391, 441 P. 2d 145, plaintiff cannot rely on res ipsa loquitur, where he also pleads specific negligence. In Hugo we held that where res ipsa loquitur has been properly brought into a case it will not be removed by a mere prima facie showing of specific negligence, but under such circumstances the case should be submitted on both the theory of specific negligence and res ipsa loquitur. We further held that res ipsa loquitur should not be removed by proof of specific negligence unless the proof goes so far as to fully explain the cause of the injury by positive evidence revealing all of the facts and circumstances. In the instant case plaintiff testified as narrated: “. . . that the only thing he could remember when the wall went over was that he heard an explosion, and that he was taken to Central Kansas Medical Center following this occurrence.” There was testimony that the wall was inadequately braced, that a brace had been removed and not replaced, and that defendant’s employees were either replacing or constructing additional bracing at the east end of the wall, immediately before the collapse, but no witness for either plaintiff or defendant fully explained what happened when the wall collapsed. A number of different causes or inferences were thus left to the final determination of the jury. We think what was said in Hugo is applicable: "... A number of different causes or inferences may be thus left to the final determination of the triers of the facts. It is true that appellant here introduced evidence of specific acts of negligence. However, this was not the equivalent of establishing such allegations as true. It cannot be properly said that these specific acts had been established until the jury returned its verdict. Prior to that time, for all appellant could know, her attempt to establish specific acts or negligence by inferences. might be altogether unsuccessful. We think that in cases in which a plaintiff is entitled to rely on the doctrine of res ipsa loquitur, he should not be penalized by the loss of the presumption because he has been willing to go forward and do the best he can to prove specific acts of negligence. On the contrary he should be encouraged to give the court, the jury, and even the defendant the benefit of whatever facts, if any, his effort may develop toward revealing the specific causes of the mishap.” (p. 398.) The defendant has assigned numerous additional specifications of error which were not briefed nor argued. Nevertheless, we have examined the further questions raised in the light of the record and the trial court’s memorandum on defendant’s motion for a new trial in which most of the questions were considered. We find nothing of sufficient merit to warrant a reversal of the judgment rendered. The judgment is affirmed.	[ -12, 122, -7, -98, 26, 106, 42, 24, 89, -124, 53, 83, -115, -103, 12, 111, -73, 29, -63, 115, -35, -77, 23, -53, -58, -13, -77, -59, -80, 107, -12, -97, 72, 32, 10, -41, -30, -120, 69, 84, -50, 5, 26, -20, -39, 96, 56, 122, 52, 73, 49, -98, -5, 41, 60, -53, 9, 44, 75, 57, 64, -72, -120, 5, 95, 17, -95, 6, -104, 71, 88, 26, -112, -79, 8, -20, 115, -74, -122, 116, 99, -103, 4, 102, 103, 33, 29, -25, -24, -72, 47, -33, -115, -90, -111, 24, -69, 9, -98, -99, 120, 116, 22, 124, -19, 85, 95, 109, 3, -61, -14, -111, -49, 80, -108, -121, -53, -127, 19, 101, -50, -94, 94, 67, 115, -97, 11, -70 ]
The opinion of the court was delivered by Fromme, J.: This is an appeal by Cities Service Oil Company, owner and operator of gas leases in the Kansas Hugoton gas field, seeking to reverse a judgment of the district court which upheld the order of the State Corporation Commission of Kansas refusing to amend the basic proration order for the gas field. The basic proration order under attack was originally adopted by the commission in 1944 and production allowables for 3955 wells in this field have since been determined under an “adjusted deliver-ability formula” set forth in paragraph “L” of that basic order. This “adjusted deliverability formula” was recently discussed in Cities Service Oil Co. v. State Corporation Commission, 205 Kan. 655, 472 P. 2d 257. (See page 659.) The background material set forth in that case will be helpful in understanding the questions discussed here. In that case the applicant sought to have the commission amend the basic proration order by substituting what was there referred to as the “reserve index formula” for the “adjusted deliverability formula” to arrive at production allowables on all but minimum allowable wells. The “reserve index formula” was rejected by the commission and the commission s action was upheld on appeal by this court. The appellant in this proceeding (Cities Service) seeks to have the commission amend paragraph “L” of the basic proration order to provide for special well allowables by adding the following language: “. . . Provided further, that if the current allowable so determined [under the adjusted deliverability formula] for any well will not permit or enable such well to currently produce in proportion to other wells in the field and to ultimately produce the amount of gas underlying the acreage upon which it is located, such well may be granted a special allowable upon application by any interested owner and after notice and hearing upon an order of the Kansas Corporation Commission initiating an investigation on its own motion. . . .” When the hearing was held before the commission Cities Service and Skelly Oil Company stood in support of the application. Skelly Oil Company has not appealed. The five intervenors who appear here on appeal opposed the application. Much testimony was introduced before the commission on both sides. Cities Service obtained testimony from its regional engineer based largely upon his study of three gas wells being produced by Cities Service. These wells were referred to as the Rarbee “A”, the McWilliams “F” and the Mace “A” gas wells. The engineer explained his conclusions by means of graphs on which he had plotted three dotted lines to cover years 1958 through 1967 which showed production allowables for the three wells. The three lines of each graph depicted in cubic feet of gas (1) the actual total field production allowable for the years included in his study, (2) the production allowable actually assigned to the particular well and (3) the “rateable allowable” which was what the engineer determined to be the fair share of the well’s total field allowable. This “rateable allowable” assigned to each of the three wells was considerably above the allowable actually assigned by the commission. The “rateable allowable” in each case followed closely the contour of the upward trend of the total field allowable. From his testimony the commission was able to determine the method and the factors used by him in determining this “rateable allowable”. Much of the testimony of the intervenors challenged the method and factors used by the engineer in arriving at the “rateable allowable” for the three sample wells. The commission’s order denying the application covers seventeen pages of the record. The findings and conclusions of the commission pertinent to a discussion of the points on appeal are as follows: “Findings of Fact “2. Paragraph “L” of the Basic Proration Order, as amended, outlines the maimer in which individual well allowables shall be determined for any given proration period. Under its provisions a well will get either an adjusted deliverability allowable or a minimum allowable of 50 Mcf per day whichever is greater, there being no provision for any other type allowable. “3. Except for the minimum allowable amendment adopted in December of 1963, the adjusted deliverability formula has governed the allocation of allowables to the individual wells in the field since April of 1944. “6. Three Cities Service Oil Company wells were cited as examples, being the Barbee, the Mace and the McWilliams wells as illustrated in Exhibits 1, 2 and 3 demonstrating, according to the applicant, that the present formula is not permitting these wells to currently produce proportionately with other wells in the field thus evidencing a need for a special allowable. “7. Applicant’s Exhibits 1, 2 and 3 plot actual allowable curves and ratable allowable curves with considerable difference existing between the two curves over the years exhibited, said difference which the applicant contends constitutes the degree to which the present allocation formula restricts the well to currently produce its proportionate share of the field production. “8. The validity of the applicant’s exhibits 1, 2 and 3 depends on the probative value of the applicant’s ratable allowable curves. “9. In computing the ratable allowance curves, the total field and individual well reserves are used. To calculate such reserves, the pressure decline method to zero pounds abandonment pressure was used. Applicant contends that each well should be assigned allowables wherein it could currently produce proportionately and annually deplete its reserves at the same rate as the total field depletes its reserves. “10. Recoverable reserves rather than gas in place should be the standard against which to measure the fairness of an allowable allocation formula. Recoverable reserve determination in this field is made to an abandonment pressure of 25 pounds or more. The abandonment pressures in this field will vary from 25 pounds to 300 pounds depending on the characteristics of the individual well. “11. The Kansas statutes require that the correlative rights of “developed” leases be protected. “Undeveloped” leases have no correlative rights. The recoverable reserves of any gas unit are measured on the basis of its producing well. “12. The Barbee "A” No. 2 well is plagued with severe water problems and has a current deliverability of only 21 M. c. f. Since the present allocation formula is currently assigning the well more allowable than it can produce, there has been no unfair allowable allocation treatment of the gas unit. Testimony about a replacement well is speculation. “13. On the face of tilings the Mace well with a current deliverability of 1541 M. c. f. and the McWilliams well with a current deliverability of 3376 M. c. f. appear to be getting the allowables to which they are entitled under the field’s present allocation formula. “14. An accurate calculation of the remaining recoverable reserves is essential to die compilation of creditable ratable allowable curves, the applicant having computed its reserves to zero abandonment pressure which is economically unfeasible in the Hugoton Field. This fact weakens the probative value of the special allowable to be assigned a given well. “15. In computing remaining recoverable reserves it is necessary to consider a well’s drainage area and the fact that this may be different from its attributed acreage. It is also necessary to relate the individual well's rate of depletion to those of its offsets. It does not appear that applicant considered these factors in his computation of the reserves used to compute its ratable allowable curves. This omission also weakens the probative value of the ratable allowable curves. “16. In computing the ratable allowable curves, applicant paid little attention to the over or under production status of the total field or of the example wells. Under existing rules this status can have a considerable bearing on the allowable that a well is entitled to at any given time. Such status was different in each case during the period of years exhibited. This omission further weakened the probative value of applicant’s ratable allowable curves. “20. Applicant did not know how many wells would require or receive a special allowable if the application was granted, no study having been made on this question. “21. The application shows that if the “suggested” amendment was adopted the total of the special allowables and the total of the minimum allowables would be deducted from the monthly field market demand before the deliver-ability allowables would be allocated. There is nothing in the record to indicate how much the deliverability allowables would be reduced by such a process— in any one month or in any one year. Nor is there testimony stating that after such a reduction, the special allowable wells, the minimum allowable wells and the deliverability allowable wells would all be “currently producing proportionately.” “On the other hand there is testimony about the unfairness of the situation under assumed conditions and the unratability of the allowables which could result. “22. The application shows that if the “suggested” amendment was adopted there would be no guidelines to assist the Commission in determining the size of the special allowable to be assigned a given well. “23. If applicant’s proposal that each special allowable well be permitted to annually produce at the field rate of depletion was adopted, calculations of reserves and of rates of depletion would be required periodically for the field and each well. “24. If applicant’s proposal that each special allowable well be permitted to annually produce at the field’s rate of depletion were adopted, the over or under produced status of the special allowable wells would have no effect on its assigned allowable. Under such a system the well which was 14 times January underproduced and the well which was 4 times January overproduced would both get the same special allowable. “25. The over and under produced status of the approximately 4,000 wells in the field are now in material imbalance. Cities Service Gas Company, with 1,449 connections, is 14 times January underproduced while Northern Natural Gas Company, with 1,130 connections, is more than 3 times January overproduced. The remainder of the field is somewhere in between. The ten purchasers in the field have geographically separated markets and differing demands for gas from the field at any one time. Under the Basic Proration Order and Current Commission Orders wide tolerances in the flexibility of operation are permitted. In this situation “current” means “within a period of several years” and the allowable adjustments which the present formula makes within such a time comply with the statutory mandate that the Commission permit each developed lease to “currently produce proportionately.” “26. The adjusted deliverability formula with its 80% pressure control factor has kept the wellhead shut-in pressures of the approximately 4,000 wells in the field declining reasonably close together. This fact has helped minimize the cognizable uncompensated drainage between offsetting wells. “27. There has been no showing of cognizable uncompensated drainage away from the three Cities Service example wells. “Conclusions of Law “1. Except for the assignment of minimum allowables, the adjusted deliverability formula has governed the production of gas from the Kansas Hugoton Field for more than 24 years. Its 80% pressure control factor and periodic adjustment of allowables have kept the wellhead shut-in pressures of the approximately 4,000 wells declining reasonably close together. This fact has helped minimize the occurrence of cognizable -uncompensated drainage between developed leases. The minimum allowable provision of the Basic Proration Order assures the assignment of a sufficient allowable to permit the economic operation of those wells which can produce it. A continued use of the present allowable allocation formula will permit each well to ultimately produce the recoverable reserves underlying its attributed acreage and to currently produce proportionately with the other wells in the field without cognizable, uncompensated drainage. “2. There are at least two things wrong with applicant’s ratable allowable curves. “First, the entire premise is incorrect. Under existing rules and most circumstances there is no reason why the individual well’s annual rate of depletion should coincide with that of tire total field. On the contrary, there are many reasons why tire two rates of depletion shouldn’t coincide. “Second, assuming for the sake of argument that the premise was correct and the two rates of depletion should be identical, — accurate remaining recoverable reserve determinations are essential to a fair calculation of the respective rates of depletion. The reserves which applicant used for the computation of his ratable allowable curves are inaccurate. “Under existing rules, with the flexibility of operation tolerances up to 15 times January for underproduction and 6 times January for overproduction, and with substantial under and overproduction imbalance now existing among the 4,000 wells in the field, coupled with the field’s unproduced reinstated cancelled underage situation with an allocation formula which periodically adjusts allowables to compensate for production imbalance it would be inequitable to hold annual well depletion rates to that of the total field. “Under present rules a seriously underproduced well is and should be permitted to deplete its reserves faster than does the total field — so that it can begin to catch up. The contrary is true for a severely overproduced well. “Moreover, applicant made reserve determinations which (1) went to zero pounds abandonment pressure, (2) ignored the differences in the over and underproduction — of the individual wells — of their offsets — and of the total field, (3) assumed that each well’s drainage area coincides with its attributed acreage, and (4) ignored the development histories of the studied well and of its offsets. We must conclude that the factors used to compute applicant’s ratable allowable curves are unreliable. “For the reasons above stated we conclude that applicant’s ratable allowable curves have no probative value. “3. The applicant has not shown a need to amend the Basic Proration Order so as to provide for the assignment of special allowables. “4. The application should be denied.” The position of Cities Service is that the basic proration order for the Hugoton gas field is unlawful in that it fails to comply with the requirements of K. S. A. 55-703. The statute authorizes the commission to restrict the rate of gas production whenever the market demand from a field is less than the productive capacity of the wells located therein — a situation which admittedly has existed in the Hugoton gas field over an extended period of time. However, this statutory restriction placed upon the producers prevents the free operation of the rule of capture and necessitates a guarantee of protections provided in the statute. The protections provided in the statute read: “. . . [T]hen any person, firm or corporation having the right to produce natural gas therefrom, may produce only such portion of all natural gas that may be currently produced without waste and to satisfy the market demands, as will permit each developed lease to ultimately produce approximately the amount of gas underlying such developed lease and currently produce proportionately with other developed leases in said common source of supply without uncompensated cognizable drainage between separately-owned developed leases or parts thereof.” (K. S. A. 55-703) Cities Service contends the basic proration order for the Hugoton gas field deprives it of the following protections set forth in this statute, (1) the right to produce currently and proportionately with other developed leases in the field and (2) the right to ultimately produce approximately the amount of gas underlying its leases. The legislature in authorizing the commission to prorate production allowables in the field specified certain factors which should be given consideration. The statute further provides: ". . . In promulgating rules, regulations and formulas, to attain such results the commission shall give equitable consideration to acreage, pressure, open flow, porosity, permebility [sic] and thickness of pay, and such other factors, conditions and circumstances as may exist in the common source of supply under consideration at the time, as may be pertinent: . . .” (K.S.A. 55-703) The strength of the testimony on which Cities Service based its claim, that the basic proration order of the commission was unlawful, was dependent upon the method and factors used by the engineer in arriving at the “rateable allowables” which he assigned to the three sample wells. Failure to consider the statutory and equitable factors which pertain to the Hugoton gas field as a common source of supply necessarily weakens the probative value of the “rateable allowables” assigned by the witness to the sample wells. The evidence in the record adequately supports the commissions findings that the method used by Cities Service to arrive at the sample “rateable allowables” failed to consider several important factors which should be reflected in any proration formula. Those overlooked factors were the variances in abandonment pressure in the field, the differing drainage area of the wells, the production imbalance of the wells and the development histories of the studied well and its offsets. (See commission s findings of fact and conclusions of law set forth herein.) The history of litigation in this state over this basic proration order for the Hugoton gas field has been long and colorful. It spans a period of over thirty years. In Hayward v. State Corporation Comm., 151 Kan. 1008, 101 P. 2d 1041, it was determined that the basic order was merely a formula to arrive at the allowables and not self-executing. The commission alone has the authority and the responsibility not only to promulgate the order but also to perform those administrative acts necessary to arrive at the schedule of allowables. Until a schedule is set up, the courts have no right to interfere by injunction with those administrative functions of the commission. In Aylward Production Corp. v. Corporation Commission, 162 Kan. 428, 176 P. 2d 861, it was determined the commission had the power to amend the basic proration order and to fix a minimum allowable. The basic proration order was again examined in White Eagle Oil Co. v. State Corporation Comm., 168 Kan. 548, 214 P. 2d 337, and the question of unitizing noncontiguous acreage was considered. In Northern Natural Gas Co. v. Republic Natural Gas Co., 172 Kan. 450, 241 P. 2d 708, the provisions of the basic proration order were examined and the restrictions against over production were enforced. In Republic Natural Gas Co. v. State Corporation Commission, 173 Kan. 172, 244 P. 2d 1196 an order of the commission cancelling under produced production allowables was held to be in compliance with the provisions of the statute and the basic order. In Stevens v. State Corporation Commission, 185 Kan. 190, 341 P. 2d 1021, it was held the provisions of the general order controlled the production and conservation of gas from the Hugoton field. It was further held to be unlawful and unreasonable for the commission to issue special orders in individual cases contrary to the provisions of the general order without amendment thereof. The subject of production allowables in the Hugoton gas field was explored in Colorado Interstate Gas Co. v. State Corporation Comm., 192 Kan. 1, 386 P. 2d 266. Production allowables for portions of 1958 and 1959, which had been set by the commission using the “adjusted deliverability” formula were approved. It was determined that the orders setting the allowables did not violate the provisions of G. S. 1961 Supp. (now K. S. A.) 55-703, or the commission’s basic order. In the companion case of Colorado Interstate Gas Co. v. State Corporation Comm., 192 Kan. 29, 386 P. 2d 288, it was held that the authority granted by G. S. 1961 Supp. (now K. S. A.) 55-703 is not an unconstitutional delegation of legislative authority, and is not in violation of the due process and equal protection clauses of the federal and state constitutions. In Cities Service Oil Co. v. State Corporation Commission, supra, after examining the basic proration order which included the "adjusted deliverability formula”, we said: “The commission’s order is substantially supported by evidence. The commission has taken into account the various factors it is required to consider under 55-703 and we think its order represents a reasonable and practical effort to handle a difficult problem in compliance with the legislative mandate.” (205 Kan. 655 at p. 669.) In the present case there was testimony that production from each of the three sample wells was affected by individual characteristics or problems which had arisen by reason of their location in the field or the size of casing used in bringing the wells into production. One well was a minimum allowable well located near the perimeter of the field, producing from a narrow pay zone which could not be satisfactorily fractured because of its proximity to water. The other two wells had been equipped with 5K inch casing. One could not be fractured and the other had been fractured with only limited results. In Cities Service Oil Co. v. State Corporation Commission, supra, we pointed out: “. . . The commission can do nothing to change the natural excellence of any particular tract in the field; it can only provide each a fair opportunity to produce its share.” (205 Kan. 655 at p. 667.) In Colorado Interstate Gas Co. v. State Corporation Comm., supra it was said: “The Commission cannot require or guarantee that each well owner will produce and sell his entire allowable. The Commission is required to afford each owner the ‘right or opportunity’ to produce his share. As far as the Commission’s duty under the basic order goes, it is fulfilled when each owner is legally ‘free to produce’ and not denied the ‘right or opportunity’ to produce his allowable.” (192 Kan. 1 at p. 25.) The intervenors strenuously resist the amendment proposed by Cities Service on the ground no guidelines are provided in the amendment to limit the extent and scope of future applications for special allowables. They argue the amendment would result in a myriad of applications to set special allowables for all wells in the Hugoton gas field. The effect of such an amendment would be unpredictable. The commission saw merit in this argument. Cities Service presents the argument that the denial of its application to amend the basic proration order deprives it of due process of law. It reasons that until the basic proration order is amended to permit special allowables it has no adequate remedy at law to obtain special allowables on wells which have not been permitted to currently produce in proportion to other wells in the field and to ultimately produce the amount of gas underlying the acreage. The argument is not convincing for two reasons. In the first place it assumes that the “deliverability formula” in the basic proration order does not conform to K. S. A. 55-703. We have only to look at the previous cases decided by this court, including the most recent case of Cities Service Oil Co. v. State Corporation Commission, supra, to see that this court, under varying facts and circumstances, has repeatedly approved the basic order as complying with the statute. Therefore, the burden in this case rested upon the applicant. The commission is not required to amend the basic order to cover hypothetical situations which might arise in the future. It is not a violation of due process to refuse to amend the order until an actual need for the amendment is proven and reasonable guidelines to define the scope of the change are established. In the second place Cities Service has again been given every opportunity to present its case in an effort to show a need for changing the basic order and it will continue to have that right in the future. Its difficulty is not because of lack of a remedy. It has failed because of lack of proof. Due process does not require that a litigant win but only requires that it be given ample opportunity to prove its case. The right of the owner or lessee of land in and to the oil and gas beneath the surface is not an absolute one. (Republic National Gas Co. v. State Corporation Commission, supra, State Corporation Commission of Kansas v. Wall, 113 F. 2d 877 [1940]) The limitations placed by proration statutes upon the right of the owner and lessee of land to produce oil and gas beneath the surface do not per se deprive the owner or lessee of property without due process of law. (Colorado Interstate Gas Co. v. State Corporation Comm., supra.) Although we have not specifically addressed ourselves to each of the thirteen points relied on by the appellant we have considered them in the light of the record before us. After a careful review of the action of the commission in refusing to amend the basic proration order for the Kansas Hugoton gas field we hold the trial court properly affirmed the order of the commission denying appellant’s application. The judgment is affirmed.	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The opinion of the court was delivered by Foth, C.: This is an action by plaintiff-appellant, a workmen’s compensation insurance carrier, to recoup compensation paid by it to an injured workman for injuries caused by the alleged negligence of a third party, the defendant-appellee. Appellant’s capacity to maintain the action is based on the statutory assignment of the injured workman’s cause of action to his employer wrought by K. S. A. 44-504 and the insurer’s right of subrogation under K. S. A. 44-532. The workman failed to bring suit within the time allowed by 44-504, and his employer had been likewise inactive until this action was brought just five days before being barred by the statute of limitations. See Wise v. Morgan-Mack Motor Co., 173 Kan. 372, 246 P. 2d 308. The amendments to those two sections found in Laws 1967, ch. 280, effective after this action was commenced, do not alter appellant’s status, and its right to stand in the shoes of the injured workman is not challenged. Liability of the appellee was predicated on its status as lessor of a truck terminal warehouse to the workman s employer. The injury was caused by a defect in the leased premises which was claimed to exist as the result of appellee’s breach of a covenant to repair. The case was tried to the court on a stipulation of facts. From a judgment denying recovery plaintiff has appealed. Those facts relevant to our disposition of this appeal are set out in the following portion of the parties’ stipulation below: “3. On or about the 15th day of March, 1965, Charles R. Sharitz, while employed by Texas Oklahoma Express, Inc., and while engaged in its business and in the course of his employment, suffered personal injury which was compensable under the Kansas Workmen’s Compensation Act. The Transport Insurance Company, a corporation, was the Workmen’s Compensation Insurance Carrier for Texas Oklahoma Express, Inc., and under its contract of insurance with the insured, furnished Workmen’s Compensation to Charles R. Sharitz in the form of compensation for temporary total disability and medical costs in the total sum of Three Thousand Eighteen Dollars and 41/100 ($3,018.41). Charles R. Sharitz did not commence an action for his injury against the defendants herein or anyone else within the time provided by statute, and likewise, Texas Oklahoma Express, Inc., did not commence any action for the injury to Charles R. Sharitz within the time provided by statute and, as a result thereof and by operation of law, the plaintiff, Transport Insurance Company, is entitled to bring this action in its own name and in its own behalf and for Charles R. Sharitz and Texas Oklahoma Express, Inc., for their benefit as their interests may appear. The Transport Insurance Company has an interest in its own right in this action in the amount of Three Thousand Eighteen Dollars and 41/100 ($,018.41) [sic] and no more; said amount having been paid by the plaintiff as aforesaid to Charles R. Sharitz for the damages sustained by him as alleged above. The plaintiff, although not required or requested, originally filed this action on behalf of Charles R. Sharitz as well as itself, but has now abandoned said action as far as the claim of Sharitz for damages is concerned. “4. That Texas Oklahoma Express, Inc., occupied the premises where the accident occurred at One Woodsweather Road, Kansas City, Wyandotte County, Kansas, on the date of the accident as the lease tenant of the Baltimore Avenue Realty Company; that all of the obligations of said landlord and tenant relationship between Baltimore Avenue Realty Company and Texas Oklahoma Express, Inc,, are delineated, set out, defined and contained in a certain lease dated August 6, 1952, executed by the defendant, E. G. Huston, as lessor, and Arkansas Motor Freight Lines, Inc., as lessee ... [a copy of which was attached]. “5. That the original lessor, E. G. Huston, had conveyed said property and assigned said lease to the defendant, Baltimore Avenue Realty Company, and the Baltimore Avenue Realty Company was in fact the lessor under said lease of the property at the time of the accident; likewise, through a series of transfers, the Texas Oklahoma Express, Inc., had succeeded to the rights and obligations of the original lessee, Arkansas Motor Freight Lines, Inc., so that on the date of the accident the lessor and lessee of said lease were respectively the defendant, Baltimore Avenue Realty Company and the plaintiff’s insured, Texas Oklahoma Express, Inc. “6. The defendant, Charles F. Curry Real Estate Company, is not a party to the aforesaid lease agreement, but is an agent for the owner of the property, to-wit: Baltimore Avenue Realty Company. The obligation of the Charles F. Curry Real Estate Company to the said Baltimore Avenue Realty Company was to collect rents, keep said premises insured, and notify its principal, Baltimore Avenue Realty Company, Inc., of any notices received under the terms of the aforesaid lease. That the said defendant, Charles F. Curry Real Estate Company had no power of control of the subject premises, and was never in possession of any part of said premises; that possession of the subject premises was exclusively in plaintiff’s insured, Texas Oklahoma Express, Inc., at all times pertinent to this law suit. “7. The accidental injury to Charles R. Sharitz on March 15, 1965, was caused by a bumper falling at Door # 20 on the South side of the building on the above described premises; that said bumper’s primary use was to absorb the shock of trucks hitting the dock at Door # 20; that Texas Oklahoma Express, Inc., is a company engaged in the transport trucking business and subject premises are used as a terminal warehouse by it.” There were appended to the stipulation five letters from Texas Oklahoma Express, Inc., to the appellee’s managing agent. Two of these were written before the accident in question and called attention to alleged defects in the premises. However, we do not deem the details of any of this correspondence relevant to our decision here. Both parties recognize that Kansas has firmly embraced the rule contained in the American Law Institute’s Restatement of the Law of Torts, § 357: “A lessor of land is subject to liability for bodily harm caused to his lessee and others upon the land with the consent of the lessee or his sub-lessee by a condition of disrepair existing before or arising after the lessee has taken possession, if “(a) the lessor, as such, has agreed by a covenant in the lease or otherwise, to keep the land in repair, and “(b) the disrepair creates an unreasonable risk to persons upon the land which the performance of the lessor’s agreement would have prevented.” The judicial history culminating in our unqualified endorsement of this proposition is fully chronicled by Mr. Justice Fatzer in Williams v. Davis, 188 Kan. 385, 362 P. 2d 641, holding the doctrine applicable to a lease of any type of premises, whether residential or commercial. In its subsequent adoption of the Restatement of Torts, Second, the Institute adhered to the basic concept of § 357, merely substituting “contracted” for “agreed” in clause (a), and adding as a further condition of liability that it arises only if “(c) the lessor fails to exercise reasonable care to perform his contract.” We likewise adhere to the basic concept, and we accept the modifications as sound. In Williams v. Davis, supra, we quoted with approval the comment and illustration accompanying § 357, which are retained as to the same section in the Restatement of Torts, Second. Particularly pertinent here is the statement: “Since the duty arises out of the existence of the contract to repair, the contract defines the extent of the duty.” It therefore becomes necessary to analyze the lessor s obligation to repair, as set forth in the lease. The critical provision is paragraph 19, which provides: “19. MAINTENANCE OF EXTERIOR: LESSOR covenants and agrees to keep in repair the exterior parts of the buildings which are a part of the leased premises, including the roof, outer walls, downspouts and gutters, except repairs required to remedy any defect or condition caused by acts of the LESSEE, its agents, servants and employees, but shall be under no obligation to make any repairs to the exterior parts of the building until and unless the LESSEE notifies the LESSOR of the necessity thereof, in writing, in which event LESSOR shall cause such repairs to be made as promptly as possible.” (Emphasis added.) In its brief appellant urges that the emphasized portion of this paragraph is ambiguous and “should be given no effect whatsoever.” But, “A cardinal rule in the construction of contracts is that they must be interpreted in light of their own peculiar provisions, and every provision must be construed, if possible, so as to be consistent with every other provision and to give effect to all” (Wiles v. Wiles, 202 Kan. 613, 619, 452 P. 2d 271. Emphasis added.) The language in question was obviously inserted in the lease with some purpose in mind; it was a portion of one of seven typewritten paragraphs added to seventeen printed paragraphs of a form lease. We do not find in it the ambiguity asserted by appellant. We construe it as an exception to the lessors obligation, requiring only a direct causal connection between the activities of the lessee and the defect to relieve the lessor of its duty to repair. The trial court reached the same conclusion. In his letter opinion the trial judge first found that there had not been sufficient notice to the lessor of the existence of the defect — an issue we do not reach — and went on to say: “Secondly, Paragraph 19 of the lease excepts from the repairs which lessor is obligated to make those which are required to remedy any defect or condition caused by acts of the lessee. The only reasonable assumption on the basis of the evidence presented is that a loose or damaged bumper would be caused by acts of the lessee, its agents, servants or employees in allowing the trucks to come in contact with those bumpers.” The evidence the trial court had before it was, of course, the stipulation of facts quoted from above. Paragraph 6 of the stipulation put the lessee in exclusive possession of the premises; paragraph 7 indicated that the purpose of the guilty bumper was to absorb the shock of trucks hitting the dock, and that the lessee was engaged in the trucking transport business, using the premises as a terminal warehouse. It was from these facts that the trial court concluded that a loose or damaged bumper would be “caused by the acts of the lessee, its agents, servants or employees” in allowing trucks to come in contact with it. We believe this was a permissible inference from the stipulated facts. This being so, the defect or condition came squarely within the exception to the lessor’s covenant to repair, and there could be no liability on its part to the injured workman and hence none to appellant. The judgment is affirmed. APPROVED BY THE COURT.	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The opinion of the court was delivered by Harman, C.: In this habeas corpus action the natural mother and her sister are contesting over the custody of a young child. The maternal aunt prevailed in the trial court and the mother has appealed. For our purposes the facts are not in controversy and may be briefly summarized. The child in question, Stephanie Lynn Mask, was born December 15, 1967. At that time the child’s natural mother, Shirley Rhea, appellant herein, was married to Deal Rhea, Jr. Appellant and Rhea had separated in June, 1966. Thereafter they had a brief reconciliation, cohabiting for three days in March, 1967, during which interval appellant became pregnant with Stephanie Lynn. At the conclusion of this three day period appellant’s husband left her and she has not seen him since. They have never been divorced. When appellant was about six months pregnant she made an arrangement with her sister, whose name was then Mary Ann Mask, appellee herein, whereby appellant would seek medical services and enter the hospital for her confinement under her sister’s name, the sister to assume all expense in connection with the child’s birth and thereafter to have its custody as though it had always been her own child. Appellant’s mother and other relatives were cognizant of this arrangement. Appellant made this agreement because she felt financially unable to bear the expense involved. Appellee had no child, was unable to have one and wanted appellant’s expected child. The foregoing arrangement was carried out. Appellant sought medical services and entered the hospital under appellee’s then name; Stephanie Lynn was bom; upon leaving the hospital three days thereafter appellant turned her over to appellee and, except for one week-end, appellee has had her ever since. Stephanie Lynn does not know appellant is her mother. Appellant testified she now considers herself financially able to care for Stephanie Lynn and wants her custody. As a result of her marriage to Rhea appellant has an older daughter, April Marie, whose custody she has always had. She maintains a three room apartment for herself and April Marie, who was four years of age at the time of the hearing. Appellant has worked at the same manufacturing company for seven years. The older daughter is taken care of at a day care center while she works. She has started bank accounts and taken out insurance policies for both her daughters. She has given some clothing and also a Christmas gift to Stephanie. Appellee, who has been married four times, testified appellant was always telling her she was going to take Stephanie back and was always trying to take Stephanie away from her; Stephanie was nervous when she returned from a week-end visit with appellant; appellant told their mother she had planned to regain Stephanie’s custody ever since the day appellee took her. There was testimony appellee has been a good mother. No adoption proceedings were ever filed. Appellant commenced this proceeding December 8, 1969. The entire findings of fact and the Judgment of the trial court are embraced in its oral statement made at the conclusion of the evidentiary hearing as follows: “This is an unusual factual situation. Both parties agreed prior to the birth of this child that the custody of the child when bom would be vested in the Respondent, and that agreement was consummated and was abided by until December 8th of 1969, when this petition for writ of habeas corpus was filed, in which consent to custody was attempted to be changed by the Petitioner in this case. “At the time this case was filed there was no showing that this child was not being properly taken care of; that the child was not in the possession of the one agreed to; and, therefore, I am going to order that this writ of habeas corpus be denied. “Actually — commenting on this matter — this matter should be litigated — I can’t order any party to file litigation in the Probate Court — but this matter should once and for all be determined by the Probate Court on a petition for adoption, on whatever grounds that there appears to be, and then the parties will not be living in such a state as they are now. There may or may not be grounds for adoption. That’s for the Probate Court to rule on, but if I were to rule on it today, I would grant the adoption on the part of the Respondent.” Undoubtedly acting in good faith in its conception of the child’s best interest, the trial court patently placed reliance on the fact the child was in the custody of its aunt agreeable to its mother’s arrangement. However, such reliance was juridically misplaced. Our cases are legion that a minor child cannot be the subject of a valid gift and a parent cannot merely by giving away a child be deprived of the right to its custody (see e. g., Wood v. Shaw, 92 Kan. 70, 139 Pac. 1165; In re Jackson, 164 Kan. 391, 190 P. 2d 426). Custody of a minor child is simply not a matter to be determined by contract (Chapsky v. Wood, 26 Kan. 650). Nor, despite the well-intentioned efforts and plans of appellee, can the decision of the trial court be upheld upon any other ground inasmuch as there was neither a finding nor evidence of unfitness on the part of appellant to have custody of her child. Many of our decisions on the subject of parental custody were recently collected in Hamm v. Hamm, 207 Kan. 431, 485 P. 2d 221, a case bearing considerable analogy factually to that at bar. Without elaboration, the rule is, where the contest for custody is between a parent and a third party, a parent who is able to care for his child and desires to do so, and who has not been found to be unfit to have such custody in a proceeding where that question is in issue, is entitled to custody as against the third party or others who have no permanent or legal right to custody (Gardner v. Gardner, 192 Kan. 529, 389 P. 2d 746). Appellee sought to elicit from appellant while she was on the witness stand admissions inferring she was guilty of some moral delinquencies but these efforts were wholly fruitless. Unfitness was never shown. Appellee now argues there was an implicit finding of unfitness in the trial court’s statement concerning adoption proceedings. We are unable so to construe the gratuitous remarks made; moreover, as indicated, there was no evidence to support such a finding. Appellee’s contention of abandonment of the child, so as to constitute the requisite element of unfitness, is untenable under the circumstances related. Appellant’s undisputed evidence showed her ability suitably to care for her child as well as her fitness for such custody and upon the showing made that custody may not be denied her. Hence the judgment is reversed and the proceedings are remanded with directions to award custody of the minor child to its natural mother, appellant herein. APPROVED BY THE COURT.	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The opinion of the court was delivered by Hatcher, C.: This is an appeal from a judgment in a child custody proceeding. The natural mother was denied custody of her two small children and she has appealed. The facts are not in dispute. As the appeal challenges the finding of unfitness of the mother, the facts must be presented in some detail. In 1965, appellant filed a divorce action against her husband and was granted temporary custody of her four minor children, Wanda, Zina, Cindy May and Kristen Ray, whose ages at the time ranged from two months to five years. Receiving no financial assistance from their father, appellant was unable to provide for her children and in the fall of 1965, she agreed to allow the two oldest girls, Wanda and Zina, to stay in the home of their paternal grandparents and the youngest boy and girl, Kristen Ray and Cindy May, to stay in the home of their fathers aunt and uncle, appellees herein. Both the grandparents and the appellees live in the same neighborhood in Arkansas City, Kansas. In June, 1966, this temporary arrangement was reduced to writing and approved by the court, and in the same year a final decree of divorce was granted to appellant. Subsequently, appellant met Rudy Moser who was a resident of Las Vegas, Nevada, and an employee of Trans World Airlines. In February, 1967, they were married. Approximately three months after appellant was remarried she filed a motion in the district court of Sedgwick County, Kansas, seeking to regain custody of her two oldest daughters from the paternal grandparents. On June 7, 1968, the judge of the district court of Sedgwick County, Kansas, granted permanent custody of the two older daughters to appellant. They have resided with her and Mr. Moser since that time. Parental rights of the natural father were judicially severed by a Nevada court in 1969, and his whereabouts are unknown. In August, 1970, in an effort to reunite her family, appellant filed a motion before the same judge requesting that she be granted custody of the two younger children, Kristen Ray and Cindy May. The judge ordered a juvenile court investigation of the home of appellant be made, and on September 23, 1970, the report was filed. The report of the juvenile court of Clark County, Nevada, found that appellant and her husband own a three-bedroom home in a well developed and respected housing area in Las Vegas, Nevada, that they are essentially without debts, except on their home, and have an income of slightly more than $1,000 per month. The two oldest girls, Wanda and Zina, were found to be in good health, with fine school records, and were attending church regularly. The report noted that appellant and husband do not drink or go out frequently, but rather enjoy family entertainment such as bowling, croquet and vegetable gardening in their back yard. The report concluded by stating that appellant’s home atmosphere was very good and that all persons contacted by the investigator gave a high appraisal of the Mosers. On October 2, 1970, following the juvenile investigation, a hearing was held on the appellant’s motion for change of custody. The appellant testified that during the past two and one-half years since she was granted custody of her two oldest children, their home life has been good. She exhibited the children’s school and church records and told about the family home and activities. She further testified that it was her husband’s desire to adopt her children but that they were waiting until all four children could be adopted at one time. Concerning the two younger children, she explained that she had always remembered the children with gifts on their birthdays and Christmas and had journeyed from Las Vegas to Kansas some fifteen times to visit them in the past three and one-half years. On these visits the older girls have gone with her and were always upset because their younger brother and sister could not go home with them. All four of the children have known and played with each other most of their lives having lived in the same neighborhood in Arkansas City, Kansas. Frank Wadsworth, one of the owners of the Las Vegas Transfer and Storage Company and a resident of Las Vegas for more than 35 years, testified that appellant had been a responsible and efficient employee for the past three and one-half years. Mildred Carlson, a resident of Las Vegas, Nevada, for more than 24 years and a fellow employee of appellant, also testified in her behalf. Both witnesses stated that they had observed Mrs. Moser both on and off the job and on a number of occasions when she was with her older children. Each observed that the children were happy, well dressed and well taken care of, and each characterized appellant’s work habits and personal habits as good. Mrs. Carlson stated that based upon her observation of the youngsters and the home setting, she believed that the adjustment of the two older girls to their new home had been perfectly normal. Appellant’s husband, Rudy Moser, testified that his relationship with appellant’s children was good and that he has supported the two older children since his wife had regained custody of them. He stated that he would welcome the two younger children into his home and support them, and that he intended to adopt all four of the children as his own. The appellees presented the testimony of one witness, that of appellee, Barbara Kelsey. She testified that she and her husband have had custody of the two children in question since October, 1965, except for a period of three months in early 1966, and that the children have resided with them and their own two children since that time. Mrs. Kelsey was asked by her attorney if adjustment for the children would be hard if the court changed custody. She replied that adjustment for the youngest child, in her opinion, would be harder because he is “sensitive” but stated that he was a “very healthy” boy. Concerning the girl, she felt that she would have no trouble adjusting to the change of custody. The children were enrolled in school under the name of Kelsey but that they knew their real name was Hamm. No attempt had ever been made to conceal the identity of the children’s real mother, and Mrs. Kelsey told them on occasion that Mrs. Moser had “brought them into the world.” She admitted that she had called appellant since the filing of appellant’s motion to change custody and offered the girl to her in exchange for appellant’s allowing the boy to stay with the appellees. At the close of the evidence, the court took the matter under advisement and on October 13, 1970, it entered an order which concluded: “It is the opinion of this court that plaintiff cannot be permitted to grant the complete care, support, responsibility and financial responsibility of raising these two very young babies to another and then at her will and desire take these children without cause. It is the further opinion of this court that these children cannot be uprooted from their home and ‘parents’ and transplanted into a totally strange situation without causing them irreparable harm and damage. It is this court’s opinion that in situations such as is here presented, the future health and welfare of the children involved is paramount and not the desires and rights of adults. “After hearing the testimony of plaintiff, Mrs. Jack Raymond Kelsey, and other witnesses, after observing the parties to this matter, and after much consideration, this court finds that plaintiff is an unfit person to have the future care, custody and control of Kristen Ray Hamm and Cindy May Hamm. It is my opinion that plaintiff is not a suitable, proper or correct person under all the circumstances to have the future care and custody of these children. To take these children from their present home and those they consider their parents and place them with persons who to them are practical[ly] strangers would be an unconscionable exercise of judicial discretion.” The trial court granted permanent custody of the two children to the appellees. The appellant contends that there was no substantial evidence to support the finding that she was an unfit person and the trial court abused its discretion in denying appellant’s motion for change of custody. We are forced to agree. There was no evidence of any character that indicated the mother was an unfit person to have possession of her children. In fact, the evidence before the trial court, which we have previously summarized, would indicate that the mother was maintaining a fine Christian home in which to raise her children and that she had a motherly desire to have her four children in the home together. The right of the parent to the custody of the children under such circumstances has been announced in numerous decisions. In Stout v. Stout, 166 Kan. 459, 201 P. 2d 637, we stated at page 463 of the opinion: “. . . Under our recent and often repeated decisions, to which we have strictly adhered for many years, the established and inviolate rule has been and now is that a parent who is able to care for his children and desires to do so, and who has not been found to be an unfit person to have their custody, in an action or proceeding where that question is in issue, is entitled to the custody of his children as against grandparents or others who have no permanent or legal right to their custody, even though at the time the natural parent seeks their custody such grandparents or others are giving the children proper and suitable care and have acquired an attachment for them (See Jones v. Jones, 155 Kan. 213, 219, 124 P. 2d 457; May v. May, 162 Kan. 425, 176 P. 2d 533; In re Jackson, 164 Kan. 391, 190 P. 2d 426; Bailey v. Bailey, 164 Kan. 653, 192 P. 2d 190, citing numerous other and early decisions to the same effect).” The opinion in the Stout case was quoted with approval in Ramey v. Ramey, 170 Kan. 1, 223 P. 2d 695. See, also, Christlieb v. Christlieb, 179 Kan. 408, 295 P. 2d 658. Where a contest for child custody is between a mother and a third party, in the absence of evidence that the mother is an unfit person to have custody, she is entitled to custody as against the third party. (Finney v. Finney, 201 Kan. 263, 440 P. 2d 608.) The trial judge no doubt placed great weight on his conclusion— “It is the opinion of this court that plaintiff cannot be permitted to grant the complete care, support, responsibility and financial responsibility of raising these two very young babies to another and then at her will and desire take these children without cause. . . .” The appellees’ only contention is that the failure of the mother to support the two children is sufficient grounds to sever all parental relationship. The above conclusion of the court is not a proper statement of the law. A child is not a chattel subject to an absolute gift or contract. A parent cannot by merely giving away a child be released of the obligation to support it or be deprived of the right to its custody. The question was definitely decided in Wood v. Shaw, 92 Kan. 70, 139 Pac. 1165. There the father had delivered a son two years old, and a baby girl, four days old, to the custody of their grandparents, the parents of the children’s mother. Ry a written contract the father agreed they might remain with their grandparents for fourteen years. Four years later he remarried and endeavored several times to secure the children from their grandparents but was not successful. He brought habeas corpus to get their custody. There had been some trouble between the father and the grandparents and on one occasion he had gained possession of the children by a ruse. This was all pointed out in the opinion. We said: “The agreement referred to is not controlling, because the custody of the children is not a matter to be determined by contract. (Chapsky v. Wood, 26 Kan. 650; Notes, 27 L. R. A. 56, 41 L. R. A., n. s., 578, 42 L. R. A., n. s. 1013.) There is no substantial controversy as to the important facts of the case. The court is of the opinion that there is nothing in the circumstances of the case to overcome the natural claim of the father to the custody of his children, inasmuch as his right is not subject to be contracted away, and has not been forfeited by any misconduct; that the present arrangement affords no such superior advantage to the children as to offset this consideration, especially in view of the fact that after seven years more they were in any event to be returned to him. . . .” (p. 72. See, also, In re Jackson, 164 Kan. 391, 190 P. 2d 426, where the matter is discussed at some length.) We are forced to conclude that there being no evidence of unfitness on the part of the mother the trial court abused its discretion in denying her motion for change of custody. The judgment is reversed with instructions to the trial court to enter an order granting the permanent custody of the two children, Cindy May Hamm and Kristen Ray Hamm, to their natural mother, Dorothy Leone Moser. APPROVED BY THE COURT..	[ -47, -24, -11, 108, 10, 97, 46, 26, 114, -49, 37, 83, -21, -2, 20, 121, 91, 45, 96, 120, -13, -77, 87, 32, 86, -13, -80, -35, -5, 89, -92, -42, 76, 112, -118, -43, 66, -62, -57, 84, -122, 6, -117, -27, 88, -58, 54, 123, 90, 15, -79, -66, -45, 41, 29, -48, 44, 44, -101, -67, 88, -104, -117, 29, -49, 22, -109, 68, -110, -124, 72, 126, -36, 56, 40, -20, 51, 54, -122, 116, 89, -101, 13, 60, 99, 33, 60, -26, -8, -120, 78, 115, -115, -89, -66, 24, 3, 69, -66, -67, 120, 20, 11, -2, 111, 5, 31, -20, -84, -118, -41, -111, 13, 120, -120, 8, -29, -59, 34, 113, -56, -32, 92, 70, 51, -101, -114, -102 ]
The opinion of the court was delivered by Schroeder, J.: This is an action by J. A. Tobin Construction Company, a corporation (hereafter referred to as Tobin), to recover on a bond given to procure a restraining order granted to the de fendants as provided in K. S. A. 60-902 and 60-903. The defendant, Jerome E. Holtzman, and others, were the plaintiffs in a prior suit to procure the restraining order. Holtzman was the principal on the bond and the Maryland Casualty Company, also a defendant herein, his surety. The trial court, after hearing the matter, found the restraining order was wrongfully obtained. Damages were awarded to Tobin in the amount of $10,000, the limit of liability on the bond, and the defendants have duly perfected an appeal. The questions on appeal are: (1) Whether the trial court adopted a correct theory of the law in holding Tobin was entitled under the bond to recover the reasonable rental value of its quarrying machinery and equipment for the period of wrongful restraint; and (2) whether the trial court erred in holding Holtzmans counterclaim barred by the statute of limitations. On the 25th day of February, 1966, Tobin acquired a sublease from Union Quarries, who held an assignment of a lease from Union Construction Company on land owned by Magdalen E. Tobin in Aubry Township, Johnson County, Kansas, for use as a rock quarry. The quarrying operation was the subject of an appeal to this court in Union Quarries, Inc. v. Board of County Commissioners, 206 Kan. 268, 478 P. 2d 181. On April 6, 1966, at the time suit was filed herein, Jerome E. Holtzman and Joan Holtzman, his wife, had entered into a real estate contract with Joseph W. Sharp and Marguerite Sharp, his wife, to purchase a parcel of real estate adjoining the property upon which Tobin conducted rock quarrying operations. The petition filed by the Holtzmans and the Sharps sought to procure a restraining order and to permanently enjoin Tobin from quarrying operations upon the land Tobin held under lease. They also petitioned the court for an allowance of damages in the amount of $7,500 allegedly occasioned to their land as a result of quarrying operations conducted by Tobin. On April 7, 1966, a temporary restraining order was issued to Holtzman, ex parte, provided that he execute and file with the clerk a bond in the sum of $1,000. The bond was posted on the same day with Holtzman as principal and Maryland Casualty as surety. On April 11, 1966, Tobin filed a motion requesting vacation of the temporary restraining order, or an increase in the amount of the bond. On April 12, 1966, Holtzman was ordered to furnish an additional bond in the amount of $9,000, or the restraining order would be dissolved. On the same day the additional bond was furnished, with Holtzman as principal and Maryland Casualty as surety. On the 14th and 15th days of April, 1966, a hearing was conducted by the trial court concerning the dissolution of the restraining order. At the conclusion of the hearing the court ordered that Holtzman submit additional evidence to support his allegation that injunctive relief was required, or in the alternative, that Holtzman provide additional bond. In the event that Holtzman did not desire to produce additional evidence or to furnish additional bond, it was directed that the restraining order be dissolved. Holtzman did not provide the additional evidence, nor an additional bond, and the restraining order was dissolved. On May 27, 1966, the court determined Holtzman had an adequate remedy at law for any damage occasioned to his property and that the temporary injunction should be denied. On October 7, 1966, Holtzman moved the court for an order dismissing his action for damages without prejudice, whereupon his action was dismissed by the court without prejudice on January 4, 1967. On the 11th day of March, 1968, the court conducted a hearing concerning the issuance of a permanent injunction against Tobin, and by journal entry filed on March 15, 1968, Holtzman was denied any injunctive relief. Accordingly, judgment was entered in favor of Tobin on all counts of the plaintiff’s petition in the injunction action, thus establishing the original restraining order against Tobin to have been wrongfully obtained. On March 29, 1968, Tobin filed its petition in the case at bar requesting damages against Holtzman and his wife, Sharp and his wife, and the Maryland Casualty Company for the sum of $21,000, plus costs and attorneys’ fees alleged to have been suffered as a result of the wrongful enjoinment and restraint of Tobin by the previous injunction action. To this petition the Sharps filed a separate answer. Maryland Casualty filed a separate answer, and Holtzman and his wife filed an answer and counterclaim wherein they sought to set off the damages occasioned by them as a result of the quarrying operations conducted by Tobin. Tobin replied to the counterclaim. On April 10, 1969, the trial court, upon Tobin’s motion, deter mined that the counterclaim was barred, both as a counterclaim and as a setoff. It further held the only issue left for determination by the court was the amount of damages suffered by Tobin as a result of the wrongful restraining order obtained by Holtzman in the prior action. The court’s order was journalized and filed on May 6, 1969. In the meantime, while the proceedings in the case at bar were being had before the trial court, the parties were engaged in pretrial discovery. A part of that pretrial discovery consisted of written interrogatories propounded to Tobin. Answers to these interrogatories show that Tobin did not lease any of its equipment; that Tobin was shut down by the restraining order from April 7, 1966, through April 15, 1966, with no time being charged for Saturday or Sunday; that no rock was sold by Tobin between the dates of April 7, 1966, and April 15, 1966; and that Tobin moved its equipment off the site on April 20, 1966. Tobin’s answer to the interrogatories further itemized damages claimed as follows: Loss of use of equipment and rentals on equipment $13,643.25; loss of profits $1,806.25; loss of time by employees $473.22; automobile mileage $25; and attorneys’ fees $3,825. The case was tried on the 25th day of June, 1969. Counsel in his opening statement on behalf of Tobin announced that Tobin would not claim any damage for loss of profit, stating: . . it would appear to us, Your Honor, that based upon the evidence that we have and the law that we have found, that the item of some $2,000 for loss of profit may not be justifiable under the law. Quite frankly, Your Honor, I think the evidence will be that none of the material, up to that period of time, was sold. And there is really no way for us to determine the true market value of gravel. We felt that it was a speculative measure and a speculative approach and we are going to have to actually just abandon it.” It was announced Tobin’s claim for damages would be based upon the reasonable rental value of the equipment, plus attorneys’ fees, court costs and expenses. Tobin’s evidence substantiated the items of damage claimed in the answer to the interrogatories, with the exception of the item of profits, concerning which there was no evidence. The only item of damages to which Holtzman objected was the loss of use of equipment, as an element of damages. The trial court overruled Holtzman’s objection and held that the only way to determine Tobin’s damages for the loss of use of equipment would be to base it upon the rental value of the equipment during the time it was shut down at the place in question by the wrongful restraint. After a full hearing the trial court took the case under advisement and on June 25, 1969, entered judgment against Holtzman, Maryland Casualty Company, Joan Holtzman, Joseph W. Sharp and Marguerite Sharp for the sum of $10,186.94 plus the costs of the action. After a series of motions the trial court reduced the amount of judgment to the limit of the bond and dismissed the action against all defendants, except Holtzman and the Maryland Casualty Company against whom judgment was finally entered for $10,000 on December 23, 1969. The evidence in the record is sufficient to support the trial court’s finding that it was not feasible to move Tobin’s equipment from the quarrying site for the period it was shut down because Tobin had no other place to move the equipment, and the time required in moving such heavy equipment was too extensive. The evidence established Tobin was shut down 6K days by reason of the restraining order which was wrongfully obtained; that there were 22,835.55 tons of rock stockpiled on April 7, 1966, the date that the restraining order became effective; and that Tobin had over 20,000 tons of rock stockpiled when it moved its equipment off the site. In answer to interrogatories Tobin admitted that from April 16 to June 13, 1966, it sold only 3,365.70 tons of rock. While Tobin requested damages in the amount of $13,430.75 for the loss of use of its equipment, that being the fair rental value of such equipment on a daily basis for the 6M days it could not be used, the trial court found that Tobin was entitled to only $7,006 based on the weekly rental value of such equipment. The weekly rate was based on 6 days use. The appellant first contends the trial court adopted an erroneous theory of law in holding that Tobin was entitled to recover the reasonable rental value of the use of its quarrying machinery and equipment for the time quarrying operations were wrongfully restrained. The statute, K. S. A. 60-903, provides that a bond may, at the discretion of the Rial court, be required upon the issuance of a restraining order, if it appears that damage may result to the party restrained. Both the bond posted on April 7, 1968, in the sum of $1,000, and the additional bond posted on April 12, 1968, in the sum of $9,000, secured Tobin as to damages that were caused by reason of the wrongful restraint. Each of the bonds posted bound Holtzman and Maryland Casualty Company in the following words: “. . . to pay, to any party who may be found to have been wrongfully enjoined or restrained thereby, all costs and damages which may be incurred or suffered by reason of such wrongful restraint, not exceeding, however the amount [of the bond].” The parties are in agreement as to the general law applicable to actions upon bonds given to procure a restraining order or temporary injunction, when it is ultimately determined that the temporary restraint imposed was wrongful. The damages recoverable in an action on an injunction bond include compensation for all actual damage sustained by reason of the wrongful issuance of the injunction; that is, such damage as is the direct, natural and proximate result of the injunction. (Clay Center v. Williamson, 79 Kan. 485, 100 Pac. 59; Hyler v. Wheeler, 240 S. C. 386, 126 S. E. 2d 173, 95 A. L. R. 2d 1182; 43 C. J. S., Injunctions, § 309, p. 1091; and 42 Am. Jur. 2d, Injunctions, § 370, p. 1186.) The appellants rely upon what they term an admission by Tobin in the interrogatories to the effect that, if Tobin were permitted to operate during the 61 days the temporary restraint was imposed, its profits would have been $1,806.25. They urge that Tobins own estimate of profits is the proper measure of damages. Tobin, on the other hand, asserts the profit item claimed in the answer to an interrogatory represented the estimated loss of the use of the land, separate from the loss of the use of the quarrying equipment which was itemized in the interrogatories as a loss of $13,643.25. Tobin points out the rock which would have been quarried by operation of the crusher for the period of temporary restraint imposed remained a part of the land. Tobin also calls our attention to the fact that the appellants objected to the item on loss of profit as being conjectural, and Tobin, recognizing the validity of such argument, removed this element from the court’s consideration by conceding its conjectural nature. The appellants argue: “There is not one scintilla of evidence that Tobin Construction could have sold, during the six and a quarter days that they were restrained, any amount of rock whatsover. It could certainly be safely presumed that they would have sold no more rock in those six and a quarter days than the rock that they sold in the two months immediately after the restraining order was lifted. Tobin Construction was not in the business of renting equipment. They were in the business of quarrying and selling rock. They have simply failed to show any evidence whatsoever that if they had not been restrained that they would have earned a sum equal to the $10,000.00 damages assessed against Holtzman and Maryland Casualty. . . .” The record does not disclose how many tons of crushed rock would have been added to the stockpile of Tobin each day the equipment was rendered idle for the period of temporary restraint imposed. The property upon which Tobin had a lease contained a natural lake of stone or rock that was rare in type and nature. It meets the specifications of the State Highway Commission of Kansas, and finding quantities of such rock was said to be rare. The quarrying of rock on the property commenced in 1950, and sale or use of the stockpiled rock in Tobin’s business was inevitable. Generally the loss of use of property is a compensable element of damages in the state of Kansas. The ownership of an item of property carries with it the right to use, or to control the use of, that item of property. Therefore, where one has been wrongfully deprived of the use of an item of property there has been a loss of one of the valuable rights or interests in property — the right to use the property. (Monroe v. Lattin, 25 Kan. 351; Anderson v. Rexroad, 180 Kan. 505, 306 P. 2d 137; and 22 Am. Jur. 2d, Damages, § 152, p. 220.) In Anderson v. Rexroad, supra, it was said: “Generally speaking, there may be a recovery for the loss of use of property, providing the use is a lawful one and the damages are established with reasonable certainty (25 C. J. S., Damages, § 41, pp. 514, 515), and, where property is attached to land, such as was plaintiffs’ dwelling, and it is damaged or destroyed, the owner is entitled to damages, which may not exceed the value of the property, and for his loss of use or for loss of rental up to the time when, with ordinary diligence, it could have been restored, whether in fact it was restored or not. The value of its use is not the mere value of its intended use but of its present potential use whether availed of by its owner or not (15 Am. Jur., Damages, §§ 129, 131, 132, pp. 537, 540, 541). . . .” (p. 513.) Here the evidence clearly established that the loss of use for the period of temporary restraint imposed was occasioned by the existence of the restraining order. The order restrained Tobin from “quarrying or excavating operations.” The trial court’s finding that there was a causal relationship between the restraining order and the fact that Tobin could not utilize his equipment was supported by evidence. The injunction defendant is in general entitled to recover rental value of the property, or the value of its use and occupation, which was lost because of the wrongful restraint. (43 C. J. S., Injunctions, § 315, pp. 1094, 1095; see, also, High, Law of Injunctions [4th Ed.] § 1673, p. 1624; 42 Am. Jur. 2d, Injunctions, § 70, p. 1186; and 22 Am. Jur. 2d, Damages, § 155, p. 223.) The general rule, well supported by authority and the fairest that could be adopted, is that damages for the wrongful deprivation of the use of specific property are to be measured by its rental value. (Anderson v. Rexroad, supra; and McCoy v. Fleming, 153 Kan. 780, 113 P. 2d 1074.) The rental value has been accepted as a fair means of determining the value of loss of use in other jurisdictions. (See Harnstrom v. Anderson Electric Car Co., 210 Ill. App. 395; Slattery v. Tillman, 197 Mich. 349, 163 N. W. 938; and Kunkel v. Cohagen, 151 Neb. 774, 39 N. W. 2d 609.) Damages determined on the basis of the rental value of several items of heavy mining equipment made idle as a result of an injunction wrongfully obtained were upheld in an action on an injunction bond in State ex rel. v. Freeport Coal Co. (June, 1960) 145 W. Va. 343, 115 S. E. 2d 164, where many cases from other jurisdictions are accumulated. In the opinion the court said: “It is obvious that the plaintiff’s heavy mining equipment was costly; that it was rendered idle temporarily; and that the plaintiff was necessarily deprived of its use until the several items thereof could be moved and put to use on other projects. It is apparent from the testimony that the plaintiff acted with reasonable diligence in finding use for the equipment after his coal mining operations were stopped by the injunction, and that in this respect he exercised due diligence to minimize the damages. “The equipment was made idle as a direct and proximate result of the injunction, and the plaintiff is entitled to recover in this action a sum sufficient to compensate him for the temporary loss of the use of the equipment. In testimony offered in his behalf, the plaintiff asserted a claim of $53,139.75 as the ‘rental value’ of the several items of equipment, made idle as a result of the injunction. . . .” (pp. 352, 353.) Tobin’s foreman testified it was not feasible to move the equipment or to use the equipment elsewhere because of the time element (the original order enjoined Tobin “for the next seven days hereafter”) and because there was no other place to use this equipment. His testimony was supported by another witness who stated it was not feasible that the equipment be moved elsewhere. The trial court made a specific finding in favor of Tobin on this point. While Tobin owned the equipment used in his quarrying operations, it was established by the testimony of two experts that such equipment was commonly rented in the industry. These experts testified as to the precise rental value of each item of equipment used by Tobin in his quarrying operations, both on a daily and a weekly basis. In Hyler v. Wheeler, supra, it was said an accepted measure of the value of the use of specific property capable of being rented is its rental value. We conclude the trial court did not err in allowing the reasonable rental value of the use of Tobin’s quarrying machinery and equipment for the period of temporary restraint wrongfully imposed. On the second point asserted by the appellants, the trial court did not err in holding Holtzman’s counterclaim barred as a setoff by the statute of limitations. The appellants contend their counterclaim was not barred by the statute of limitations, K. S. A. 60-513 (1) because the claim arose out of the transaction, or was connected with the subject of the action. K. S. A. 60-213 (d) provides: “(d) Effect of death or limitations. When cross demands have existed between persons under such circumstances that, if one had brought an action against the other, a counterclaim or crossclaim could have been set up, neither can be deprived of the benefit thereof by the assignment or death of the other or by reason of the statute of limitations if arising out of the contract or transaction set forth in the petition as the foundation of plaintiff’s claim or connected with the subject of the action; but the two demands must be deemed compensated so far as they equal each other.” The cross-claim filed by the Holtzmans in the present action fails to meet the requirements of the above statutory provision. To clarify this point it is necessary to review the dates involved. The original tort that formed the basis of the original petition filed by the Holtzman’s in the injunction action, and reasserted in the counterclaim, alleges that the tortious activity of Tobin took place on or about February 28, 1966. That petition was filed by Holtzman and other plaintiffs on April 6, 1966. The restraining order was obtained on April 7, 1966, and ceased to have an active existence on April 15, 1966. The cause of action seeking damages by Holtzman and the other plaintiffs was voluntarily dismissed as per journal entry of dismissal dated January 4, 1967, and the injunction action was finally and completely decided on March 15, 1968. On that date it was finally adjudicated that Holtzman’s request for injunctive relief be denied, thereby establishing that the temporary restraint was wrongfully imposed. On that date, March 15, 1968, Tobin’s cause of action on the bond first arose. Tobin filed his damage action on the injunction bond March 29, 1968, and the answer and counterclaim of Holtzman was not filed until April 16, 1968. The statute, 60-213 (d), supra, requires that before the cross-claim can be asserted the two demands, the plaintiff’s demand and the defendants’ demand, must have coexisted between persons under such circumstances that if one had brought an action against the other, a counterclaim could have been set up. In all cases this prerequisite requires that at some point in time there must be a coexistence of the two claims together. If the cross-claim asserted is barred prior to the existence of the claim asserted in the damage action by Tobin, then the statute does not allow the assertion of the cross-claim, since the two claims at no time coexisted in time. This point was ruled on in O’Neil v. Eppler, 99 Kan. 493, 162 Pac. 311, where the court held: “Under section 102 of the civil code, parties holding cross-demands against each other, under such circumstances that if one had brought a suit against the other a counterclaim or setoff could have been set up, will not be deprived of the benefit of them by reason of the statute of limitations, but if the demand of one party becomes completely barred before the demand of the other comes into existence the barred demand is not available as a setoff against the live demand.” (Syl. ¶ 1.) O’Neil v. Eppler, supra, of course, represents the law as it existed prior to the new code of civil procedure, January 1, 1964, but the practical effect of the changes made by amendments in the new code is substantially the same as under the former statute. (Gard, Kansas Code of Civil Procedure Annotated, § 60-213 [d], p. 62.) This has been substantiated in Rochester American Ins. Co. v. Cassell Truck Lines, 195 Kan. 51, 402 P. 2d 782. Therefore, the Kansas law with regard to the necessity that the cross-demand and the demand asserted against which it is claimed as a pure defense must have some coexistence in time is well established both by the statute (60-213 [d], supra) and by the case law decided under it. The question then becomes one of whether the claim asserted as a cross-demand in this action ever coexisted in time with the action asserted by Tobin herein on the injunction bond. The basic cause of action asserted in the cross-demand allegedly occurred on February 28, 1966. Clearly, under K. S. A. 60-513 (1) this is an action for trespass upon real property which must be brought within two years. The two-year statute of limitations ran on February 28, 1968. The original petition by Holtzman and others was clearly filed within the period of the statute of limitations, but the action was thereafter voluntarily dismissed on January 4, 1967, in such a way that the period of limitations was in no way extended. Therefore, the statute of limitations ran on the cross-demand February 28, 1968. No cause of action existed on the injunction bond prior to March 15, 1968. (Harlow v. Mason, 98 Kan. 353, 157 Pac. 1175.) The counterclaim could not be asserted as a setoff because it was barred February 28, 1968, fifteen days prior to the time Tobin’s cause of action arose on the injunction bond. Therefore, the two claims never coexisted to fulfill the condition of K. S. A. 60-213 (d). The judgment of the lower court is affirmed.	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The opinion of the court was delivered by Fontron, J.: The appeal in this case stems from a judgment dismissing a divorce action at the conclusion of a full-dress trial. The defendant husband has appealed. Mr. and Mrs. Schrader were legally married on December 10, 1960. Domestic felicity did not long remain placid, and dissolution of the troubled union was judicially decreed on June 6, 1966. At this time the mother was awarded custody of her two small children, a boy two years of age, and a baby girl just six months old. Child support, to be paid by the father, was set at $75 per month and $1200 alimony was awarded to Mrs. Schrader. This separation, however, was not destined to be permanent. Sometime in November, 1966, the Schraders again began living together, this time without bothering about anything so trivial as legal formalities. From the record we may surmise that throughout the ensuing two years of cohabitation the Schraders publicly dis played at least some of the characteristics normally appertaining to more formally married couples. However, the personal behavior of the two partners, both in relation to each other and outside the normal marital domain, as well, can scarcely be said to have been designed for the purpose of instilling mutual trust and confidence. Indeed, there is little in the record reflecting favorably on the moral habits and customs of either partner. As a result of continuing conjugal turbulence, Mrs. Schrader, on September 16, 1968, filed this action for a second divorce, alleging the existence of a common-law marriage and praying that she be released from the onerous bonds which shackled her to her ostensible husband. In due course of time, Mr. Schrader responded with a cross petition, denying fault on his part and pointing a finger of guilt and shame at his purported spouse. Ultimately the case was tried before the Honorable Frank R. Gray, who concluded that no common-law marriage had been established. As we have heretofore said, Judge Gray dismissed the lawsuit. Costs were assessed against Mr. Schrader and he brings this appeal. According to his statement of points, the defendant contends the trial court erred in three particulars: First, in finding that no common-law relationship existed; second, in failing to grant defendant a divorce on his cross petition; and third, in awarding custody of the minor children to the plaintiff. In a long line of cases, this court has recognized the validity of common-law marriages, and has outlined the prerequisites for the creation of common-law relationships. (Renfrow v. Renfrow, 60 Kan. 277, 56 Pac. 534; Smith v. Smith, 161 Kan. 1, 165 P. 2d 593; In re Estate of Freeman, 171 Kan. 211, 231 P. 2d 261.) In Sullivan v. Sullivan, 196 Kan. 705, 413 P. 2d 988, Justice O’Connor pointed out the elements basic to the common-law concept of marriage as being: First, a capacity to marry; second, a present marriage agreement; third, a holding out of each other as husband and wife to the public. (See, also, Gillaspie v. Blair Construction Co., 192 Kan. 455, 388 P. 2d 647.) With this brief legal recitation, we turn to defendant’s first point: Did the trial court err in finding that no common-law relationship existed? In our judgment this question must be accorded a negative answer. The pivotal finding made by the trial court is found in the following sentence of its Memorandum of Decision: “Although the parties cohabited, made joint income tax returns and generally acted as man and wife from November, 1966 to September, 1968 there was never a present agreement or understanding that they were married. . . .” (Emphasis supplied.) In support of this finding the trial court quoted in its memorandum certain testimony given by Mrs. Schrader in response to questions propounded by the court: “Q. Mrs. Schrader, let me ask you the same question I asked your husband. Why didn’t you get married when you went back together legally? “A. I was afraid to. I wanted to try for the kids’ sake, but I didn’t feel sure enough to turn around and absolutely remarry. I thought if we couldn’t work it out we wouldn’t have to go through everything all over again. “Q. So actually you didn’t feel you were married, you figured you had an out as long as you were not legally married again? “A. Yes sir, I suppose so.” Corroborating the testimony of his quondam wife, the defendant himself, replying to a question put to him by the court, said: “She [Mrs. Schrader] didn’t want to get married again, and the deal was we would go back together and if we could make it we would get married, but she would not get married, and I loved my kids and I went back to her.” The conclusion reached by the trial court that “the parties did not consummate a common law marriage after the divorce of June, 1966” appears to be amply supported by the record. Our invariable rule, repeated to the point of its becoming threadbare, is to the effect that findings made by the trial court will not be overturned on appeal where they are supported by substantial competent evidence. (See cases in 1 Hatchers Kansas Digest [Rev. Ed.] Appeal & Error, § 507.) Is it true there was evidence the parties did live together, held themselves out as man and wife, filed joint income returns, bought personal property as man and wife, and registered themselves in hotels in that capacity. This evidence was admissible as tending to establish a common-law relationship between the Schraders, and, standing alone, these circumstances might well have sufficed to warrant an inference that a consensual marriage had indeed been consummated. (Jacoby v. Jacoby, 132 Kan. 77, 294 Pac. 857; Cain v. Cain, 160 Kan. 672, 165 P. 2d 221; Gillaspie v. Blair, supra.) Our law, however, is very clear that an indispensable constituent of a common-law marriage is the existence of a present marriage agreement. (Whetstone v. Whetstone, 178 Kan. 595, 290 P. 2d 1022.) In Pitney v. Pitney, 151 Kan. 848, 101 P. 2d 933, our court had this to say, in analyzing its prior decisions in which common-law marriages had been upheld: . . In each of them a mutual present consent to the marriage was regarded as being essential to the establishment of such a marriage. (Citing cases.” (p. 853.) The testimony of both Mr. and Mrs. Schrader negates this prime requisite of a common-law marriage — that is, a present existing agreement between them. What we have so far said will dispose not only of the defendant’s first claim of error, but his second contention as well, i. e., that a divorce should have been awarded on his cross petition. The trial court came to the conclusion, on what we have said was sufficient exidence, that there had been no second or consensual marriage. Hence, there were no marital ties to be severed by a divorce. Mr. Schrader’s final complaint revolves around the trial court’s failure to change the custody of the children from their mother. It is true that K. S. A. 60-1606 provides substantially, in part, that even though a decree of divorce be denied, the court may make provision for the custody and support of minor children. Hence, the court could have entered a custody order in this case had it believed there was any occasion to do so. It is obvious the court believed no change of custody was justified at the time — and particularly a change to the defendant. In its memorandum opinion the court observed that were the hearing to be treated as a motion to change custody in the old divorce case that “the evidence would not have warranted a change of custody to defendant and although plaintiff’s conduct bordered on unfitness in the early months of her cohabiting with defendant after the divorce, her more recent behavior would not have warranted taking the children from her.” It cannot be gainsaid that the record reveals evidence of some sexual aberrations on the part of Mrs. Schrader. But, however much her deviations may have offended against social convention, we cannot say the court abused its discretion in permitting custody to remain, for the time being at least, in the plaintiff. Not only are exculpatory factors suggested in the record, but the trial court had the immense advantage of hearing and observing the principal participants in person. It thus occupied a far superior position than do we in arriving at a judicious and studied appraisement of the situation. (Finney v. Finney, 201 Kan. 263, 440 P. 2d 608.) In closing we would observe that a legal forum is still available to these parents for the litigation of matters pertaining to the custody of their unfortunate youngsters. The facilities of the Douglas County District Court can be summoned into play through the medium of the first divorce action whenever the welfare of the children requires that further consideration be given to their custody. The judgment of the court below is affirmed.	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The opinion of the court was delivered by Harman, C.: Chronologically, this is at least a third, and apparently it is a fourth, proceeding under K. S. A. 60-1507 filed by Oscar Glenn Lee attacking his conviction based on a plea of guilty to the offense of escaping from the state penitentiary (see Lee v. State, 207 Kan. 185, 483 P. 2d 482). Ground for relief alleged here in a motion filed April 16, 1970, was: “(a) On 11-2-65, I was sentenced to 1 to 3 years to be served consecutively to original sentence. “(b) I was not rebooked until 8/30/68 when I was eligible for rebook on the day I was sentenced since I was serving earned good time on original sentence on that date. (Dickinson County sentence).” As reasons why such ground had not previously been presented Lee alleged: “Did not have the information of the way I was sentenced until recently.” The trial court summarily dismissed the motion, ruling a hearing and appointment of counsel were unnecessary and further that the ends of justice would not be served by reaching the merits of the application. Lee again has appealed. That which we said in disposition of appellant’s third motion in Lee v. State, No. 46,181, supra, is applicable and need not be repeated. We simply hold the trial court properly dismissed appellant’s application as an abuse o£ remedy. Reached on the merits, relief could not be granted on the motion. Acts of penal authorities can have no effect upon the validity of a sentence. A 1507 proceeding is designed only to test the propriety of a judgment or sentence. It provides no method for inquiring into the propriety of acts of the penal authorities (Foor v. State, 196 Kan. 618, 413 P. 2d 719; Prescher v. State, 205 Kan. 636, 471 P. 2d 349). The judgment is affirmed. APPROVED BY THE COURT.	[ 80, -6, -35, 94, 11, 96, 42, 20, 65, -13, 118, 115, -87, -118, 0, 57, 91, 99, 84, 121, 88, -73, 119, -63, -14, -69, 73, 93, -69, 95, 102, -76, 76, -16, 74, -11, 38, -56, -29, 22, -82, 5, -71, 68, -40, 8, 52, 111, 6, 14, 49, 30, -29, 106, 26, -58, 72, 44, -37, -17, -56, -80, -38, -57, 107, 0, 34, -124, -100, 39, 80, 110, -100, 56, 1, -24, 115, 18, -122, 116, 111, 91, 37, 98, 66, 33, 85, -17, 41, -104, 14, 20, -99, -58, -39, 88, 121, 37, -105, -35, 117, 54, 47, 126, -17, 4, 17, -84, 13, -102, -80, -109, -51, 61, 2, -69, -29, 5, 32, 113, -52, -26, 92, 119, 123, -101, -113, -76 ]
The opinion of the court was delivered by Kaul, J.: This is an interlocutory appeal from an order denying defendant’s motion for summary judgment based on the grounds that plaintiff-appellee failed to bring her tort action within the time allowed by the applicable statute of limitations. On August 9, 1964, plaintiff-appellee (Sandra S. Gifford, then Sandra S. Crotchett) was injured in an accident while occupying an automobile driven by defendant-appellant (Sandra K. Saunders, then Sandra K. Rrownlee). Plaintiff at the time of the accident was a single, minor, female. She was bom on October 22, 1947. She filed this action on October 15, 1969, seven days before attaining the age of twenty-two years. In her answer defendant alleged that plaintiff was married on January 22, 1966, and attained the age of majority on that date. Defendant alleged that since plaintiff failed to file her cause of action within two years after the date of her marriage her cause was barred under the applicable provision of K. S. A. 60-513 [now 1970 Supp.]. Defendant filed a motion for summary judgment on the ground that plaintiff’s action was barred by the statute of limitations and attached an affidavit setting out the date of plaintiff’s marriage, with a certified copy of plaintiff’s marriage certificate attached. The trial court denied defendant’s motion, ruling that the marriage of plaintiff after her cause of action arose and prior to her attaining the age of twenty-one years did not affect the running of the statute of limitations and thus plaintiff was not required to bring her action within one year of the date of her marriage, or within two years from the time the cause of action arose, whichever is longer. The issue on appeal is accurately stated by die trial court in its certification of the question as a proper subject to be resolved by interlocutory appeal: “Does the marriage of Plaintiff after a cause of action arises and prior to Plaintiff’s attaining the age of 21 affect the running of the statutes of limitations so as to require Plaintiff to bring her cause of action within 1 year from the date of marriage or within 2 years from the time the cause of action arose, which ever is longer?” The two year limitation in which the actions enumerated in 60-513 may be brought is tolled by the provisions of K. S. A. 1970 Supp. 60-515 (a) which read: “If any person entitled to bring an action, other than for the recovery of real property or a penalty or a forfeiture, at the time the cause of action accrued, or at any time during the period the statute of limitations is running, be within the age of twenty-one (21) years, or an incapacitated person, or imprisoned for a term less than his natural life, such person shall be entitled to bring such action within one (1) year after such disability shall be removed, but no such action shall be maintained by or on behalf of any person under the disabilities specified after twenty-two (22) years from the time the cause of action shall have accrued.” (Emphasis supplied.) Notwithstanding the express provision of 69-515 (a), that the running of the statute is tolled with respect to any person “within the age of twenty-one years,” defendant claims the tolling of the statute was terminated under the provisions of K. S. A. 1970 Supp. 38-101 by the marriage of plaintiff. K. S. A. 1970 Supp. 38-101 reads: “The period of minority extends in males and females to the age of twenty- one (21) years: Provided, That every person eighteen (18) years of age or over who is or has been married, shall be considered of the age of majority in all matters relating to contracts, property rights and liabilities, and the capacity to sue and be sued.” We cannot agree with the position taken by defendant. K. S. A. 1970 Supp. 60-515 is a part of Article 5 — Limitations of Actions — of our Code of Civil Procedure. The scope of the article is unequivocally set forth in K. S. A. 60-501 which reads: “The provisions of this article govern the limitation of time for commencing civil actions, except where a different limitation is specifically provided by statute.” It is readily seen that the limitation of time for commencing civil actions is exclusively governed by the provisions of Article 5, except where a different limitation is specifically provided by a statute. Ry no stretch of the imagination can 38-101 be considered a statute specifically providing for a different limitation. K. S. A. 1970 Supp. 38-101 is the initial section of Chapter 38 dealing with infants. It defines the period of minority and the effect of marriage on a person eighteen years of age. It confers the capacity to sue and be sued on such a person. It does not specifically or otherwise prescribe a limitation of time for commencing any civil action. The notes of the Advisory Committee in Gard, Kansas Code of Civil Procedure Annotated, § 60-501, read: “This article is intended to be complete in scope, but it must be recognized, without enumeration, that there are, scattered through other statutes covering substantive law, specified limitations which are not to be disturbed.” (p. 516). See, also, 5 Vernons Kansas Statutes Annotated, Code of Civil Procedure, § 60-501, p. 2. The scope of Article 5 was considered by this court in the recent case of In re Estate of Wood, 198 Kan. 313, 424 P. 2d 528, wherein the nonclaim statute of the Probate Code (K. S. A. 59-2239) was held to be a statute of limitation and within the purview of the exception expressed in 60-501, supra. In that case it was said: “Article 5 of the code of civil procedure dealing with limitations of actions contains twenty-one separate sections relating to various types of claims and special groups of individuals such as those under legal disability. The first section of the article, K. S. A. 60-501, provides that the article shall govern the limitation of time for commencing civil actions, except where a different limitation is specifically provided by statute. This leads us to the question of whether the nonclaim statute, K. S. A. 59-2239, is a statute of limitations as contemplated in the above exception. We believe it is. . . .” (p. 316.) Applying the rationale of In re Estate of Wood, supra, to the instant case, the import of 38-101 is to confer rights of majority and capacity to sue upon certain conditions. It is not a statute of limitation and thus is not within the purview of the exception expressed in 60-501. As an integral part of Article 5, and under the declaration of scope in 60-501, section 60-515, supra, exclusively governs the tolling of the statute with respect to persons under legal disability. The specifically declared disability of being within the age of twenty-one years, under the literal meaning of the statute, can be removed only by attaining the age of twenty-one years. Marriage, under the terms of 38-101, may bestow rights of majority on a person but it does not alter his age. K. S. A. 1970 Supp. 60-515 speaks only to the disability of being within twenty-one years of age, no reference is made to either minority or majority. K. S. A. 60-515 [now 1970 Supp.], was enacted as a part of the new Code of Civil Procedure and became effective January 1, 1964. It replaced G. S. 1949, 60-307, the prior tolling statute. Relative to the issue here, the only change of importance was that legal disabilities were specifically spelled out; whereas only the phrase “any legal disability” appeared in 60-307. In 1965 K. S. A. 60-515 was again before the legislature when the present phrase “an incapacitated person” was substituted for the word “insane” in order to conform the section to new terminology in another act relating to mentally ill persons. We think it worthy to note that the tolling statute has twice been subjected to legislative scrutiny in recent years and no proviso or exception has been made with respect to the effect of the condition of marriage on the disability of being within the age of twenty-one years. Other states have seen fit to insert an exception of marriage in their tolling statutes. As an example see Hicks v. Steele, 309 Ky. 833, 219 S. W. 2d 35. While, as we have noted, this court was called upon to consider the scope of Article 5 in In re Estate of Wood, supra, the precise question presented here is one of first impression. This fact was recognized by United States District Judge Templar, when confronted by the identical question, in Edmonds v. Union Pacific Railroad Company, 294 F. Supp. 1311. Judge Templar ruled that insofar as 60-515 (a), supra, is concerned “a person in Kansas remains a minor as long as she is within the age of 21 years” and correctly forecast that should the proposition be submitted to this court, we would follow what appears to be the majority rule and reach the same conclusion. In his memorandum decision, Judge Templar notes that he has examined cases contained in the annotation in 91 A. L. R. 2d p. 1272, and finds that other jurisdictions have adopted conflicting rules on the issue. He concludes, however, that by far the greater number support the conclusion that the disability is not terminated by marriage. Defendant’s counsel takes issue with Judge Templar on this point. He asserts that most of the cases referred to deal primarily with the proposition of merging or tacking the disability of coverture or marriage upon the disability of infancy and extending the tolling of limitations throughout the course of both disabilities. It is true that most of the cases listed in the pertinent section of the annotation (91 A. L. R. 2d, § 2, p. 1273) deal with double disability, but our examination reveals that, even though the second disability of coverture, when appended to a disability age was usually stricken, the disability of infancy was either by implication or express ruling held not to be terminated by a marriage. We believe Judge Templar correctly characterized the rule followed as the majority rule. We believe the reported case preceding the annotation mentioned, Tavernier v. Weyerhaeuser Company, (9th Cir. 1962), 309 F. 2d 87, 91 A. L. R. 2d p. 1268, is squarely in point. It is one of the few recent cases dealing with the subject. In that case the United States Circuit Court of Appeals, Ninth Circuit, was confronted with the identical question with respect to the effect of the Oregon statutes which substantially parallel our own. The identical language “within the age of 21 years” is found in the Oregon tolling statute (ORS 12.110) with respect to the effect of marriage. ORS 109.520 provides in pertinent part: “. . . all persons shall be deemed to have arrived at the age of majority upon their being married according to law.” The court held the statutory tolling of the statute of limitations, against the cause of action of a person within the age of 21 years, is not affected by the marriage of such person before reaching the age of 21, notwithstanding the other statutory provision. While a considerable portion of the opinion is devoted to a discussion of Oregon statutes dealing with age of minority, with respect to the tolling statute (ORS 12.110) the court concludes: . . In the case before us, appellant does fall within its ‘plain import.’ He is ‘within the age of 21 years.’ When the tolling statute says, with no exceptions, ‘within the age of 21 years,’ we think that all persons within that age should be entitled to rely upon its plain import, rather than required to read it as if it said ‘within the age of majority.’ . . .” (p. 90.) The trial court correctly ruled that plaintiff’s cause of action is not barred by the applicable statute of limitations. The order denying defendant’s motion for summary judgment is affirmed. The case is remanded for further proceedings. It is so ordered.	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The opinion of the court was delivered by Valentine, J.: This was an action brought by the Harrison National Bank of Cadiz, Ohio, against Joseph T. Ellieott, assignee of the Riley County Bank of Manhattan, Kansas, for the purpose of having a trust declared to the extent of $2,000, and to require the alleged trustee to pay that amount to the plaintiff. The plaintiff alleged in its petition, among other things, the following: On June 25, 1881, Mary C. Inskeep executed a promissory note to the Riley County Bank for the sum of $2,000, payable in six months after date, with interest after maturity at the rate of 12 per cent, per annum. This note was immediately sold and transferred, by the indorsement of the cashier of the Riley County Bank, to the plaintiff. About December 1, 1881, the plaintiff transmitted this note to the Riley County Bank for collection. About December 14, the cashier of the Riley County Bank wrote to the plaintiff, falsely stating that the note was paid, when in fact it had not been paid, and also sent a draft of that date for the sum of $2,400 on its correspondent in New York city. Two thousand dollars of this draft represented the Inskeep note, and $400 thereof represented another claim which has nothing to do with the casé. At the time this draft was drawn, and ever since, the Riley County Bank did not have any funds on deposit with such correspondent. The draft was properly presented for payment, and payment not being made, it was protested and returned to the Riley County Bank, the cashier of the Riley County Bank having sent a telegram to the plaintiff, stating that the draft had been drawn on the wrong bank. About December 25, 1881, when the note became due, the Riley County Bank returned it to Mary C. Inskeep, and took from her a new note therefor, executed to the Riley County Bank for $2,000, due in six months, which new note the Riley County Bank “converted to its own use.” About December 26,1881, the Riley County Bank made an assignment for the benefit of its creditors, and Joseph T. Ellieott, the assignee, now has the possession of the assets of such bank. Upon these facts, the plaintiff prayed judgment that Joseph T. Ellicott be declared a trustee for the sum of $2,000; that such sum be declared a trust fund; and that Ellicott be ordered to pay the same to the plaintiff before he is permitted to pay other claims against the Eiley County Bank. The defendant demurred to this petition, upon the ground that it does not state facts sufficient to constitute a cause of action, and the court below sustained the demurrer. The plaintiff duly excepted, and now brings the case to this court and asks that the decision of the court below sustaining such demurrer be reversed. The first and main question arising in this ease is this: Has the defendant, Joseph T. Ellicott, the assignee of the Eiley County Bank, the fund in his hands, impressed with the character of a trust fund, which belongs in equity to the plaintiff in this case? And involved in this question are some minor and subordinate questions, which we shall consider along with the main question in the case. Now a trust is not merely a right to recover a judgment because of the commission of some wrong in violation of some duty arising upon contract, or statute, or natural or moral obligation; but it is an equitable right, title or interest in property, real or personal — the legal title to the property being in some other person. (2 Story’s Eq. Jurisp., §964.) In the present case, the plaintiff claims that the defendant has a fund in his hands of $2,000, impressed with the character of a trust, and to which fund the plaintiff has an equitable right, paramount and superior to thé rights of all the other creditors of the Eiley County Bank. And the plaintiff claims that it has such a right to this fund that it may take the same from the defendant, the assignee of the Eiley County Bank, and leave the other creditors to suffer. Now if. the defendant has any such trust fund in his hands, when and where did he obtain the same? There is no allegation in the peti tion that either the Riley County Bank or the defendant, its assignee, ever received a dollar in money, or any other sum, in which the plaintiff had any equitable interest. The Riley County Bank received a note which belonged to the plaintiff; but.this note was never placed in the hands of the defendant, but on the contrary it was returned to the maker thereof, Mrs. Inskeep; and besides, the plaintiff is not asking for the return of such note, but is asking for the return of a trust fund of $2,000. It is also true that the Riley County Bank received a new note from Mrs. Inskeep, for the sum of $2,000; but there is no allegation, unless we resort to presumption or inferences, that this note was ever placed in the hands of the defendant. Besides, the plaintiff is not asking to recover the possession of this new note, but is asking to recover said fund as aforesaid. It is alleged in the plaintiff’s petition that the Riley County Bank converted this new note to its own use; but how it converted the same to its own use is not stated or shown in any manner, except that the new note was executed to the Riley County Bank, instead of to the plaintiff. There is no allegation that the Riley County Bank, or the present defendant, ever received one dollar, or any other sum, on this new note. From the allegations of the petition, we think it may fairly be presumed that the defendant has this new note in his possession; but we think it must also be presumed that he has never collected or received any money or other valuable thing thereon. And whether this new note is of any value, or not, the allegations of the petition do not show. But suppose it is worth its face; and suppose it is now in the hands of the defendant, uncollected; and suppose that the plaintiff has an equitable right thereto: that would not enable the plaintiff in this case to recover its value from the defendant and leave the other creditors to suffer. Other creditors besides the plaintiff have rights to the general funds and assets of the bank, and their rights as well as the plaintiff’s must be guarded and protected. The most that can be done in such a case by the plaintiff is to recover the note itself from the defendant, and then sue the maker thereof. Or perhaps one suit against both the defendant and the maker would be better. After a careful consideration of the case, we think the judgment of the court below is correct. We would refer to the following authorities as having some application to this case: The People v. Merchants’ and Mechanics’ Bank, 78 N. Y. 269; same case, 34 Am. Rep. 532; Morse on Banks and Banking, 384, et seq. The judgment of the court below will be affirmed. All the Justices concurring.	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The opinion of the court was delivered by Horton, C. J.: The first question presented in this case for determination is: Did the court below err in proceeding to hear the matter before it on motion? The practice of granting relief, in cases of this nature, by summary application upon motion, is fully established. (McDonald v. Falvey, 18 Wis. 599, and cases there cited; Wilson v. Stilwell, 14 Ohio St. 464; McGregor v. Comstock, 28 N. Y. 237.) In many of the courts, however, it is held that where the evidence is conflicting upon material questions of fact arising upon the motion, the party seeking relief should be left to an action, provided it can be obtained in that form, rather than determine the question upon ex parte affidavits. (McDonald v. Falvey, supra; Hill v. Herman, 59 N.Y. 396.) In this case the latter authorities do not apply, as every question of fact was heard upon oral evidence in open court, and the witnesses subjected to cross-examination. We do not think the court erred in refusing to make the motion more definite and certain, because it alleged that the entry of satisfaction was sought to be set aside on account of the fraud of the said O. C. Chapman, and the precise nature of the fraud was shown by the affidavit of Joseph Sylvester filed along with the motion, and of this affidavit the defendants were notified by a notice specially calling their attention to the same long before the motion was called for hearing. The most serious question in the case is the ruling of the court in admitting the evidence of Elmer Crane as to the declarations made to him by the witness, Sylvester. Sylvester was produced as a witness on the part of Mrs. Blakeman, and testified, among other things, that he was threshing at Frye’s in July, 1881; that Chapman was there; that he talked with him, and it was then arranged between him and Chapman that he (Sylvester) was to go to Marion Center, see Crane, and assist Chapman in carrying out the fraudulent scheme of inducing Crane & Brewerton to accept a conveyance of his (Chapman’s) land in satisfaction of all the judgments rendered against him. Chapman testified that he was at Frye’s at the time Sylvester was there threshing; that he went to see how a threshing machine, which was a new one, was working; that he also had an idea of trading horses with Sylvester; that that was all the business he had there; that he talked with him about the machine and horses, but nothing further occurred between them; that he did not have any conversation with Sylvester at the time about anything in regard to his land subsequently conveyed to Crane & Brewerton. After the defense had rested, Elmer Crane was called by Mrs. Blakeman, and testified he remembered of the threshing at Frye’s; that he was at the time at work for Sylvester, and saw Chapman at Frye’s in the afternoon. Mrs. Blakeman’s attorneys then asked him, “What conversation did you and Sylvester have concerning the nature of Chapman’s business with him, [Sylvester,] after Chapman had left?” The wit-, ness answered, “I asked Sylvester what was Clark Chapman here for, and Sylvester answered that he wanted him to come to the Center to see about a piece of land that Mr. Chapman had mortgaged to Crane.” All of this was objected to. The court overruled the objections, to which exceptions were properly taken. Counsel for Mrs. Blakeman insist that the evidence admitted was competent as the declarations of a co-conspirator in reference to the common object of the fraudulent purpose. We think otherwise. The evidence was not the declaration of Sylvester in execution of the common purpose, or explanatory thereof; nor was it a statement which unfolded the extent, scope and influence of the fraudulent purpose. Indeed, it was not the words of Sylvester at all; it was the statement of Sylvester as to what Chapman had said to him. Therefore it was hearsay — nothing more. Whatever .may have been the pretext under which this evidence was offered, or whatever excuse may now be presented in favor of its competency, it is apparent that it was introduced to establish the fraudulent design of Chapman, or to fortify the testimony of Sylvester. If presented to establish the unlawful purpose of the parties, it was erroneously received. (1 Greenl. on Ev., 12th ed., §§110, 111; 2 Wharton on Ev., §1205; Cuyler v. McCarty, 40 N.Y. 268; Wharton’s Crim. Ev., § 698.) If presented to fortify the testimony of the witness Sylvester, it was also inadmissible. “It is the general and almost universal rule, that evidence of what the witness has said out of court cannot be received to support his testimony. Corroborative statements of this character are very easily manufactured, and if admitted may oftentimes be made the means of great imposition.” (The State v. Petty, 21 Kas. 54.) This evidence does not come within the exception noted in the last case, and upon no hypothesis that we can conceive of was it competent. Considering the conduct and statements of Sylvester upon the witness stand, and in view of the fact that the alleged unlawful purpose of Chapman was sought to be mainly established by his testimony, its admission was very prejudicial. This evidence may have had much weight with the trial j udge. Under the circumstances of this case, we do not think it was necessary for Mrs. Blakeman to offer to reconvey the land taken in satisfaction of the judgments, prior to filing her motion. On account of the reception of incompetent evidence highly prejudicial, the judgment of the district court must be reversed, and the cause remanded. All the Justices concurring.	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The opinion of the court was delivered by Valentine, J.: The defendant was convicted at the September term, 1883, of the district court of Pottawatomie county, of the offense of selling intoxicating liquor without a permit, in violation of the prohibitory liquor law of 1881. The information contained twenty-seven counts. The prosecutor elected as to which particular transaction he would rely upon for a conviction under each separate count. After the court had instructed the jury, and they had been in charge of their bailiff and not allowed to separate from the evening of September 22 until the morning of September 24, the jury stated to the court that they were unable to agree because one of their number thought that they ought not to consider the teátimony of a certain witness, because the court was wrong in allowing such witness to testify; and thereupon the court, over the objections of the defendant, gave the jury additional instructions, and to each instruction the defendant at the time objected and excepted. The testimony of this witness related to the ninth and tenth counts of the information. ■ 'The jury found the defendant- guilty under the seventh, eighth, ninth and tenth counts. The court sentenced the defendant, on the verdict under each of these four counts, to pay a.fine of-one hundred dollars and costs; the judgments aggregating the sum of. four hundred dollars and costs; and the defendant was also ordered to be committed until-the fines and costs were paid. ‘ In addition to the above sentences and judgments, the court required the defendant to give security in the sum of $500 to be of good behavior for the term of one year from the date of said judgments, or to stand committed until such security be given. The defendant brings the case to this court on appeal; and in his brief makes the following points: “1. We think the court erred when it instructed the jury the second time, and in its instructions the said second time, over the objection of the appellant, and after the jury had been out two days. “ 2. The court erred in sentencing the defendant, Chandler, on more than one count. “3. The court erred in sentencing the defendant to give security in the sum of $500, to be approved by the court or the judge thereof, or by the clerk in the absence of the judge, to be of good behavior for the term of one year from that date, or to stand committed to the jail of Pottawatomie county, state of Kansas, until such security be given.” We shall consider these several propositions in their order. I. We think, as a general rule, where the jury in a criminal case return into court in the presence of the parties and say they cannot agree, it is competent for the court, of its own motion, to give them any additional instruction, proper in itself, which may be necessary to meet the difficulty in their minds. (The State v. Pitts, 11 Iowa, 343; Hogg v. The State, 7 Ind. 551; Thompson on Charging the Jury, §99, p. 130. See also Foster v. Turner, ante, p. 58.) The instructions given were proper in themselves; it appears that the defendant was present at the time they were given; and it does not appear that the court went beyond the necessities of the case in giving them. Therefore the court did not err in giving' them. The defendant was probably guilty beyond all doubt, and this juror was very unreasonable in refusing to consider the testimony of the witness.- II. By the practice everywhere, distinct transactions in cases of misdemeanor may be joined in separate counts in one information or indictment to be followed by one trial for all, and a conviction for each of the several offenses, the same as though all such offenses were charged in the same terms in separate informations or indictments, subject, however, to some practical limitations imposed by judicial - discretion. (1 Bishop on Cr. Pro., §452, and cases there cited; In re Donnelly, 30 Kas. 424; In re Macke, Petitioner, ante, p. 54.) In other words, separate public offenses, where they are all misdemeanors of a kindred character, and charged against the same person, may generally be joined in separate counts in one information, to be followed by one trial for all, with a separate conviction and punishment for each, the same as though all such offenses were charged in separate informations and tried at different times. Of course a separate penalty should be imposed for each separate offense, and not an aggregate penalty for all the offenses. The judgment was properly rendered in the present case. The aggregate amount of the penalties imposed in the present case, however, does not exceed the maximum punishment that may be imposed by law for one offense of the character charged in the information, and therefore the case does not even come within the rule enunciated in the case of The People, ex rel. Tweed, v. Liscomb, 60 N. Y. 559. III. The authority for the order of the court requiring the defendant to give security for his good behavior is found in § 242 of the criminal code, which reads as follows: “Sec. 242. The court before which any person shall be convicted of any criminal offense, shall have power, in addition to the sentence prescribed or authorized by law, to require such person to give security to keep the peace, or be of good behavior, or both, for a term not exceeding two years, or to stand committed until such security be given.” The court simply followed the law; it simply followed a statute which is open for every person to read. The judgment of the court below will be affirmed. All the Justices concurring.	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The opinion of the court was delivered by Horton, C. J.: This was a proceeding under chapter 177, Session Laws of 1879, (Comp. Laws of 1879, pp. 303-305,) to determine the boundaries of certain tracts of land. A motion was made by the plaintiff in error to set aside all the proceedings of the county surveyor, on the ground that chapter 177 is unconstitutional and void. This was overruled proforma by the district court, and judgment for costs taxed against the plaintiff in error. Complaint is made of this ruling. The sole question presented is, whether the provisions of chapter 177, Laws of 1879, in controversy, are in violation of § 16 of art. 2 of the constitution; or in other words, does said chapter 177, so far as the said provisions are concerned, contain more than one subject, and is that subject sufficiently expressed in its title ? The title is as follows: “An act amendatory of and supplemental to chapter 25 of the General Laws of 1868.” Chapter 25 of the General Laws of 1868 is an act entitled “An act relating to counties and county officers.” Art. 12 of that act prescribes, among other things, the duties of county surveyors relative to the boundaries of lands, the establishment of the center of government sections, and the reestablishment of missing corners. Apart from §1, said chapter 177 provides additional rules for the guidance of the officers in the performance of those duties, and gives parties aggrieved by the performance thereof the right to appeal. In Comm’rs of Sedgwick Co. v. Bailey, 13 Kas. 600, the title under consideration was “An act amendatory of and supplemental to an act entitled ‘An act defining the boundaries of counties/ approved March 3, 1868.” It was held in that case that this title was broad enough to authorize the changing of county lines, the establishment of county lines, and the creation of the boundary lines of new counties —substantially the creation of new counties. It was further held, however, that the title of the act was not broad enough to include assessment or taxation of any kind. Within the reasoning there adopted, that the title in that act was comprehensive enough to authorize the defining and establishing of the boundaries of either old or new counties, and within the decision of Philpin v. McCarty, 24 Kas. 392, we think the constitutionality of the sections of said chapter 177 relating to the duties of county surveyors and the determination by them of boundaries of lands can be sustained against the objections made. , We express at this time no opinion in regard to §§ 1 and 4 of said chapter 177. The judgment of the district court must be affirmed. All the Justices concurring.	[ -76, 126, -36, -68, -85, 32, -96, -100, 72, -87, -93, 115, -87, -38, -108, 51, -13, 111, 53, 106, -60, -10, 19, -29, -78, -13, -57, 79, -79, 79, -18, 95, 76, 36, -54, 85, 70, -86, -123, -34, -114, -114, -85, 77, -47, -64, 52, 108, 90, 79, 117, -97, -77, 44, 26, -61, -88, 44, -55, -84, -112, -71, -98, -99, 127, 13, 35, 103, -118, 3, -56, 46, -104, 56, 0, -8, 115, -90, -110, 87, 15, -103, 8, 102, 103, 33, 109, -17, -88, -72, 14, -66, -115, 39, -111, 24, 107, 8, -65, -99, 116, 18, 3, 126, -22, 84, 19, 108, -123, -117, -108, -95, -113, 100, -120, 67, -53, -89, 16, 113, -58, -82, 93, -26, 17, 27, -114, -52 ]
The opinion of the court was delivered by Valentine, J.: This was an action brought by O. C. Roby against M. J. Verner, sheriff of Greenwood county, and T. P. Hicks, to enjoin the levy of an execution issued by a justice of the peace of Greenwood county in favor of Hicks and against Roby, and held by said sheriff; and also possibly to enjoin the judgment upon which the execution was issued. A temporary injunction was granted by the probate judge of Greenwood county, and upon motion of the defendants this injunction was dissolved by the district court; and of this ruling the plaintiff Roby now complains. It appears from the record that on July 13,1882, Hicks commenced an action against, Roby, before W. C. Huffman, a justice of the peace of Eureka township, Greenwood county, for $60, for work and labor. The trial was set for July 22, 1882, at one o’clock p. M. Under the statutes, both parties had until two o’clock p. m. of that day to make their appearance before the justice of the peace. Sections 17 and 113 of the justices code read as follows: “Sec. 17. The parties are entitled to one hour in which to appear, after the time mentioned in the summons for appearance, or to which the case is adjourned, but are not bound to remain longer than that time, unless both parties have appeared, and the justice, being present, is engaged in the trial of another cause. In such case the justice may postpone the time of appearance until the close of such trial.” . “Sec. 113. Judgment that the action be dismissed without prejudice to a new action may be entered with costs in the following cases: First, when the plaintiff voluntarily dismisses the action before it is finally submitted; second, when he fails to appear at the time specified' in the summons, or within one hour thereafter, or upon adjournment.” The statutes also provide that a justice of the peace may require security for costs in certain cases. (Justices Code, §§186, 187.) In the present case, the justice required that the plaintiff Hicks should give security for costs. At the time set for trial, we would think from the record, that both parties appeared. Roby certainly appeared; and there is nothing in the case that shows that Hicks did not appear. The justice’s docket shows, among other things, as follows: “July 23, 1882, parties appeared in person, and by H. Ellis, attorney for plaintiff, and Clogston & Fuller, attorneys for defendant; and on motion of plaintiff’s attorney this cause is continued to July 28, at 9 o’clock, in order to enable this plaintiff to file his bond for security for costs.” And Dr. J. B. Pierce testified, among other things, as follows: “July 22, I saw Hicks, thé plaintiff, in justice court— several times about town.” The case was continued from July 22, 1882, to July 28, 1882, at 9 o’clock, a. m. On July 28, 1882, at the proper time, a trial was had before the justice of the peace, without a jury, but in the absence of Roby and his counsel, which trial resulted in a judgment in favor of Hicks and against Roby for $59 and costs. Upon this judgment an execution was issued and placed in the hands of M. J. V^fner, sheriff of Greenwood county, and Verner being about to levy upon the property of Roby, Roby commenced this action to enjoin the same; and he commenced- the action solely upon the ground that the judgment rendered by the justice of the peace was ineffectual and void. The record of the justice of the peace does not show that the judgment was or is void; but on the contrary, would seem to show that it was and is valid. The other evidence was conflicting. The evidence introduced on the part of the sheriff and Hicks would seem to show that the judgment was valid; and whether the evidence introduced by Roby would show that it was void, is at least questionable. From the record of the justice, and the other evidence introduced, we would think that the material facts, other than those already mentioned, are substantially as follows: On July 22, 1882, at the time set for the trial of the case, both parties appeared. The justice required that the plaintiff should give security for costs, and delayed the trial in order that he might do so. The justice told Roby and his counsel that he would notify them if the plaintiff procured such security, and they retired from the justice’s office and went to the office of Roby’s counsel. Hicks attempted to get such security, but did not do so within one hour after the time set for the trial of the case, and in fact did not do so till July 28,1882. After one hour had elapsed, Roby paid his counsel, and discharged them, though it does not appear that either Hicks, or his counsel, or the justice of the peace, had any notice of this fact. Some time after the hour had elapsed, but just when is not shown, the justice, on his own motion, continued the case till July 28,1882, as before stated, and the justice gave notice of such continuance to the persons who had been Roby’s counsel, and Roby himself also had actual notice of such continuance. The trial was had on the 28th, in. the manner and with the result already stated, the defendant Roby and his said counsel refusing to make any further appearance in the case.. We think the judgment of the justice of the peace is not void. It is valid upon its face; besides, the justice had jurisdiction over both the parties and over the subject-matter of the action. The justice never dismissed the action, and no one ever told either Roby or his counsel that the action had been dismissed; but, on the contrary, they knew that Hicks and the justice both claimed that the action had not been dismissed, and that it was still pending before the justice up to the time of the trial on July 28, 1882. Some of the proceedings of the justice may have been irregular, and so very irregular that the judgment would be reversed if the irregu larities were properly shown in a proper proceeding; but they were not so irregular as to render the judgment actually and utterly void. The decision of the district court dissolving the temporary injunction was probably right for still other reasons than those we have mentioned, and, being right, it will be affirmed. All the Justices concurring.	[ -16, -32, -15, -36, 106, 97, 32, -104, 83, 35, -32, 83, -87, -122, 5, 35, 59, 109, 85, 91, -60, -74, 87, 97, -109, -14, -63, -59, 55, 111, -26, -33, 76, 32, 74, 85, -58, 66, -55, -44, -50, 3, -120, -32, 83, 0, 48, 121, 18, 11, 21, -82, -21, 46, 24, -49, 40, 44, -53, -65, 80, 113, -97, 5, 15, 4, -109, -91, -104, -121, 120, 62, -104, 53, 0, -8, 115, -90, -122, 84, 105, -71, 40, 114, 99, 1, 68, -49, -24, -88, 22, 114, -99, -121, -68, 56, 11, 13, -74, -103, 123, 48, -122, -10, -27, -107, -112, 36, 34, -50, -110, -77, -113, 124, -102, -49, -61, 1, 112, 69, -113, -14, 85, 70, 19, 91, -101, -44 ]
The opinion of the court was delivered by Horton, C. J.: It is clearly apparent from the findings of the trial court, that Fortescue had no authority from the county commissioners of Leavenworth county to execute the agreement of August 1, 1879, providing that if any of the bonds issued by Leavenworth county to the Platte City & Fort Des Moines railroad company should be compromised at a greater figure than twenty-five cents, Hamlin should have the full benefit thereof. When Fortescue appeared before the board on September 1, 1879, and made the request to have the accrued interest on the bonds included with the principal, he did not call the board's attention to his agreement of August 1, or present any copy thereof; and the order entered upon his request merely provided that new bonds were to be issued in lieu of the old ones for principal and interest, at twenty-five cents on the dollar. Neither the contract of August 1, 1879, nor the letter of Hamlin accompanying the bonds, was ever brought to the attention of the board of commissioners while in session, prior to the issuance of the new bonds to Hamlin and his acceptance thereof. No member of the board seems to have known anything about the contract of August 1, before the issuance of the new bonds, and only the chairman and the county clerk saw the letter of Hamlin accompanying the old bonds. As “the powers of a county are vested in a board of commissioners as a corporate entity, and not in the commissioners separately and as individual officers,” (Railway Co. v. Comm’rs of Anderson County, 16 Kas. 302,) the knowledge of the chairman of the board, and of the county clerk, of the contents of the letter of Hamlin accompanying the bonds, did not bind the board or the county of Leavenworth, or authorize the chairman or county clerk to issue any bonds upon the terms therein stated. The board of county commissioners of Leavenworth county never authorized the contract of August 1, 1879, never ratified it after it was executed, and never accepted the bonds of Hamlin upon condition that if like bonds were compromised at a greater sum than twenty-five cents on the dollar he should have the full benefit of the same; therefore the plaintiff, upon the findings of fact, was not entitled to judgment against the board of county commissioners. Again, for another reason he was not entitled to judgment. The bonds were not compromised under the terms of the contract of August 1, 1879, or of the letter accompanying the bonds. More of this hereafter. Hamlin has filed a cross-petition in error, asking, upon the record before us, that judgment be rendered in his favor and against the defendant W. M. Fortescue. His argument is, that if Fortescue exceeded his authority and the board has not ratified his acts, as he has been injured thereby, that Fortescue is liable. It appears from the findings that the bonds held by Hamlin were never compromised under the terms of the contract of August 1, 1879, or the letter accompanying the bonds and delivered to the county clerk. On the first of September, 1879, Fortescue appeared before the board of county commissioners, at a regular session of the board, and on behalf of Hamlin requested the board to include the accrued interest on the bonds which he presented, and thereupon an order was entered that new bonds be issued in lieu of the old bonds, for principal and accrued interest at 25 per cent. Under the terms of the contract of August 1, 1879, and the letter accompanying the bonds, Hamlin was entitled, in the first instance, to have his bonds compromised at 25 cents flat only. Under the order of the board of county commissioners he was allowed the accrued interest on his bonds, and at the time of surrender there was $175 of interest due on each of the bonds. Instead therefore, of -Hamlin obtaining new bonds for $1,000, to which he was entitled under the contract of August 1,1879, he actually received new bonds to the amount of $1,175. After accepting these bonds he cannot say that Fortescue is liable in making a contract without authority therefor, because such contract was changed with the consent of Hamlin, or what is the same, Hamlin obtained a compromise of his bonds upon better conditions .in the first instance than those proposed to him by the agreement of Fortescue, and having accepted the new bonds, he is in no condition now to complain. Counsel however urges that the finding that Fortescue was Hamlin’s agent to secure the accrued interest to be added to the bonds issued to him, is not sustained by the evidence, because he alleges his action in that regard was without his knowledge, consent, or ratification. We think the evidence does not affirmatively show that Fortescue made the request to the board to include the accrued interest on Hamlin’s bonds, under his direction; but Fortescue did not appear before the board for his own benefit, or for the benefit of the county of Leavenworth, but in the interest of Hamlin solely; and when Hamlin accepted the new bonds with the knowledge that he was obtaining bonds to the amount of $1,175, in place of bonds to the amount of $1,000, as called for by his contract with Fortescue, he accepted such bonds with the knowledge that he had been allowed the accrued interest on his old bonds, and his acceptance of the new bonds under the circumstances must be regarded as a ratification of the action of Fortescue in appearing before the county board and obtaining the allowance of accrued interest. At the time of compromising the bonds, undoubtedly Hamlin congratulated himself upon obtaining better terms in the first instance than his contract called for, and having, by his acceptance of the bonds, abandoned his old contract executed by Fortescue, now that the county board has compromised other bonds at a greater figure than twenty-five cents flat, he cannot resurrect his old contract and seek to make Fortescue liable. Further, it is somewhat doubtful whether the finding of the court that Fortescue stated and represented he had the authority to make the contract he executed to Hamlin was sustained by the evidence introduced upon the trial. Fortescue testified that when he called upon Hamlin at his home in East Bloomfield, New York, he had with him the printed pamphlet or circular of the ■ board of commissioners of Leavenworth county, and that he showed this pamphlet to Hamlin. This acquainted Hamlin with the terms offered by Leavenworth county for the compromise of its bonds. Judgment against Fortescue will be denied. The judgment of the district court must be reversed, and the cause remanded with the direction to enter judgment upon the findings in favor of the board of county commissioners. All the Justices concurring.	[ 54, 110, -8, -98, -40, 96, 58, 25, 75, -31, 36, 83, -119, -4, 1, 123, -73, 45, 84, 104, 68, -13, 55, 97, -46, -13, -33, -51, -77, 91, -76, -33, 76, 48, -118, 21, -58, -54, -57, -100, -50, -115, -87, -24, -39, -64, 48, 111, 52, 90, 17, 58, -13, 42, 28, -29, 105, 42, -33, -117, -112, -15, -70, -57, 93, 21, 19, 0, -104, 5, 104, 46, -112, 49, 13, -8, 83, -90, -122, -12, 13, -71, 8, 118, 107, 33, 116, -17, -92, -50, 14, -78, 13, -25, -106, 25, -30, 1, -74, -99, 85, 22, -121, -4, -29, 13, 28, 108, 0, -53, -110, 71, -113, 60, -112, 31, -5, -91, 52, 81, -49, -14, 93, 100, 56, 27, -114, -68 ]
The opinion of the court was delivered by Brewer, J.: But a single question requires notice. Judge Houck, the regular judge of the district court, had been of counsel in many cases standing for trial at the July term, in consequence whereof, on motion of a member of the bar an election was held for the purpose of electing a judge pro tem. to try any and all cases in which Judge Houck might be interested, and at such election Hon. A. L. Green was elected pro tem. judge. Thereafter, when this case, was called for trial, counsel moved to have the place of trial changed to some other district, on the ground that Judge Houck had. been of counsel and was therefore disqualified to sit. This motion was overruled, and this is the error complained of. That when the district judge is disqualified to sit in the trial of any case it is his duty, upon the application of either party, to change the place of trial to some pther district, has been settled, and is not questioned. (Rld. Co. v. Reynolds, 8 Kas. 623.) But the contention is that the plaintiff in error was too late in his application; that it should have been made at or before the election of the pro tem. judge. We think this is a mistake. It does not appear from the record that either counsel or client in this case participated in such election, or was present or assented thereto. Now the right of a party to a change of the place of trial cannot be taken away by the action of others. It is a personal right, of which he can be deprived only by his own action. Unless he personally, or by his counsel, participates in the election of the pro tem. judge, he has done nothing to waive his right. And even if his counsel were present and participated, .it would be doubtful whether such participation was a waiver of the right, unless this case was expressly named. The action of counsel might well be considered as an exercise of his privilege as a member of the bar, and not as the waiver of any rights of clients for whom he might appear in any particular case. It is however unnecessary to determine that question, for as the record stands there is nothing to show that they were either present or participated in the election. There is nothing in the cases of Davis v. Wilson, 11 Kas. 80, or Higby v. Ayres, 14 id. 338, opposed to these views, for in neither of them was presented any application for a change of venue. The judgment of the district court will be reversed, and the case remanded for a new trial. All the Justices concurring.	[ 112, -22, 93, -33, 26, 96, 54, -100, 88, -127, -89, 83, -23, -101, 16, 121, -77, 109, 85, 123, -41, -74, 87, 99, -74, -13, -37, -33, -80, 109, -9, 127, 76, 48, -62, -43, 70, -56, -59, 84, -118, 7, 27, 73, -56, 1, 48, 114, 82, 15, 117, -50, -13, 44, 25, -61, 104, 44, 89, 53, 80, 57, -100, -115, 111, 5, -77, 52, -100, -122, 120, 122, 24, -71, 3, -8, 114, -90, 6, -73, 111, -72, 40, 98, 96, -127, 45, -81, -88, -87, 15, 62, 29, -90, -111, 8, 107, 8, -74, -67, 127, 30, 39, 126, -25, 69, 25, 36, 13, -50, -44, -75, -49, 33, -114, -61, -21, 3, 16, 101, -116, -28, 92, 87, 51, -37, -114, -124 ]
The opinion of the court was delivered by Horton, C. J.: This was an action to recover damages on account of certain personal injuries received by Fox, plaintiff below, while engaged in the service of the railroad company, by the alleged negligence of the company and its employes. The evidence in behalf of Fox tended to show that on March 3, 1883, Robert Lovell was the foreman, or boss car, repairer, in the yards of the railroad company at St. Joseph, Mo.; that Harris Harrington was the yard master of the company, and had control of the movement of cars at the same place; that Lovell had under his orders two day repairers and one night repairer; that Fox was one of the day repairers; that Fox and Edward Powers were ordered by Lovell to go under a car in the yards of the company in the said city of St. Joseph for the purpose of repairing the car; that they took with them the tools necessary to make the repairs; that while they were working under the car, other cars pushed this car along upon the track in such a manner as to cause the car to break and mangle the left arm of Fox; that Fox bad nothing to do with the movement of the cars pushed against the ear under which he was working; that he did not know and could not have known, in the situation he was working, that cars were being pushed against the car under which he was, until they struck the car; that no notice or warning from Lovell, or by signal bell or otherwise, was given to him of the approach of the cars; that it was not in his power to prevent the collision of the cars; that at the time, Robert Lovell, the foreman, was present, overseeing the work; that by the order of Lovell the ear which was pushed over plaintiff’s arm was set on the track at the place where it was being repaired; that four or five days after the injury, Lovell was discharged from the employ of the company; that the latter had frequently applied to the company for flags to designate cars that were to be repaired, but up to this time they had not been furnished; that at this time the only means that Harrington, the yard master, had of knowing the car repairers were at work, upon a car, was by the foreman or boss repairer telling him when and where he was going to repair a car; that after the injury to Fox, signal flags were used to designate the cars that were being repaired. It is claimed for the railroad company that the petition failed to state any cause of action; that the trial court erred in overruling the demurrer to the evidence of Fox; that the court erred in refusing to direct the jury to find for the railroad company; that the court erred in the instructions given and excepted to; and finally, that the court erred in refusing to enter judgment for the company upon the special findings of fact returned by the jury. The principal question in this case is, whether the railroad company was guilty of negligence toward Fox. The injury complained of occurred in the state of Missouri, and it is conceded that the common law as to the liability of master for injuries to servants is in force in that state. The contention of the railroad company is, that the petition attempted to state a right of action based on an injury caused by the negligence of a fellow-servant; that all the acts of negligence charged or proved were purely and simply acts of negligence of a fellow-servant, for which, under the common law, the railroad company was not liable. In support of this, it is further contended that the foreman or boss car repairer was a fellow-servant with the subordinate employes under his control. We do not concur in this view. In Railroad Co. v. Salmon, 14 Kas. 524, in speaking of the officers, agents and servants of a railroad company empowered to furnish proper implements, machinery and materials for the employes to operate with in accomplishing their work, it was said that— “ These higher officers, agents or servants cannot with any degree of propriety be termed fellow-servants with the other employes, who do not possess any such extensive powers, and who have no choice but to obey such superior officers, agents, or servants. Such higher officers, agents or servants must be deemed in all cases, when they act within the scope of their authority, to act for their principal, in the place of their principal, and in fact, to be the principal. We also think that it is the duty of a railroad company, with reference to both passengers and employes, to exercise reasonable care and diligence in making sufficient regulations for the safe running of trains, so as to avoid injury from collision or from any other source.....If an employe performs the duties of of one of the higher officers, agents or servants of which we have already spoken, the company is generally responsible for his negligence, whatever may be his grade.” One of the exceptions to the general rule of the common law, that the master is not liable to one employe for the neg ligence of a co-employe in the same service, arises from the obligation of the master, whether a natural person or a corporate body, not to expose the servant, when conducting the master’s business, to perils or hazards against which he may be guarded by proper diligence upon the part of the master. If it were otherwise, the master would be released from all obligation to make reparation to an employe in a subordinate position for any injury caused by the wrongful conduct of the persons placed over him, whether they were fellow-servants in the same common service, or not. In Railroad Co. v. Holt, 29 Kas. 152, it was said: “The rule is, even under the common law, that a master employing servants upon any work, particularly a dangerous work, mpst use due and reasonable diligence that he does not induce them to work under the notion that they are working with proper and safe machinery, while employing defective and dangerous machinery; and if an employe is injured on that account, and without fault of his own, the master is liable in damages.” In Railroad Co. v. Moore, 29 Kas. 633, it was said: “In all cases at common law, a master assumes the duty toward his servant of exercising reasonable care and diligence to provide the servant with a reasonably safe place at which to work. . . . And at common law, whenever the master delegates to any officer, servant, agent,- or employe, high or low, the performance of any duty which really devolves upon the master himself, then such officer, servant, agent or employe stands in the place of the master and becomes a substitute for the master — a vice-principal — and the master is liable for his acts or his negligence.” In the late case of Railroad Co. v. Moore, ante, p. 197, it was decided that— “At common law, a railroad company is liable to a brakeman for injuries caused by the negligence of the road master or foreman, whose duty it was, over a portion of the road, to direct repairs and keep it in safe condition.” These authorities and many others which might be cited, establish, we think, that it was the duty of the railroad company to make such provisions and regulations for the safety of the subordinate employes under the control and direction of Lovell as would afford them reasonable protection from the dangers incident to the performance of their respective duties. It was therefore the duty of the company to protect them from the dangers to which they were exposed from moving trains while engaged in the work of repairing cars. Without such protection they were, while at work, constantly in imminent danger. If the company had furnished flags to designate the cars that were being repaired, and these had been placed in the center of the rails near the car under which Fox was working, they would undoubtedly have prevented the injury complained of; but the company furnished no flags. It left everything concerning the work of repairing the cars, the control of the subordinate employes, and their protection while engaged in their work, to Lovell. He was not only the foreman to direct the work of his subordinates, but he was the person above all others to provide that they had a reasonably safe place at which to work; and while he was present, overseeing their work, upon him devolved the duty of using ordinary care and diligence to prevent them from being injured,.mangled or crushed by other'trains or cars moving the one under which he had placed them. It is immaterial, therefore, whether Lovell be called superintendent, middleman, boss repairer, or foreman. The duty devolved upon him to direct his subordinates to work in a peculiarly dangerous place, where by the exercise of reasonable care they could not protect themselves from approaching trains of cars; and under such circumstances, the duty devolved upon him as the representative of the company, to protect his subordinates while at work from the switching of cars and the making up of trains on the same track. He failed to perform his duty. For his negligence in this respect the company is liable. The latter cannot in this matter interpose between itself and Fox, who has been injured without fault on his part, the personal responsibility of Lovell, who in exercising the company’s authority has violated the duty he owed, as well to Fox as to the company. (Hough v. Rly. Co., 100 U. S. 213, and eases there cited; Rly. Co. v. Lavalley, 36 Ohio St. 221.) All the exceptions taken must be overruled. If the allegations in the petition were in any manner indefinite or uncertain, as alleged by counsel, application should have been made to compel the plaintiff below to make the petition definite and certain by amendment. (Code, §119; Insurance Co. v. Duffey, 2 Kas. 347; Meagher v. Morgan, 3 id. 372; Smith v. Burnes, 8 id. 197; Railroad Co. v. Comm’rs of Douglas Co., 18 id. 169.) Under the circumstances, we do not regard the damages as excessive. (Railway Co. v. Young, 19 id. 488; Railroad Co. v. Moore, ante, p. 197.) With the conclusions we have reached, it is unnecessary to comment upon the other questions presented. We are convinced that there is no error appearing upon the record to justify a reversal of the judgment. Therefore the judgment of the district court must be affirmed. Valentine, J., concurring.	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The opinion of the court was delivered by Brewer, J.: This was an action of ejectment, brought by defendant in error, plaintiff below, in the district court of Allen county. In addition to his prayer for possession, plaintiff asked a temporary injunction restraining the defendants from any beneficial use of the land pending the lit igation. On the hearing of this application for a temporary-injunction, the district judge made the following order: •'‘That the defendants herein, upon the execution of a bond in the sum of $800, conditioned as the law directs, by the plaintiff, be, and each one and all of them are hereby enjoined, until the further order of this court, or the judge thereof, from in any manner disturbing or plowing up the uncultivated or unimproved lands, to wit, the southeast quarter of section twenty-two (22), township twenty-four (24), range twenty (20), Allen county, Kansas, or destroying the sod thereof, or pasturing cattle, horses or other stock thereon, and from building any houses, fences or other improvements on.said land or any portion thereof. The defendants are also enjoined from running wagons or other agricultural implements, or teams .of horses, or other stock over the lands described in the petition, except for the purpose of reaping and harvesting the growing crops of grain, hay and fodder that naturally grow upon the uncultivated lands, or that have been grown and raised upon the lands under cultivation by the defendants, or that may hereafter be grown and reaped by them on such cultivated land before the final determination of this suit; subject however to the rights of the plaintiff, if he have any, to recover for occupation the rents and profits of such land by defendants.” To reverse this qrder, defendants have come to this court. On the hearing of the application, plaintiff produced a plain and connected chain of title from the government. It also appeared that about two years prior to the commencement of this action, the land being then vacant and unoccupied, defendants entered and took possession, erected a house, broke-up about fifty acres, and made other improvements, and have since used the land for farming purposes. The petition verified by the plaintiff, and used in the hearing as an affidavit, alleged that the land was specially adapted and was intended by the owner for the production of grass and hay; that in its natural state it was covered by a firm and permanent sod, and that the native grass was more valuable and permanent, and better adapted for the purpose for which the land was set apart and intended, than tame grass, and that the breaking up of the sod would materially injure its value; and further, that the defendants were irresponsible. Under the showing as made, the plaintiff was the owner, and the defendants were trespassers. Under those circumstance, was the temporary injunction as granted, proper? Obviously, we think the order was too broad. Doubtless injunction will lie at the instance of the owner, to restrain the cutting down of timber, the quarrying of rock, mineral, etc., or any other act which is in the nature of waste. (Iron Co. v. Reymert, 45 N. Y. 703; Wilson v. Mineral Point, 39 Wis. 160.) Upon this principle, under the showing as made, it perhaps was not wrong to grant the temporary injunction, restraining the breaking-up of the sod, or the erection of permanent buildings. True, the latter may not be technically waste, but it may under some circumstances injuriously affect the land and place an improper burden upon the true owner in their subsequent removal, and the restoration of the premises to the condition suitable for the purposes for which he designed it and for which it is adapted. But pending an action for the possession, while the title is disputed and undetermined by a judgment at law, equity ought not to interfere to restrain the defendant from continuing the possession, from the ordinary and natural use of the premises, and the enjoyment of all benefits which flow from possession. If the premises be a farm, the defendant should not be restrained from cultivating the land and enjoying all the benefits which flow from the natural and ordinary use of a farm as a farm. To this end he should be permitted to sow and gather any ordinary crop upon the cultivated ground. He should be permitted to put up any temporary sheds or other buildings necessary for the protection of his stock or the preservation of his crops. He should be permitted to use all the usual agricultural implements in the cultivation of the broken land, not merely in the harvesting of crops, as seems to be indicated by the restraining order, but also in planting and cultivation. He should be at liberty to pasture his stock on the grass lands, providing at least he has no more stock than is ordinarily raised and kept on such a farm. In short, he should be permitted to use the farm in any ordinary way, as such a farm is used, with the single limitation that he commit no waste, and make no substantial and injurious change in its condition. See in support of this the following authorities: People v. Simonson, 10 Mich. 335; Baldwin v. York, 71 N. C. 463; Bell v. Chadwick, 71 id. 329; Arkill v. Selden, 1 Barb. 316; Felton v. Justice, 51 Cal. 529; Crown v. Leonard, 32 Ga. 241; Seymour v. Morgan, 45 id. 201; Ex parte Foster, 11 Ark. 304; Chesapeake v. Young, 3 Md. 480; High on Injunctions, 1st ed,, §§4, 251, 262, 421, and 458, and cases cited in notes to each section referred to. Perhaps the district court really intended to do no more than this; but we think the language of the order goes beyond it. The order must be modified, and the case will be remanded with instructions to so modify it that it shall read, that the defendants be enjoined from breaking or in any other manner destroying any more of the unbroken sod, from erecting any permanent buildings, or in any other manner substantially changing the condition of the farm. The costs of this court will be divided. All the Justices concurring. ,	[ -15, 106, -71, 92, -118, 96, 40, -104, 81, -77, -26, 83, -19, -101, 5, 41, 98, 73, 84, 121, 70, -73, 119, -63, -42, -5, -39, -35, -78, 77, -26, -58, 76, 16, 10, 85, -58, -64, 65, -100, -114, 5, -119, 104, -38, 8, 52, 43, 114, 11, 49, 47, -13, 46, 29, -61, 105, 44, -53, 45, 81, -8, -70, -41, 95, 19, -95, 4, -100, 7, 72, -2, -112, 49, -119, -24, 115, -90, -124, 116, 7, -103, 40, 118, 103, 35, 61, -50, -20, -120, 14, 59, -115, -90, -112, 88, 98, 8, -106, -99, 116, 20, 6, 126, -17, 5, 93, 124, 7, -54, -48, -73, 15, 56, -110, 3, -21, -89, 49, 97, -51, -26, 88, -57, 112, -101, -114, -16 ]
The opinion of the court was delivered by Brewer, J.: This was an action on two promissory notes for $100 each — one due December 1, 1879, and the other December 1, 1880. The first of these with the indorsements, the other being similar in form, reads as follows: “$100. 83,004. Great Bend, Kas., May 27, 1878. “ For value received, on or before the 1st day of December, 1879, we, or either of us, promise to pay to the order of D. M. Osborne & Co. the sum of one hundred dollars, at the office of G. H. Hulme, in Great Bend, Kas., with interest at ten per cent, per annum from July 1, until paid; and if suit be commenced for the collection of this note, ten per cent, to be added as attorney’s fees; and the undersigned waive all relief from valuation, appraisement, stay, exemption and homestead laws. For the purpose of obtaining the property for which this note is given, I, M. H. Martin, hereby certify that I own in my own name 160 acres of land in section 19, town of 19, 13 W., county of Barton and state of Kansas, with 80 acres improved, and the whole is worth $2,000, which is not incumbered by mortgage or otherwise, except $600; and I own and have on said land $600 worth of personal property over and above all indebtedness. (Signed) M. H. Martin. [Seal.]” On the back of the foregoing note appear the following guaranty and indorsements: “For value received, I hereby guarantee the-of the within note at maturity, or any time thereafter, and waive demand, protest and notice of non-payment thereof. — [Signed] G. H. Hulme.” “Pay to the order of James Lyon. — [Signed] D. M. Osborne & Co., by J. H. Osborne, Secretary.” “Pay to the order of J. V. Brinkman & Co. For collection and remittance, and for value received, I hereby waive demand, protest and notice of non-payment of within note, as well for myself as for the prior indorsers.— [Signed] James Lyon.” The case was tried before a jury, and verdict and judgment were in favor of defendants, and plaintiff alleges error. The first question presented is, as to the negotiability of these notes. The district court held that they were negotiable. The ruling is correct. The only point made is, that the note contains a waiver of all relief from valuation, appraisement, stay, exemption and homestead laws; but this does not destroy the negotiability. (Zimmerman v. Anderson, 67 Pa. St. 421; 1 Daniel on Negotiable Instruments, § 61.) In this section, the author thus states the rule: “The principle is becoming established that if the note is in itself certain and perfect without conditions, and there is merely superadded the provision or declaration that the payee or holder may confess judgment for the maker, or that certain remedies are granted, or rights waived in respect to its collection, then the negotiability of the- paper is not destroyed.” The case of Killam v. Schoeps, 26 Kas. 310, is cited as against this. But it will be perceived on examination that the note sued on in that case contained an independent contract in reference to other property. It was like a promise to pay money incorporated with a lease of real estate. Where such independent contracts are united in one instrument, the form of the promise to pay money is immaterial; it cannot make the double contract a single negotiable note. But in the case at bar there is no contract independent of the promise to pay. There is simply a waiver of some rights in case the collection of the money has to be enforced by suit. The second question we shall consider is the claim of plaintiff that the verdict was against the evidence. The claim is that the plaintiff was a bona fide holder before maturity, and therefore that he held the notes free from any defense that could be made against the payee. The notes, it will be perceived, were duly indorsed, the date of the indorsement being blank, and the indorsement was not denied under oath. Hence the presumption of law is that the indorsement was made before maturity, and that the plaintiff was a bona fide holder; and this of itself compelled a verdict for him unless there was some testimony tending to show that the indorsement was after maturity, or that he did not hold in good faith. (Rahm v. Bridge Company, 16 Kas. 530.) Beyond this presumption plaintiff introduced the testimony of the cashier of the bank of Brinkman & Co., to whom the notes were indorsed for collection, to the effect that each note was received by the bank before it became due, and that at the time of receipt each note was indorsed in full as it appeared on the trial. To overthrow this, this is all that appeared: One of the defendants testified that in the fall or winter of 1879, he saw the notes in the hands of one of plaintiff’s counsel, and that when he saw them they were not indorsed to plaintiff. He was not positive as to the date, but thought it was after the first note became due. The counsel to whom he referred testified positively that he received the note October 3, 1879, and returned it November 17, 1879, which was of course before its maturity. Even discrediting the positive testimony of counsel, and giving to the defendant’s testimony the fullest weight possible, and it could only tend to show that the first note was not indorsed before maturity. The second note it will be remembered did not fall due until December 1,1880, which was long after defendant pretended to have seen them. The other matters which defendants claim to have some bearing on this question are these: Plaintiff’s counsel was the counsel of the payees in other suits; but this proves nothing. There was no testimony tending to show that the payees employed the counsel in this case, or that they were not retained directly by the plaintiff. Again, counsel, in their brief filed in this court, in an effort to explain the verdict, used this language: “The verdict of the jury seems to result from gross and inexcusable ignorance, or from a determination to defeat the claims of a foreign corporation.” But this was long after the trial, and it is not difficult to believe that the explanation suggested is the correct one, and that the jury failed to distinguish between the rights of the plaintiff and those of his indorser. Again, it is said that the collecting agent of the payees was present at the trial, apparently taking a great interest, and a witness for plaintiffs, but the record fails to show how he happened to be present or that he was taking any special interest, and only discloses that he was called as a witness. That of itself surely does not justify a verdict that the indorsement was after maturity, or that it was a mere sham and for the purpose of cutting off- all defenses. Still again, it is said that plaintiff in indorsing the notes to the bank waived protest not only for himself, but also for all prior indorsers, and that it is not reasonable to suppose that he would release his claim against a good indorser in his own city, and look simply to unknown makers in a distant state. Obviously such indorsement was for the purpose of saving the costs of the protest, and does not legitimately tend to prove what counsel claim. It may be that there was a general understanding between the payees and the plaintiff, that all notes taken by him should be without recourse upon the indorser, or they may have given him a general waiver of protest on all such notes; so that the mere fact that he took the ordinary means of preventing an accumulation of costs and expenses should not be taken as evidence against the bona jides of his holding, or to prove an indorsement after maturity. Again, it is said that the handwriting of the indorsement to plaintiff is the same as that of his indorsement to the bank for collection. This does not appear from the record, and of course that controls us. Even if it were true, it could hardly have the effect which is claimed by counsel. These are all the matters they have pointed out; and the very utmost that can be said in respect to all of them put together, is that they possibly raise a suspicion against the bona jides of plaintiff’s holding, but surely they are not enough to overthrow the legal presumption, sustained as it is by the positive testimony of the cashier of the bank. We think therefore the verdict as to the second, if not the first note, was clearly unsupported by the evidence, and the judgment will therefore have to be reversed, and the case remanded for a new trial. It will be proper for us to notice another ruling com plained of in order to guide in the subsequent trial. These notes were given in part payment of a self-binding harvester, sold by the payees to the defendant Martin. At the time of the sale, this warranty was given: “All our machines are warranted to be well built, of good material, and capable of cutting, if properly managed, from ten to fifteen acres per day. If, on starting a machine, it should in any way prove defective, and not work well, the purchaser shall give prompt notice to the agent of whom he purchased it, and allow time for a person to be sent to put it in order. If it cannot then be made to do good work, the defeetive part will be replaced, or the machine taken back, and the payments of money or notes returned. Keeping the machine during harvest, whether kept in use or not, without giving notice as above, shall be deemed conclusive evidence that the machine fills the warranty. D. M. Osborne & Co.” On the trial, the court ruled that an express warranty having been given, there was no room for the application of an implied warranty. Of this ruling neither party complains, but the court permitted the defendants, in attempting to prove a breach of the express warranty, to introduce the testimony of certain witnesses claiming to be familiar with farm machinery, to the effect that the general design of the harvester was wrong; that in its various parts it was complicated, intricate, and difficult of management. So far as it permitted inquiry into the general design of the machine, and a comparison of that design with that of other machines intended for similar work, we think the court went outside the scope of the express warranty. Waiving any question as to the competency of these witnesses to testify as experts, we think inquiry should have been limited to the machine "in controversy: Was it, or was it not, well built, and of good material, and could it'"do the work warranted ? If it failed to do such work, was it, or was it not, properly handled? Perhaps, for the purpose of tending to show that it was properly handled, testimony was admissible that other like machines, in the hands of parties familiar with farm machinery, also failed to do the work warranted. Of course this latter testimony is a little remote, but we think it was competent as tending to sustain any direct testimony of defendants as to the manner in which this one was managed and handled. This is all we think we need say to indicate the proper scope of inquiry in the succeeding trial. The judgment will be reversed, and the case remanded for a new trial. All the Justices concurring.	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The opinion of the court was delivered by Valentine, J.: This was an action in the nature of quo warranto, brought in the district court of Bourbon county, by "W. H. Dorey against T. W. Lynn, for the purpose of having the question determined, which of the two, Dorey or Lynn, was elected to the office of city councilman for the second ward of the city of Fort Scott, a city of the second class. The election was held on April 3,1883, and either Dorey or Lynn was unquestionably elected to said office. The case was tried by the court without a jury, and the court found in favor of the defendant and against the plaintiff, and rendered judgment accordingly. The plaintiff brings the case to this court. It appears from the evidence and the findings of the court below that the election was conducted regularly and properly, and that returns thereof were made to the county clerk and to the city clerk, by sending to the county • clerk, under seal, one of the poll books, and by sending .to the city clerk the ballot box, the ballots cast, sealed up in an envelope, and the other poll book, both the ballots and the poll, book being sealed up in the ballot box. On April 6, 1883, the city council met as a board of canvassers, as required by statute, (Comp. Laws of 1879, ch. 19, §18,) and. canvassed the returns made to the city clerk. Finding that the tally sheet from the second ward was blotted, and not in a very satisfactory condition, the canvassing board opened the envelope containing the ballots, and counted the ballots. The returns of the judges and clerks of the election showed that Dorey received 144 votes, and Lynn 140 votes; but the ballots, as counted by the canvassing board, showed that Dorey received only 138 votes, and Lynn 140 votes; and there were some scattering votes. Lynn was declared to have been elected, and the certificate of election was duly issued to him; and he qualified and took possession of the office. The only question to be determined in this case is, whether Lynn or Dorey was elected to the said office of councilman. From the evidence and the findings of the court below, we think there can be but little doubt that Lynn was elected, but it is claimed that the evidence showing the same was not competent or proper evidence. Such evidence was mainly the ballots cast by the voters at said election. But it is claimed that, under the facts of this case, the ballots were not properly preserved or identified, and therefore that the ballots introduced in evidence on the trial were not competent evidence. Now we think the ballots introduced on the trial were identified beyond all reasonable doubt, and were therefore competent evidence in the case. It is true they were sent to the city clerk when probably, under the statutes, they should have been sent to the county clerk. (Comp. Laws of 1879, ch. 36, §§ 8, 26.) It is also true that they were wrongfully opened and counted by the city council as a canvassing board, and it is also true that the ballots remained with the city clerk when in fact they should have been placed in the custody of the county clerk. But as the ballots were identified beyond all reasonable doubt, we think they were competent evidence and are controlling in this case. Whenever the ballots can be properly identified, they are of course the best evidence — much better and more reliable than a mere abstract or summary of the same made by the election officers. The evidence and the findings of the court below show that the ballots in this case were never tampered with in any other manner than as already -stated. At the close of the election on April 3, 1883, the judges and clerks counted the ballots, placed them in a sealed envelope, then placed the envelope with the ballots in the ballot box and sealed that, and delivered the same to the city clerk, in whose custody they have remained ever since. However, on April 6, 1883, as. before stated, they were taken out of the ballot box and out of the sealed envelope and counted by the city council, which was at that time legally acting as a board of canvassers. Afterward the ballot box was' opened and the ballots were shown to the plaintiff, Dorey; but it does not appear that he even touched them, or that anyone else ever saw them or touched them until they were counted on the trial of this case. We think there can be no doubt as to the identity of the ballots in this case, and no doubt as to the number of votes that each of the parties in this case received. The plaintiff,, Dorey, received 138 votes, and the defendant, Lynn, received 140 votes; and there were about a dozen scattering votes. We think the defendant was duly elected councilman of the second ward of the city of Fort Scott, as found by the court below, and therefore the judgment of the court below will be affirmed. < All the Justices concurring.	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The opinion of the court was delivered by Valentine, J.: This was an action brought in the district court of Sumner county, Kansas, by J. D. Payne against O. O. Potter and others, to foreclose a certain mortgage. The plaintiff gave a bond for costs, in accordance with § 1, chapter 121, of the Laws of 1875. (Comp. Laws 1879, ch. 80, ¶4113, p. 681,) which bond appeared on its face to be given by J. D. Payne as principal and Thomas George and J. T. Herrick as sureties, and was signed as follows: “J. D. Payne, by Thos. George, his attorney. Thomas George, J. T. Herrick.” The defendants appeared specially before the court, and moved “that the summons issued in the above-entitled case may be quashed and set aside as having been improvidently issued.” This motion was made upon the ground that both George and Herrick, the sureties on the cost bond, were attorneys at law, residing in Sumner county and practicing law in the judicial district within which the action was brought. This motion was heard by the court on April 21, 1883, and on the hearing thereof “it was admitted by the said plaintiff in open court and through his attorneys, Herrick and George, that each of said sureties on said bond, to wit, Thomas George and J. T. Herrick, was, at the time of signing and filing of said bond for costs, and ever since has been and now is, a practicing attorney, residing in Sumner county, and within the thirteenth judicial district of the state of Kansas, in which said action was brought.” The court overruled the motion, and the defendants excepted; and they now bring the case to this court and ask that such ruling of the court below be reversed. It does not appear that any judgment was ever rendered in. the case, but so far as the record shows the case is still pending, undisposed of, in the district court of Sumner county. Counsel for plaintiffs in error, defendants below, states in his brief in this court, among other things, the following: “The only question raised by defendant in error before the court was, that [chapter 27 of the Laws of 1867] chapter 13 of the Compiled Laws of Kansas [of 1879], or so much of it as applies to this case, is in contravention of article 2, §16, of the constitution of the state of Kansas, wherein it is provided, that ‘No bill shall contain more than one subject, which shall be clearly expressed in its title.’ “Said chapter 13, so far as it affects the case, is as follows, to wit: ‘That no state or county officers, or their deputies, shall be taken as surety on the bond of any administrator, executor, or other officer, from whom by law bond is or may be required; and no practicing attorney shall be taken on any official bond, or bond in any legal proceedings as aforesaid, in the district in which he may reside.’ “The argument of counsel for defendant in error was that the title to said chapter, to wit, ‘An act prescribing the qualification of sureties on official bonds,’ limited the nature of the legislation to that class of bonds. That a bond for costs was not an official bond, and that the part of said chapter 13 following, to wit, ‘or bond in any legal proceeding as aforesaid,’ is unconstitutional, because not embraced in the title.” It would seem that counsel for defendant in error claim that a cost bond is not an official bond, and therefore that an attorney at law may be surety on a cost bond; while counsel for plaintiffs in error claims just the reverse. If a cost bond is not an official bond, then it must be held that said chapter 13 cannot apply to cost bonds, and that a portion of such chapter is unconstitutional and void, and that the decision of the court below is correct; but if a cost bond is an official bond, then said chapter does apply to cost bonds, and the decision of the court below is erroneous. It will therefore be seen that if this court decides the question which counsel for plaintiffs in error desires us to decide, this court must either reverse the decision of the district court, or hold that a portion of said chapter 13 of the Compiled Laws of 1879 is unconstitutional and void. Now neither of these things should be done unless the question is actually presented to this court by the record of the case, and so presented that this court cannot well avoid a decision of the question. It is a general rule that an appellate court will not reverse the decision of a trial court upon a question which is not fairly presented to the appellate court; and also, as a general rule, no court will ever hold an act of the legislature unconstitutional and void unless the question of its constitutionality is clearly presented by the record for decision. An appellate court can properly decide such questions only as are legally presented to it. Now we do not think that either of the foregoing questions is legally presented to this court, and we do not think that this court has any jurisdiction to determine the same; and this for the reason that we do not think that the decision of the court below refusing to quash the summons, or set it aside, is reviewable in this court while the action is still pending in the court below, undisposed of. Such a decision of the court below is not a judgment, nor a final order, nor is it any other order reviewable by the supreme court under the statutes of Kansas. (Civil Code, §§ 542, 543.) It is simply an intermediate order. It is admitted that everything in the case was regular, except that the sureties on the cost bond were attorneys at law. No question is raised with regard to the regularity or sufficiency of the petition, the precipe, the summons, or the ser-' vice thereof, independent of the cost bond. Hence we think the court below had ample jurisdiction of the case. It had jurisdiction of the subject-matter of the action, and it had jurisdiction of the parties to the suit, and had the power to hear and determine the case and render a valid judgment in the case; and all this, whether an attorney at law may become surety on a cost bond, or not. Even if it should be held that an attorney at law cannot rightfully become a surety on a cost bond, the fact that there was no surety on the cost bond in the present case, except an attorney at law, would not deprive the court of its jurisdiction; and if a judgment should be rendered against the plaintiff for costs, the cost bond would not be held void in an action against the surety for the costs, but would be held valid. (Sherman v. The People, 4 Kas. 570.) We think we have no jurisdiction to hear and determine this case, and therefore it will be dismissed. Brewer, J., concurring.	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The opinion of the court was delivered by Valentine, J.: James Coursey commenced an action in ejectment in the district court of Leavenworth county, Kansas, against Julia Finneran and John Finneran, to recover certain real estate situated in that county. The petition of the plaintiff was an ordinary petition in that kind of an action. ■ The defendants filed an answer to this petition, setting up: (1) A general denial; (2) that the plaintiff’s claim was a cloud upon the defendants’ title, and praying that the same should be removed. The plaintiff replied to this answer, denying generally the allegations thereof, and again alleging his own ownership of the property in controversy, and his right to the immediate possession thereof. Upon these pleadings, a trial was had before the court without a jury, and the court found that the only evidence of the plaintiff’s title was a void tax deed; and therefore held that the plaintiff was not entitled to recover the property in controversy. But the court also found that the plaintiff had previously paid certain taxes on the property, which taxes were a lien thereon, and ordered that the property be sold to satisfy such lien. The court also rendered a judgment in favor of the plaintiff, and against the defendants for all the costs of the suit. The defendants, as plaintiffs in error, now complain of this judgment for costs. They claim that none of the costs of the suit should have been adjudged against them, and claim that they should have recovered a judgment against the plaintiff for all the costs. We are inclined to think that the judgment of the district court is erroneous, but not erroneous to the extent claimed by the plaintiffs in error. It must be remembered that the action was a double action; and that the plaintiff set forth a cause of action for the recovery of real property; and that the defendants set forth a cause of action to remove a cloud from their title. Both parties claimed affirmative relief; and while either party could have dismissed his or their own cause of action, neither of them could have dismissed the cause of action set up by the other. One cause of action might have been tried in the absence of the other. The plaintiff was defeated with respect to his cause of action, and the defendants were virtually defeated with respect to their cause of action. It was held by the trial court that the plaintiff did not have any title to the property in controversy, and judgment was rendered accordingly; but it was also held that the plaintiff held tax liens upon the property; that the defendants did not have a clear title thereto; that a cloud for the taxes rested upon the title; and that unless such taxes were paid, the property should be sold to satisfy the same. The defendants had never tendered these taxes, or offered to pay the same, but resisted the plaintiff’s claim to be reimbursed therefor. Now we think that the plaintiff should pay all the costs which accrued in the prosecution of or the defense against the plaintiff’s cause of action for the recovery of the property, (Civil Code, §§589, 590;) and the defendants should, in the discretion of the court, pay all costs which accrued in the prosecution of or the defense against their cause of action to remove the cloud from their title. (Civil Code, § 591.) This we think would be in accordance with both law and justice. We do not think that it is necessary to designate the particular items of costs which either party should pay. That can be done by the district court better than we can do it. This cause will be remanded, with the order that the judgment of the district court for costs be modified in accordance with this opinion. Horton, C. J., concurring.	[ -16, -18, -7, 124, 8, 96, 42, -56, 65, -95, 102, 87, -51, -53, 1, 111, -14, 105, -43, 122, -42, -73, 15, -32, -46, -77, -47, 77, -77, -52, -28, -9, 76, -80, -54, 85, 70, -54, -59, 84, -114, -113, 8, -28, -55, 72, 52, 75, 82, 75, 49, -82, -13, 42, 56, -46, -55, 60, -21, -3, 65, -72, -113, -123, 95, 1, -79, 53, -100, 67, -24, 40, -112, 57, 2, -24, -13, -90, -122, -12, 5, -71, -88, 102, 99, 33, 5, -17, -8, -72, 46, 125, -115, 38, -109, 8, 3, -119, -106, -103, 117, 50, 7, 124, -25, 20, 29, 108, 11, -53, -106, -109, -49, 48, -102, 66, -21, -125, 32, 96, -49, -96, 92, -25, 56, 27, 15, -97 ]
The opinion of the court was delivered by Brewer, J.: On February 27, 1883, an information was filed charging defendant with the crime of assaulting and beating one Arthur Shadinger with intent to kill. On the trial the defendant was convicted of a simple assault and battery, fined $50 and costs, and therefrom he brings this appeal to this court. Two questions only require notice: I. The information, filed as stated February 27, 1883, charged in the past tense that defendant did assault; but further stated that such assault was on the 27th of December, 1883; that is, it alleged in February, 1883, an assault committed in December, 1883, long after the filing of the information, and after the case was called for trial. After the jury had been impaneled and sworn, defendant objected to the admission of any testimony, on the ground that the time stated was after the filing of the information and the time of trial. Thereupon, on motion of the county attor ney, the court permitted an amendment of the information so as to charge the offense as committed in December, 1882, instead of December, 1883. The information thus amended was reverified and refiled, and the case proceeded to trial over the objection of defendant. He now contends that the amendment was one in matter of substance, and therefore could not have been made after the impaneling of the jury, and cites many authorities in support of this proposition. Without stopping to inquire what would have been the rule under the old common-law practice, we think under our code the amendment was proper. The practice in this state is governed by a code of criminal procedure, and in many respects varies largely from that which obtained at the common law. (Madden v. The State, 1 Kas. 348.) Under the code, the information must contain the title of the action, specifying the name of the court to which the information is presented, the names of the parties, and a statement of the facts constituting the offense in plain and concise language, without repetition. (Comp. Laws 1879, ch. 82, §103.) It must be direct and certain as regards the party and the offense charged, but the precise time of the commission of an offense need not be stated therein. It is sufficient if shown to be within the statute of limitations, except where the time is an indispensable ingredient in the offense. (Comp. Laws 1879, ch. 82, §§ 104, 105.) The information is sufficient, if it appear therefrom that it was presented by the prosecuting attorney of the county in which the court is held; that the defendant is named therein, or described as a person whose name is unknown to the prosecuting attorney; that the offense was committed within the jurisdiction of the court, or is triable there; that the offense is clearly set forth in clear and concise language, without repetition, with such a degree of certainty that the court may pronounce judgment, upon conviction, according to the right of the case. (Comp. Laws 1879, ch. 82, §109.) No information may be quashed or set aside for any of the following defects, among others; “Sixth, For any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate the crime and person charged; nor, seventh, for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.” (Comp. Laws 1879, ch. 82, §110.) Under this provision, where the information charges in a past tense that an offense has been committed, but names a date subsequent to the date of the information, we think the court may permit an amendment so as to place the date prior to that of the information; and this without trespassing upon the substantial rights of the defendant. See in support generally of the views thus expressed, the following authorities: The State v. Wister, 62 Mo. 592; The State v. Wilcoxen, 38 id. 370; The State v. Sam, 2 Dev. N. C. 567; Jones v. Commonwealth, 1 Bush (Ky.), 34; The State v. Barnett, 3 Kas. 250. See also The People v. Kelly, 6 Cal. 210; The People v. Littlefield, 5 id. 355; Hampton v. The State, 8 Ind. 336; Hardebeck v. The State, 10 id. 459; The State v. Elliott, 34 Tex. 148; The State v. Hoover, 31 Ark. 676. II. It is insisted that while a defendant under a charge of an assault and battery with intent to kill may be convicted of a simple assault and battery, yet he may be so convicted only when such assault and battery was committed in the manner and form alleged in the information, and that therefore the court in its instructions should have so limited the action of the jury. As counsel say, if one is charged with an assault with a revolver, and shooting with attempt to kill, he ought not under the information to be convicted of a mere assault by the slapping of hands. Doubtless as a rule this claim of counsel' is correct; but if any specific instructions limiting and restricting the action of the jury were necessary, they should have been asked by counsel. Of the general proposition, that under an information charging one crime a defendant may be convicted of a less crime included therein, there can be no question. So the statutes prescribe, and so the court instructed. If any limitation was necessary, a specific instruction to that effect should have been asked. None such appears to have been asked; and the verdict of the jury that the defendant was guilty of assault and battery as charged in the information, indicates very clearly that none such was demanded by the facts as developed in the trial. The testi-' mony not being preserved in the record, we cannot say that it disclosed a state of facts which called for any specific instructions in this direction. Therefore, no error can be affirmed in the ruling of the court. These are all the matters requiring special notice, and in them appearing no error, the judgment will be affirmed. All the Justices concurring.	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The opinion of the court was delivered by Brewer, J.: This was an action upon four notes and a mortgage given to secure their payment, commenced in tne district court of Clay county on February 17, 1882. The mortgage was executed May 7, 1876. On the 20th of March, and before answering, the defendants filed their motion to require the plaintiff’s attorneys to produce the authority under which they appeared for the plaintiff. Affidavits were read on the hearing of this motion; the court found that the attorneys had not sufficient authority, and continued the case to the next term. At the next term, for some reason not disclosed by the record, the defendants renewed the same motion, the same showing was made, and exactly the opposite ruling made by the court. Thereupon the defendants answered. The case went to trial before a jury, and during the trial an amended answer was filed, tendering two defenses: First, the death of the plaintiff prior to the commencement of the action; and second, that the action was prosecuted without authority from the payee of the notes and plaintiff in the action. These issues, involving of course no question on the merits, seemed to have been'the only matters presented and considered on the trial. The jury returned a verdict for the defendants, and judgment was rendered in form that the action was prosecuted without authority, and that the plaintiff pay the costs. Upon the trial these facts appeared: In the spring of 1876, Ryan, the plaintiff, was the owner of the tract of land mortgaged. He was then fifty-two or fifty-three years of age, and unmarried. He had lived in Clay county some four or five years. He sold the land to defendants, and took the mortgage in controversy for part of the gurchasemoney. He left the notes and mortgage, together with some other notes, with one David Greep as his agent, with instructions to collect the moneys thereon and send them to Daniel Fish, his brother-in-law, in New Hampshire. Some of the other notes were collected by Greep, and the proceeds forwarded to Fish as directed. Ryan, in June of that year, went to New Hampshire to visit his relatives. He stayed there two or three weeks, and then went away saying he would return-in a month. Nothing has since been heard of him. He was in good health and of sound mind, but rather eccéntric in his disposition. Before he left Kansas he told his agent that he did not know where he should go, that he might go to California or to the Black Hills, and that when he got settled he would write. But the agent never heard from him. The court instructed the jury that there was no testimony showing the death of the plaintiff, or raising the presumption of his death; that where notes and accounts are left with an agent, with instructions to collect, the agent has the implied power to sue and to employ attorneys to collect the debts by suit. The jury retired, and returned the verdict for defendants, as heretofore stated. Obviously the jury disregarded the court’s instructions; for that Greep had instructions to collect and remit to Daniel Fish was undisputed, and the court plainly charged the jury that authority to collect implies authority to sue and employ attorneys therefor. And in so many words the court also charged the jury that they must regard the plaintiff as still living. Now whether the court was right or not in its instructions, it was the duty of the jury to accept them as correct, and be guided by them; and upon a failure so to do the verdict should be set aside. (Irwin v. Thompson, 27 Kas. 643; Howell v. Pugh, 25 id. 96.) Again, the court was right when it instructed that author-, ity to collect implies and includes authority to use the means ordinarily employed for the purpose of accomplishing a collection, and that among these are the retaining of counsel and the institution of suit. Indeed,, that is generally the only way in which collection can be compelled, and an agent whose duty it is to collect, has certainly the implied power to resort to the ordinary and generally the only means of compelling collection. Authority to collect is broader and more comprehensive than authority to receive payment. (1 Wait’s Actions and Defenses, p. 221, and cases cited.) In reference to the death of Ryan, it is clear that there was no direct proof. The matter rests mainly on presumptions. The general rule in respect thereto is, that at the close of a continuous absence of seven years, during which time nothing is heard of the absent person, death will be presumed. (2 Wharton on Evidence, § 1274; 1 Greenleaf on Evidence, § 41, and cases cited.) Now at the time of the commencement of this action, only five years and eight months had elapsed since Ryan left New Hampshire, and at the time of trial seven years’ absence had not fully run; so that with nothing but the mere fact of unexplained absence before it, the court was clearly right in its instructions. It is true that besides the mere fact of unexplained absence, there were one or two slight matters bearing upon this question. While a man of good health, Ryan was past middle life when he went away. He told his relatives in New Hampshire that he would be back in a month. He told his agent in Kansas that as soon as he got settled he would write. He neither returned nor wrote. Now it is doubtless true that a jury is justified in inferring death within less than seven years, where besides unexplained absence there are other matters tending to show death. In 2 Wharton’s Evidence, §1277, the author says: “ It has been incidentally observed that, independent of the general presumption of death arising from unexplained absence abroad for seven years, certain facts have been noticed by the courts as affording grounds on which inferences of death, more or less strong, may rest. Among these facts may be noticed: Presence on board a ship known to have been lost at sea, the inference of death increasing with the length of time elapsing since the shipwreck; exposure to peculiar perils, to which death will be imputed if the party has not been subsequently heard from; ignorance as to such person, after due inquiry, of all persons likely to know of him if he were alive; cessation in writing letters, and of communication with relatives, in which case the presumption rises and falls with the domestic attachments of the party. Thus, death may be inferred by a jury from the mere fact that a party who is domestic, attentive to his duties, and with a home to which he is attached, suddenly, finally, and without explanation, disappears.” See also 1 Greenleaf, § 41, supra; Tisdale v. Insurance Co., 26 Iowa, 170; same case, 28 Iowa, 12. In the ease from 26 Iowa, the court held that— “The death of an absent person may be presumed in less than seven years from the date of the last intelligence from him, from facts and circumstances other than those showing his exposure to danger which probably resulted in his death.” And also, that— “ Evidence of character, habits, domestic relations, and the like, making the abandonment of home and family improbable, and showing a want of all those motives which can be supposed to influence men to such acts, may be sufficient to raise the presumption of death, or from which the death of one absent and unheard from, may be inferred, without regard to the duration of such absence.” So that perhaps the court ought to have left it to the jury as a question of fact, whether, considering Ryan’s eccentric disposition, his lack of a family; his expressed uncertainty as to his future residence on the one hand, and on the other his age, his promise to write and return, and his long absence, his death ought, or ought not, to be inferred. Be that as it may, under the instructions as given, the jury ought not to have found as they did. As more than seven years have now passed since Ryan’s departure, if no tidings have been received from him, the presumption of death unquestionably arises. But whether dead or alive, defendants’ obligation to pay remains. If Ryan be alive, they should pay the money to the agent, that it may be by him remitted to Daniel Fish in accordance with Ryan’s instructions.' If on the other hand, Ryan be dead, an administrator should be appointed to collect this money and distribute it among his heirs. It is unnecessary that this suit be dismissed, for if an adminis trator be appointed, the death of Eyan can be suggested, and the suit revived in the name of such administrator. The judgment will therefore be reversed, and the ease remanded for further proceedings. All the Justices concurring.	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The opinion of the court was delivered by Bkewek, J.: The question in this case is as to the validity of a tax deed, and its validity turns on the sufficiency of the notice of redemption. Counsel in this case understand the office of a case-made, and, omitting all unnecessary matters, have embodied in their case only so much as is necessary to present the question. Their briefs are equally direct and pointed. It is a pleasure to examine such a record and such briefs. Turning now to. the notice: It states that the lands in the list, “ having been sold for the taxes of the year A. D. 1875, and still remaining unredeemed, will be deeded to the purchasers thereof on and after the 5th day of September, A. I). 1879, or within three years from the day of sale, unless previously redeemed.” The statute (Comp. Laws of 1879, ch. 107, § 137) requires the treasurer to publish a notice that unless the lands named “ be redeemed on or before the days limited therefor, specifying the same, they will be conveyed,” etc. Does the notice comply with the statute? Clearly not. Who can tell from this notice alone when the time of redemption will expire, and the purchaser be entitled to a deed? It says at one time or another, and the latter is not specified. Take a sheriff’s advertisement of sale of real estate and let it read that the sale will be made on the 5th of September, or within thirty days from the date of the first advertisement: could it for a moment be claimed that the day of the sale was specified, or that any one could from it alone definitely determine when the sale was to be had? One or another is not definite and certain. The statute fixes the time at which tax sales shall commence; but they may be continued from day to day, so that while the tax-payer may be chargeable with notice of the time when the sales commence, he is not chargeable with notice of the particular day his land is sold. But again, “within three years” is not the law. One year is within three years, but the owner has the full three years in which to redeem. The purchaser is not’ entitled to a deed within, but only after three years. The notice is therefore not only indefinite and uncertain, but in part incorrect. But it is argued that the owner could not have been misled; that such notice, being subsequent to the sale, is not jurisdictional, and the error in it is only an irregularity which cannot affect the validity of the deed. Counsel say that the purchaser cannot control the treasurer, and therefore, having purchased and paid his money, he should not be held responsible for any blunders of that officer. He may fairly be held bound by mistakes before the sale, for his purchase is voluntary, and he takes his chances when he buys; but after the sale he cannot help himself, and should not be affected by any errors or mistakes of public officers. We cannot assent to this claim. We have considered this before in the cases of Shoup v. C. B. U. P. Rld. Co., 24 Kas. 547; Watkins v. Inge, 24 id. 612; Long v. Wolf, 25 id. 522, and held such notice essential to the validity of the deed. The purchaser at a tax sale obtains only an inchoate title, and for a completed title must depend upon a substantial compliance with all legal requirements up to and including the execution of his deed. Nor is this any hardship, for the large interest given is abundant compensation for any investment at tax sales. We indorse what is said by Judge Cooley in his work on Taxation, page 365: “Whatever the statute may make provision for, subsequent to the sale, in order to the protection of the interest of the parties having the right to redeem, must be strictly performed. The reasons which require this are the same that render imperative a strict compliance with all those provisions which are to be observed in the interest of tax-payers before the sale is made. Perhaps the most usual requirement is the publication of a notice to the tax-payer, with sometimes a personal service upon the owner, in case he is known and is a resident. All provisions of this nature must be strictly •complied with. Nothing can be substituted for them by the ■officers,” etc. The ruling of the district court was correct, and must be affirmed. All the Justices concurring.	[ -15, 126, -43, -65, 42, -64, -86, -104, 73, -91, 38, 27, 109, -126, 20, 57, -79, 105, 101, 74, -42, -73, 119, -85, -74, -77, -47, -35, 53, 77, -26, 70, 76, 49, -54, 53, 70, 42, -51, 86, 110, -121, 9, 109, -15, 64, 52, 107, 64, 72, 113, -50, -29, 63, 25, 70, 9, 40, 73, 55, -112, -72, -69, -123, 127, 7, -109, 53, -8, -61, -24, -114, -110, 57, 0, -24, 119, -74, -42, 116, 13, 41, 40, 32, 98, 0, 69, -1, -8, -104, 14, -10, 13, -89, -48, 120, 43, 108, -66, -97, 125, 16, 101, 126, -26, -108, 29, 108, 15, -114, -42, -77, -113, 122, -120, 3, -33, 3, 50, 113, -49, 38, 92, 119, 56, 27, -114, -4 ]
The opinion of the court was delivered by Schroeder, J.: This is an appeal by the defendant in a criminal action from a conviction of manslaughter in the fourth degree. Various trial errors are assigned for reversal. The case arises out of a homicide that was committed at approximately 9 o’clock p. m. on the 29th day of March, 1969. The deceased was John Bond, the husband of Arloa Bond. Vera Irene Phippen (defendant-appellant) was charged with the offense of murder in the first degree for this homicide. Five adult persons and two children all resided at 505M Forest Street in Topeka, Kansas. Their names were: John Bond and his wife, Arloa Bond, their infant child, Johnny, Mr. Wilhite, Mr. Phippen and his wife, the defendant, and her fourteen year old daughter, LaNita Long. The residence was described as a three-room garlow. These persons were evicted from this residence because there were too many people living in it. Part of the day in question was spent moving to the Trail Ridge Apartments at 2113 East 11th Street Terrace, Topeka, Kansas. All of the adult persons heretofore named were involved in the moving process to some extent. The evidence discloses Mr. Bond had been drinking heavily and was “pilled up.” Mrs. Bond said she was afraid of her husband “knowing that the day before he had been shooting barbiturates and seconals into his body to go with the liquor.” When Mr. Bond was in this condition his wife, Arloa, had great fear of him because of previous beatings she had received. The moving process was about completed when Mr. Phippen informed the defendant that John Bond had smarted off to him. The defendant stated she was not going to put up with that and asked her husband, Mr. Phippen, if he had a gun. Obligingly her husband procured his sawed-off shotgun and took it to the new residence where it was seen at several places in the course of the evening. Its last resting place before the fatal incident was under the bed of Mr. Phippen and the defendant. At this time the weapon was loaded and cocked, ready for use. At approximately 8 or 8:30 p. m. on the evening of March 29 Mrs. Bond was downstairs in the new apartment with her child and LaNita Long. Mr. Phippen and the defendant were upstairs in the bedroom. When Mrs. Bond discovered the arrival of her husband she proceeded up the stairs with her child in her arms. There was testimony that Mrs. Bond exclaimed, “Ray, Ray, help, help, he’s here,” as she proceeded up the stairs. She entered the bedroom which was occupied by Mr. Phippen and the defendant and went to a far corner away from the door of the bedroom. Mr. Bond had a can of tear gas in his hand and followed her up the stairs and went into the bedroom. Mrs. Bond asked Mr. Bond to leave her alone because she had the baby in her arms, but Mr. Bond made an effort to grab the baby away from her. Mr. Phippen said, “Snake, go on, we don’t want to have any trouble in here.” Mr. Bond, after turning around and starting toward the door of the bedroom, observed the defendant with the sawed-off shotgun in her hand. It had been retrieved from underneath the bed by the defendant sometime during the course of the altercation between Mr. Bond and his wife. When Mr. Bond observed the shotgun he said “So you have got it.” As Mr. Bond approached the door, as if to leave the room, he came within vexy close proximity of the defendant. Mrs. Bond testified that the distance between Mr. Bond and the defendant was approximately three feet. At this point the sawed-off shotgun was dischax-ged into the abdomen of Mr. Bond, mortally wounding him. The testimony is conflicting as to just what occurred immediately prior to the discharge of the shotgun. Both Mr. Phippen and the defendant testified that as Mr. Bond walked toward the door he turned back toward the defendant and reached down like he was going to knock the gun out of the defendant’s left hand or pull it away from her. They said when Mr. Bond pulled the gun it went off discharging into his abdomen. The defendant testified: “Q. Did you know the gun was even cocked? “A. No, I didn’t. “Q. You say he pulled it out of your hands? “A. Yeah, but I didn’t know it was loaded and I didn’t know it was cooked.” Mrs. Bond testified the defendant had the gun down at her side in her right hand. She testified: “Q. Were you in a position to see whether or not he grabbed for the gun or not? “A. No, sir. “Q. Couldn’t see that, or that didn’t happen? “A. It didn’t happen, to my knowledge. When I looked to see — at him as he was starting to- walk out of the room and his hand was up like this (indicating), and she was standing in front of him when he started to walk out of the room. She just pulled the gun up and shot. “Q. At that time, did you say he was about three feet away from her; is that right? “A. Yes.” LaNita Long went into the bedroom with Mrs. Bond as she ran up the stairs. She observed Mr. Bond and said she thought he was going to try to walk out of the door, but instead he turned and drew his hand back and it looked to her like he was going to hit her mother, the defendant, at which time she heard the gun go off. She said the gun was in the left hand of the defendant, who is right-handed, and it was being held at her side pointed down. She thought Mr. Bond was about two or three inches away from the barrel of the gun when it went off. Mrs. Bond testified the defendant had previously said, “she was going to shoot one of them, she didn’t care which one of them, the first one of them that-with her,” referring to Mr. Bond and Mr. Wilhite. The evidence disclosed the shot was fired at very close range, making a round hole in his belt and trousers the size of a shotgun barrel. On the evidence presented the trial court of its own volition refused to instruct the jury on first and second degree murder, thereby absolving the defendant of these offenses. The jury was instructed only on the offenses of manslaughter in the first degree and manslaughter in the fourth degree. The appellant first contends the trial court erred in overruling her motion for discharge at the conclusion of the opening statement made by the state because the contents of the opening statement failed to state a cause of action. In his opening statement the prosecuting attorney informed the jury the defendant was charged with the offense of murder in the first degree as set forth in the information. He indicated that because the jury members were present a few hours earlier when the appellant was formally arraigned the information would not be reread. He followed these remarks by naming the witnesses who would probably testify, but without reciting what their testimony would disclose to prove the appellant guilty of the offense of murder in the first degree or any other degree of homicide. K. S. A. 62-1438 provides in part: “The jury being impaneled and sworn, the trial may proceed in the following order: “First. The prosecuting attorney must state the case, and offer the evidence in support of the prosecution.” The foregoing provisions do not require that the prosecutor state a cause of action in his opening statement to substantiate the charge in the information. Here the prosecuting attorney did advise the jury that this was a first degree murder case. The appellant has not cited any authority in support of her argument. In McCoy v. Fleming, 153 Kan. 780, 113 P. 2d 1074, it was said: “. . . No citation of authorities in support of appellant’s meager argument is contained in the brief, and this court might well conclude that counsel, after diligent search, had not been able to find any, in which case the judgment should be affirmed. . . .” (p. 783.) The record fails to disclose the appellant was prejudiced by the opening statement of the prosecuting attorney, and it did not affect her substantial rights. (K. S. A. 62-1718.) The appellant next contends the trial court erred in overruling her objection to statements previously made by her because the police officer, who arrived at the scene shortly after the shooting, failed to advise her of her rights pursuant to the Miranda decision. The police officer dispatched to the Trail Ridge Apartments at the time of the incident on the day in question observed a young white male lying on his back, his legs slightly spread, with an open wound in his stomach, and between his legs was what appeared to be a canister of tear gas. Without giving a Miranda warning he then asked the appellant and her husband what had happened. He testified: “Q. What did they say? “A. Mrs. Phippen said that they were both in bed asleep and they heard an explosion and the lights come on and then the man was laying on the floor.” The officer was then asked whether or not Mr. Bond was alive before the ambulance drivers got there, to which he replied that he did observe him gasp; however, he could get no response from him; that he couldn’t get any pulse or respiration. It is argued by the appellant that although the answer given to the officer’s question was exculpatory, it was clearly damaging to her in view of the testimony she gave under oath at the trial of the case. In the landmark case of Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A. L. R. 3d 974, the United States Supreme Court said: . . the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. . . (p. 444.) (Emphasis added.) Later in the opinion the court said: “Our decision is not intended to hamper the traditional function of police officers in investigating crime . . . General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. . . .’’ (p. 477.) Our decisions have recognized a distinction between the investigatory stage of the case and the custodial interrogation of one suspected of crime. (State v. Little, 201 Kan. 94, 439 P. 2d 387; and State v. Hinkle, 206 Kan. 472, 479 P. 2d 841.) Clearly on the facts here presented the inquiry by the police officer was a noncustodial, investigatory inquiry. The officer, having just arrived on the scene of the homicide, observed the deceased, and then asked Mr. and Mrs. Phippen what had happened. Under these circumstances no explanation of the appellant’s rights was required. The appellant contends the trial court erred in overruling her motion for discharge at the conclusion of the state’s evidence because the state failed to establish the corpus delicti. It is argued there is no evidence in the state’s case in chief touching upon the cause of the decedent’s death. It is uniformly held by American courts that in homicide cases the corpus delicti is the body or substance of the crime which consists of the killing of the deceased by some criminal agency and is established by proof of two facts, that one person was killed, and that another person killed him. (State v. Doyle, 201 Kan. 469, 477, 441 P. 2d 846.) If the evidence discloses clearly that a certain person is dead, that his death resulted, at the hands of another, from the use of violent or criminal means, the corpus delicti is sufficiently proved. (40 Am. Jur. 2d, Homicide, § 432, p. 693.) Furthermore, the corpus delicti may be established even though no coroner’s autopsy has been performed, as here. (40 Am. Jur. 2d, Homicide, § 433, p. 694.) The record is sufficient to establish that John Bond did in fact die of the shotgun wound inflicted by the appellant. Arloa Bond testified that her husband died on March 29, 1969; that she was at the funeral and knew him to be dead. She also testified that on the evening in question the appellant had a gun in her right hand with which she shot John Bond. She also testified John Bond was shot at a range of three feet; that this shot hit him in the abdomen and “blew him right in two.” She further said she saw “where he was shot and his guts were rolling out of him.” The police officer s testimony disclosed when he arrived at the scene shortly after the homicide he could get no pulse or respiration from the deceased. There was no testimony during the state’s case in chief that Mr. Bond tried to grab the shotgun from the appellant. The corpus delicti may be proved by the direct testimony of persons who saw the act, or by indirect and circumstantial evidence, or partly by one and partly by another. No exclusive mode of proof of the corpus delicti is prescribed by the law. (State v. Cippola, 202 Kan. 624, 451 P. 2d 199, cert. denied 396 U. S. 967, 24 L. Ed. 2d 432, 90 S. Ct. 446.) The appellant complains of the rebuttal testimony of Arloa Bond on the ground it was improper rebuttal testimony. After the appellant and her husband testified in the defense of her case, that John Bond had tried to grab the gun away from her, causing the gun to fire as the muzzle of it was pulled toward him, the state called as a rebuttal witness Arloa Bond, who had previously testified in the state’s case in chief. Mrs. Bond was permitted to testify on rebuttal that she had not seen her husband grab for the gun that was in the appellant’s hand. This testimony on rebuttal was given over the appellant’s objection. The appellant contends Arloa Bond should have been asked these questions on direct examination in the state’s case in chief. Rebuttal testimony is permitted by the provisions of K. S. A. 62-1438. The state is not required to anticipate every possible defense the defendant in a criminal action may offer. If so, the state would be required to elicit testimony in its case in chief to cover every possible contingency. Here the state was not required to anticipate the appellant’s defense. Therefore, the state properly offered the testimony of Arloa Bond to rebut the testimony of the appellant and her husband after it was given to establish a defense. In State v. Neff, 169 Kan. 116, 218 P. 2d 248, the court held: “It is always desirable that there should be an orderly presentation of proof. Rules pertaining thereto, however, are directory and not mandatory. An alteration in the prescribed customary order of proof rests in the sound judicial discretion of the trial court and the court’s ruling will not be disturbed on appeal unless its exercise of discretion is abused.” (Syl. ¶ 8.) The appellant contends the verdict was contrary to the law and the evidence. The trial court instructed the jury on manslaughter in the fourth degree as follows: “Manslaughter in the fourth degree is the involuntary Mling of another person by the act, procurement or culpable negligence of another which is not included in the definition of manslaughter in the first degree as herein defined. You are instructed that in order for a person to be guilty of culpable negligence within the meaning of that statute that person must be guilty of some act or acts constituting reckless indifference to the rights or safety of other persons.” K. S. A. 21-420 reads: “Every other killing of a human being, by the act, procurement or culpable negligence of another, which would be manslaughter at the common law, and which is not excusable or justifiable, or is not declared in this article to be manslaughter in some other degree, shall be deemed manslaughter in the fourth degree.” The appellant contends the facts in the case considered most favorably for the state faded to make out the crime of manslaughter in the fourth degree as defined by 21-420, supra. The appellant does not object to the instruction or quarrel with the definition of culpable negligence given the jury, but contends the facts in this case disclose no culpable negligence. This court in State v. Brooks, 187 Kan. 46, 354 P. 2d 89, relied upon the Custer case for the definition of manslaughter. It said: “As held in State v. Custer, supra [129 Kan. 381, 282 Pac. 1071], and our other decisions, involuntary manslaughter is the killing of another unintentionally and without malice and results either from the commission of a lawful act or an unlawful act. If death resulted from negligent conduct in doing a lawful act it is necessary in order to constitute manslaughter that the conduct be reckless, that is, be such as to evince disregard or indifference to consequences, under circumstances involving danger to life and safety to others, although no harm was intended. On the other hand, if death resulted from unlawful conduct amounting to misdemeanors denounced by statutes for the purpose of protecting human life and safety, and the death would not have resulted except for the unlawful conduct, the killing would also be manslaughter at common law. Whether statutes are enacted and designed for the purpose of protecting human life and safety is a question of law for the courts to determine (State v. Yowell, 184 Kan. 352, supra).” (p. 50.) In a criminal action the function of this court on appeal is not to decide whether guilt was shown by the evidence beyond a reasonable doubt, but to ascertain whether there was, in the evidence, a basis for a reasonable inference of guilt. (State v. Burgess, 205 Kan. 224, 226, 468 P. 2d 229.) The evidence is uncontroverted that at the time in question the appellant had a sawed-off shotgun in her hand, which was loaded and cocked. To find the appellant guilty of manslaughter in the fourth degree the jury must have found the gun was unintentionally discharged by the appellant. Under these circumstances two alternatives are possible to support the verdict. First, if the jury gave credence to her testimony that she did not know the gun was loaded or cocked, and the appellant as she was brandishing the gun aimed it at Mr. Bond when it was unintentionally discharged by her squeezing on the trigger, which the jury was entitled to find from the evidence, the appellants conduct would constitute culpable negligence within the meaning of 21-420, supra. Second, if the jury found the appellant knew the gun was loaded and cocked, and the appellant as she was brandishing the gun aimed it at Mr. Bond when it was unintentionally discharged by Mr. Bonds attempt to pull it from her, which the jury was entitled to find from the evidence, the appellant’s conduct would constitute culpable negligence within the meaning of 21-420, supra. Finding no reversible error the judgment of the lower court is affirmed.	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The opinion of the court was delivered by Fontron, J.: This appeal stems from a summary judgment disallowing a petition filed by Bernice E. Minich in the Estate of John Elza Zimerman, Deceased. The case had its origins in the spring of 1960. On April 11 of that year, John Elza Zimmerman and Abbie Zimmerman (hereafter referred to respectively as John and Abbie) executed their joint will, leaving all the property belonging to either of them to the survivor for the use of the survivor during his or her lifetime, with full power and right to convey and transfer the property without court inter vention, and directing that at the death of the survivor all the property not disposed of by the survivor be distributed as follows: (1) A certain quarter section of land to Charles R. Minich, a nephew; (2) the residue and remainder of their property, real and personal, in equal shares to thirteen (13) specified relatives, Charles R. Minich being among those named; and (3) the lawful issue of any deceased heir to take their parents’ share by representation, or if none, the share to be divided pro rata among the other surviving heirs. Abbie died on June 7, 1960. The joint will was not offered for probate at the time of Abbie’s death nor was it ever produced for probate until after John’s death, more than seven years later. On August 18, 1961, John executed a codicil to the joint will in which he left various specific items of personal property, largely antiques, to Charles and/or Bernice E. Minich and two other legatees. Except for these few bequests, John expressly ratified the will in every respect. John died January 9, 1968, and the joint will was offered and admitted to probate as his last will and testament on January 22, 1968, the first notice to creditors being thereafter published January 25, 1968. In the meantime, that is prior to John’s death, Charles R. Minich, to whom we will largely refer as Charles, departed this life at his home in Galesburg, Illinois, on April 25, 1966, being survived by his widow Bernice E. Minich, hereafter called Bernice or petitioner, as his sole and only heir. On the twelfth day of November, 1968, some eighteen (18) days after the nine-month nonclaim'statute had run, Bernice filed her petition in probate court alleging that pursuant to the terms and conditions of John’s and Abbie’s joint will, title to the farm land vested in Charles upon Abbie’s death, subject only to John’s life estate with power of conveyance, and that all rest and residue of their properties, both real and personal, descended to the thirteen named legatees, also subject to Johns life estate with power to convey, and that a one-thirteenth interest in the residue became vested in Charles at Abbie’s death. Bernice alleged John had not conveyed the farm and she concluded her petition by praying for an order decreeing that the bequests to Charles had not lapsed, and that upon the death of Abbie there had vested in Charles a remainder interest in fee in and to the quarter section of land and a one-thirteenth interest in the remaining property. The case was transferred to district court where the executor filed a motion for summary judgment while the guardian ad litem filed an answer on behalf of certain minors. The trial court treated the latter’s answer as being, in effect, a motion for summary judgment and thereupon entered summary judgment disallowing the petition filed by Bernice. In a comprehensive memorandum the trial court held that the joint will could not be operative as Abbie’s will, since it was not probated within five years of her death (see K. S. A. 59-618); that the devise of the farm and the residuary bequests to Charles had lapsed upon his death prior to the death of John; that no claim for damages against John’s estate had been filed within the time allowed by the nonclaim statute, K. S. A. 59-2239; and that no remainder interests in the Zimmerman properties became vested in Charles upon Abbie’s death. The court also held that, assuming the joint will was contractual, and that Bernice’s petition constituted a claim under its provisions against John’s estate, the same was filed too late to comply with the nonclaim statute. Bernice has appealed. As appellant, she has set forth seven points of error in her brief. However, the real thrust of her position is that upon Abbie’s death, Charles became the owner of a vested remainder interest in the quarter section of farm land, and of a one-thirteenth vested interest in the residue and remainder of Abbie’s estate, subject only to John’s life estate with the power to convey and transfer the property. This position was made quite clear on oral argument when counsel for Bernice advised this court that his client was not claiming any interest under the joint will — whether it be John’s or Abbie’s. At the same time counsel stated her position was that John held title to Abbie’s property as a constructive trustee and that this relationship dated back to the time of Abbie’s death. This constructive trust theory, which was also advanced in appellant’s brief, differs from that set out in her petition, i. e., that title vested in Charles by virtue of the joint will, and the record is not clear that the trust theory was presented to the trial court. Be that as it may, and we think it makes little difference to the result in this case which approach is taken, we shall examine both prongs of petitioner’s contention. Petitioner’s counsel devote a considerable portion of their brief filed in her behalf to the proposition that where a claimant seeks only to exclude from a decedent’s estate property which had never become a part of the estate, the nonclaim statute is not applicable, citing Windscheffel v. Wright, 187 Kan. 678, 360 P. 2d 178, 89 A. L. R. 2d 636 and other cases. We grant that such has been the holding by this court. However that is not the present issue in dispute. The point now before us is whether Charles became the owner of a vested interest in the Zimmerman property as of the time Abbie died. If he did, we may assume that the interest was not an asset of John’s estate, and that the petition filed by Bernice was properly in the nature of an action to remove or strike that property from the inventory of John’s estate. However, we consider the contention that Charles became vested with an interest at the date of Abbie’s death to be untenable. No title could vest in Charles by virtue of Abbie’s will, because her will was not probated. K. S. A. 59-616 provides that no will shall be effectual to pass title unless it has been duly admitted to probate. It is true that the joint will was admitted to probate on January 22, 1968, as John’s will, not as Abbie’s. No probate of Abbie’s will could be had in 1968, since she died in 1960, for no action may be taken by a beneficiary to probate a will more than five years after the testator’s death. (K. S. A. 59-618.) We see no merit in the argument that when Abbie died John became a constructive trustee, holding title to the property devised to Charles as a fiduciary for the benefit of Charles. A constructive trust, sometimes termed a trust ex maleficio, or ex delicto, arises in those cases where a person by fraud, actual or constructive, or by any form of unconscionable conduct, or questionable ethics has obtained or holds title to property which in equity and good conscience he ought not to possess or which justly belongs to another. (54 Am. Jur., Trusts, § 218, pp. 167, 168; see, also, 5 Hatcher’s Kansas Digest [Rev. Ed.] Trusts, § 30. An aroma of wrongdoing permeates the atmosphere surrounding a constructive trusteeship. Such an offensive odor does not emanate from the pages of this record. No improper motive can be ascribed to John Zimmerman in this case. If the will that he and Abbie executed was contractual in nature — and we are inclined to believe it was, under the decision of In re Estate of Chronister, 203 Kan. 366, 454 P. 2d 438, and cases cited therein — John was obligated under his covenant not to revoke the will, and equity would have enforced that agreement against his estate had he sought to avoid it. But John scrupulously observed his obligation; the will was not revoked by him after his consort’s demise. Indeed, John ratified and confirmed that joint document after Abbie’s death, so far as its provisions for Charles were concerned. By this we do not mean to infer that had John breached a fiduciary duty, as was true in Windscheffel v. Wright, supra, or had he been guilty of unconscionable dealing to the detriment or disadvantage of Charles, that equity would not step in to remedy the wrong. In truth, the dilemma in which Bernice found herself was not brought about by anything John had done or had failed to do, but rather by the untimely death of Charles prior to that of John. John’s will remained unrevoked throughout the balance of his life, and its provisions as to Charles remained as they had originally been written in 1960. What had changed was simply this: Charles had left this mortal sphere. The trial court held, and we believe correctly, that the provisions made in John’s will for the benefit of Charles had lapsed prior to John’s death. Accordingly, no title to the farm would pass to Charles under John’s will. The weight of authority in this country appears to be that a devise or legacy in favor of a person in his individual capacity — not jointly with others — will lapse upon his death prior to the testator’s decease unless the testator has expressed a different intention or unless a controlling statute otherwise directs. (57 Am. Jur., Wills, § 1425, p. 956; 3 A. L. R. 1682, Wills—Lapse—Deceased Devisee; Keasey v. Engles, 259 Mich. 178, 242 N. W. 878.) Kansas, like many if not most of its sister states, has addressed itself to this problem through the medium of its legislature, and the enactment of what is now K. S. A. 1970 Supp. 59-615 has been the end result. However, this statute does not apply here, because Charles died without issue — his widow being his sole heir. 59-615 is called into effect only when a blood relative within the sixth degree of consanguinity dies leaving issue who survive the testator. There is nothing in this will, signed jointly by John and Abbie, to suggest an intention on the part of either of them that, should Charles die before the death of the survivor, the devise or bequests to him should pass to his wife. An opposite intent is indicated. The paramount concern of the Zimmermans appears to have been for the material well being of their own kin. Except for some per sonal items bequeathed by John to Charles and/or Bernice in his codicil, relatives alone were mentioned in the will. The farm went to Charles, a nephew, and the residue to thirteen specified relatives, including Charles. Should any of them be deceased, their issue were to take their parents’ share. Absent such issue, shares were to be prorated. We see nothing to imply that a wife or collateral heirs of a deceased relative should inherit his share. The judgment of the trial court is affirmed.	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The opinion of the court was delivered by Fromme, J.: This is an appeal from an order of the district court of Reno county dismissing plaintiff’s action under the doctrine of forum non conveniens. The doctrine of forum non conveniens was recognized by this court in State of Oklahoma, ex rel., v. H. D. Lee Co., 174 Kan. 114, 118, 254 P. 2d 291. The use of the doctrine was approved by this court in Gonzales, Administrator v. Atchison, T. & S. F. Rly. Co., 189 Kan. 689, 371 P. 2d 193. In a general way it may be said the application of the doctrine is discretionary with a court when the plaintiff has a choice of forums and when the first forum chosen by the plaintiff is seriously inappropriate for the trial of plaintiff’s claim. In such case the court may decline to assume jurisdiction of the claim and the plaintiff must then proceed with its claim in the more convenient court. However, it is noted that the availability of the alternative forum or court in which to prosecute the claim is a prerequisite to the application of the doctrine. In 20 Am. Jur. 2d, Courts § 174 it is stated: “The doctrine of forum non conveniens can be properly applied only where the plaintiff could have brought the action before a court other than the court in which he did bring it, and may bring it before such other court after refusal of exercise of jurisdiction by the court in which he first brought it, in other words, had and still has an alternate forum. Accordingly the doctrine will not be applied where the plaintiff’s cause of action could be barred by the statute of limitations prevailing in the jurisdiction of the other court.” The discretionary power to decline jurisdiction should be exercised only under exceptional circumstances. Generally it is for a plaintiff to choose the place of trial. The doctrine presupposes the continued existence of a more convenient forum. Before the doctrine can be applied there should be an adequate showing that the exercise of jurisdiction would be seriously inappropriate. Two matters are considered of paramount importance, (1) plaintiff’s choice of forum should not be disturbed except for weighty reasons in the interest of justice, and (2) the action should not be dismissed unless a more convenient forum is available to the plaintiff after its claim is dismissed. (Gonzales, Administrator v. Atchison, T. & S. F. Rly. Co., supra.) In the present case plaintiff filed its claim in the district court of Reno county. The action was brought to recover taxes paid under protest to the county treasurer of that county. This is a statutory action authorized by K. S. A. 79-2005. The action accrued when plaintiff paid the first half of its 1969 ad valorem taxes to the Reno county treasurer. Plaintiff paid a total of $181,517.29 in taxes. $77,178.24 of this total was paid under protest as being illegally assessed. The claim made is that the illegal portion of the tax is based upon an assessed valuation in excess of what is reasonable and lawful. The action authorized by K. S. A. 79-2005 must be commenced within thirty days after filing the protest and paying the tax. The amount of the tax pro tested is impounded by the county treasurer in a separate fund to await the outcome of the action. When plaintiff’s action in Reno county was dismissed by the district court another proceeding was pending in the district court of Johnson county. A history of the origin and nature of that proceeding is necessary. Plaintiff is a pipeline company owning property in various states. Its pipeline and related facilities traverse 26 counties in Kansas, including both Reno and Johnson counties. Its tangible property in Kansas is valued and assessed by the state director of property valuation. When finally determined the total assessed valuation of the property is allocated by the director to each of the 26 Kansas counties through which the pipeline runs. The 1969 assessment order of the director was first appealed to the board of tax appeals. It was affirmed by the board in August 1969. Thereafter the plaintiff appealed from this order to the district court of Johnson county. The authority for such an appeal appears in K. S. A. 1970 Supp. 74-2426. The purpose of such an appeal is to determine the reasonableness and lawfulness of the order fixing the assessed valuation of all of plaintiff’s tangible pipeline properties in Kansas. Such an appeal is concerned with the valuation of plaintiff’s property in all 26 counties. This appeal was pending in Johnson county when it came time for plaintiff to pay the first half of its 1969 taxes. As previously indicated plaintiff then paid the first half of its 1969 taxes in Reno county under protest and filed the present action under K. S. A. 79-2005. Various pleadings were filed. An answer to plaintiff’s claim was filed by all defendants named in the caption of the case. Certain defendants moved to dismiss the action on the ground they were not indispensable, necessary or proper parties. The state board of tax appeals moved to dismiss on the ground it had no capacity to sue or be sued under K. S. A. 74-2433. In addition to the foregoing, a motion was filed by the director of property valuation to dismiss the action claiming that plaintiff was required to proceed in the Johnson county district court where the appeal proceedings were pending. With the case in this posture the latter motion was presented to the Reno county district court on oral arguments and written briefs. It was argued that exclusive jurisdiction was lodged in the court in Johnson county, that the assessment being attacked was a statewide assessment involving taxes in 26 counties, and that complete relief could only be had in Johnson county. In dismissing the Reno county action the court said: “. . . It is my opinion that the Johnson County District Court can decide the issues involved in this suit and would be the proper forum under the doctrine of forum non conveniens.” The court considered the other motions which had been filed as moot when the case was dismissed. We are of the opinion the court erred in dismissing the action in Reno county. The action afforded by K. S. A. 79-2005 is entirely distinct and different from that afforded by K. S. A. 1970 Supp. 74-2426. It cannot be said that plaintiff had a choice of forums in which to recover its taxes paid under protest and held by the county treasurer of Reno county. In Sinclair Pipe Line Co. v. State Commission of Revenue & Taxation, 181 Kansas 310, 311 P. 2d 342, it was held a state assessed utility (a pipe line company) could maintain an action to recover illegal taxes assessed against its property under 79-2005 and that such action was properly filed in the district court of the county in which the taxes were paid under protest. In commenting on the nature of the action provided by 79-2005 this court, in Anderson v. Dunn, 189 Kan. 227, 368 P. 2d 6, said: “The action at bar is not one to question the proceedings of the county board, but an independent action to recover taxes paid under protest. This action is not even one to review the proceedings of the State Board of Tax Appeals. [Citing cases.] “This is an independent action in which plaintiff had the burden of introducing evidence that his property had been over assessed and that he was justified in protesting his tax.” (p. 228.) The remedy provided for paying taxes under protest (K. S. A. 79-2005) is not an exclusive remedy. It remains available when other proceedings are pending between the parties, or when other proceedings are possible. In A. T. & S. F. Hospital Ass’n v. State Commission of Revenue & Taxation, 173 Kan. 312, 246 P. 2d 299, relief in mandamus was granted and the action was returned to the lower court for further proceedings to determine the sufficiency of the tax protest. An action to enjoin the collection of an illegal tax under K. S. A. 60-907 and an action to recover taxes paid under protest (K. S. A. 79-2005) can be pending in the same court. The pendency of the injunction action does not preclude a recovery of illegal taxes paid under protest. (See Anderson v. Dunn, 180 Kan. 811, 308 P. 2d 154.) Further we are of the opinion that the necessary and proper parties defendant in these two proceedings are not the same. A protest action under K. S. A. 79-2005 by its very nature is directed to the local taxing officials in the county where the taxes are protested and paid, rather than to officials of other counties or of the state; therefore, the failure of assessing officials in other counties to comply with assessment laws, or the failure of the director of property valuation to carry out his statutory responsibility of insuring that assessments be uniform and equal among the various counties throughout the state, cannot furnish the basis for granting relief in a tax protest action. (McManaman v. Board of County Commissioners, 205 Kan. 118, Syl. ¶ 6, 468 P. 2d 243.) Public officials who determine or review valuation and assessment of property for taxation purposes do not thereby become indispensable, necessary or proper parties defendant in an action to recover taxes paid under protest pursuant to K. S. A. 79-2005. (Cities Service Oil Co. v. Kronewitter, 199 Kan. 228, Syl. ¶ 3, 428 P. 2d 804.) The state director of property valuation is not a necessary or indispensable party in an action brought under K. S. A. 79-2005 to recover taxes paid under protest because of alleged improper assessment. (McManaman v. Board of County Commissioners, supra, Syl. ¶ 5.) By statute the state board of tax appeals has no capacity or power to sue or be sued. (K. S. A. 1970 Supp. 74-2433; see also Cities Service Oil Co. v. Kronewitter, supra, pp. 231, 232.) By way of contrast, the proceeding in Johnson county was an appeal from an order entered by the director of property valuation, approved by the board of tax appeals, and the appeal was authorized by K. S. A. 1970 Supp. 74-2426. Venue of this appeal is laid in any county in which any portion of the property is located. It is concerned with the reasonableness and lawfulness of the order of the director. The director of property valuation is a necessary party defendant to the proceedings and the clerk of the district court is required by the statute to issue summons to be served on the director. On the other hand the county treasurer and local taxing officials of Reno county were not proper parties and were not joined in the Johnson county proceeding. What has been said indicates that the Reno county district court is the appropriate forum for plaintiff to proceed with its action to recover taxes paid under protest to the county treasurer of Reno county. The appeal proceedings which were pending in the Johnson county district court were not appropriate for the purpose and the Johnson county district court was not an alternative forum in which plaintiff might obtain the relief contemplated by K. S. A. 79-2005. The action in Johnson county has since been tried. The order of the board of tax appeals was affirmed. On appeal to this court the judgment of the district court of Johnson county has been affirmed. (See Panhandle Eastern Pipe Line Co. v. Dwyer, 207 Kan. 417, 485 P. 2d 149.) As a result of the final disposition of the Johnson county case many, if not all, of the general issues which form a basis for plaintiff’s tax protest action in Reno county have been determined. However, because of what has been said in the opinion the order dismissing plaintiff’s claim in Reno county was in error. The effect of the judgment in Johnson county depends upon the nature and extent of the issues determined by that court. These are matters to be pleaded and proven in defense of the action in Reno county. The burden of the Reno county action remains with the plaintiff. In order to recover the taxes paid under protest it must prove that its property, in comparison to the other property in Reno county, was unreasonably, arbitrarily, capriciously or unlawfully assessed and taxed. This may prove to be a heavy burden in view of the Johnson county decision. However, it is entitled to proceed with the action in Reno county. The judgment is reversed and the case is remanded with directions to proceed with the action in accordance with the views expressed herein.	[ -76, -12, -44, -66, 11, 96, 48, -100, 81, -85, 103, -13, -23, -37, 4, 127, -5, 47, 71, -21, 81, -77, 7, 64, 126, -14, -45, 87, -76, -49, -9, -1, 76, -80, -54, -59, 70, 3, -127, -108, 14, 5, -103, 74, -8, -57, 48, 115, 18, 75, 97, -65, -29, 42, 25, -53, -24, 40, 91, -68, -15, 25, 90, 4, 127, 4, 33, -89, -102, 35, -8, 60, 4, 25, 16, -20, 115, -74, -122, 52, 111, 123, -96, 114, 99, 33, 120, -29, -88, -103, 31, -65, 31, -25, -112, 25, 41, 1, 54, 25, 117, 36, 13, -4, 110, -100, 94, -28, 55, -114, -42, -91, -25, 88, 126, 2, -29, 66, -80, 64, -50, -10, 84, 67, 56, -117, -98, -104 ]
The opinion of the court was delivered by Harman, C.: Alvin Eugene Crowe was convicted by a jury of the offense of knowingly receiving stolen property of a value in excess of fifty dollars. Sentenced under the habitual criminal act, he now appeals. Although appellant does not challenge the sufficiency of the evidence to sustain his conviction, certain background revealed by that evidence should be stated. Some time between 10:30 p. m., Saturday, July 12, 1969, and 8:30 a. m., Sunday, July 13, 1969, two Frigidaire window air-conditioners and a small radio were stolen from a junior high school building in Dodge City, Kansas, as a result of a breakin. Between 5:15 p. m., Friday, July 11, 1969, and 7:15 p. m., Sunday, July 13, 1969, a breakin occurred at the subdistrict state highway commission shop in Cimarron, Kansas, in which a General Electric air-conditioner was stolen. At about 7:00 p. m., July 13, 1969, the owner of an air-conditioner business was called to the Crowe-Rar tavern in Wichita to show appellant Crowe and his wife how to hook up 220 volt wiring for air-conditioning. There this mechanic saw the three air-conditioners, later shown to be the fruits of the two burglaries; observing the plates on the air-conditioners were missing he remarked that in this condition he would suspect they were “hot” or stolen; he asked appellant how much he had paid for them; appellant replied he had paid something like $85, $100 or $125; two or three times within several weeks prior to July 13, 1969, appellant had talked to the witness about buying air-conditioners for the tavern if they could agree on the payments. The witness helped install one air-conditioner. Later that same evening, two Wichita police officers, with the written consent of appellant’s wife, in whose name the tavern was licensed, searched the tavern. In one room one of the stolen air-conditioners had been installed; on a pool table in the room the officers found a plate bearing a brand name, and model and serial number; they also found the other two air-conditioners, one with chairs stacked around it; in another room they found two panels from one of the stolen machines as well as the radio taken from the Dodge City school; a second identification plate was found behind the bar; the two plates had been pried from the Frigidaire air- conditioners. Appellant was charged only with the receipt of the three stolen air-conditioners. Over his objection the stolen radio found in the tavern was admitted in evidence. He now complains this was erroneous because he was not charged with having received that item. He argues it was neither a prior nor a subsequent offense but was “an act which is intimately connected with the crime for which defendant now stands charged ... an integral part of the charged crime”, and therefore could not be admissible under K. S. A. 60-455 permitting evidence of other offenses to be received when relevant to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. He relies upon opinions of this court in which the evidence of other offenses was referred to as “prior and subsequent acts”, “prior acts”, “other occasions” and “other acts”. Appellant’s argument is self-defeating. It is true, as he argues, the evidence respecting the radio was not a showing of a separate and isolated crime — rather it was really a part and parcel of the crime charged. Although not charged, as he could have been, with knowingly receiving the stolen radio, apparently because of its inconsequential value in relation to that of the air-conditioners, its possession under the circumstances was nonetheless relevant, without resort to K. S. A. 60-455, as direct evidence of guilt of the offense charged, being fruit of the same act of thievery in which two of the air-conditioners were taken. Evidence otherwise relevant in a criminal prosecution is not rendered inadmissible because it may show another or a greater crime than that charged (State v. Parks, 133 Kan. 568, 1 P. 2d 261; also, see State v. Minnick, 113 Kan. 385, 214 Pac. 111). No complaint is made of the court’s instructions to the jury respecting the radio, the instructions are not before us, and nothing to the contrary being shown, we must conclude the entire matter was correctly handled by the trial court. Appellant testified as a witness in his own behalf in an effort to explain his possession of the stolen air-conditioners and exonerate himself from wrongdoing. He stated that at the time the owner of the air-conditioner business was in the tavern he had not yet purchased the three air-conditioners; that on Sunday morning, July 13, a man named Karney had brought in the air-conditioners; he had previously talked to Karney about air-conditioning; he gave Karney fifty dollars with the understanding that amount should be a down payment on whatever number of air-conditioners he finally decided to buy; he didn’t recall the price for sure. Upon cross-examination and over his objection appellant testified he had never before told a police officer or anyone that which he had just related on his direct examination. Appellant asserts this line of cross-examination deprived him of his constitutional right against self-incrimination citing the Miranda rule and our cases applying it. The cases relied on are completely different factually and can afford appellant no relief. Squarely in point are State v. Wade, 206 Kan. 347, 479 P. 2d 811, and State v. Jackson, 201 Kan. 795, 443 P. 2d 279, cert. den. 394 U. S. 908, 22 L. ed. 2d 219, 89 S. Ct. 1019, where the same issue was decided adversely to appellant’s contention. In the latter we held: “The procedural safeguards securing to the accused the privilege against self incrimination during custodial interrogation do not apply to cross-examination of a defendant who has taken the witness stand in his own defense. “When the defendant takes the stand as a witness he takes his integrity and character with him, and he cannot complain because he is subjected to the same inquires and tests as other witnesses.” (Syl. ¶¶ 1 & 2.) We further stated: “The state had the right to test the credibility of the witness and impeach the testimony. This is a time when ‘silence speaks louder than words.’ The question immediately arose — if the appellant had such a positive defense why had he not so informed the law enforcement officers during or after his arrest? Normally an innocent man would take the first opportunity to state the fact. Silence until the time of trial casts a serious doubt upon appellant’s testimony and the state had a right to refute any reason he gave for his claimed abnormal conduct.” (p.798.) The testimony appellant complains of was properly received as-an attack upon his credibility as a testimonial witness. Appellant’s last contention is the trial court erred in invoking the provisions of the habitual criminal act (K. S. A. 21-107a) in that it was never established that a prior Texas conviction received in evidence against him was actually a conviction for a felony. The contention has no merit. The conviction was evidenced by a properly authenticated copy thereof. Appellant was identified by a Texas parole officer as the subject of that conviction. The conviction was shown to be a second offense of illegal possession of a dangerous drug. Texas law provides that any person convicted for a second or subsequent time of illegal possession of a dangerous drug is guilty of a felony and prescribes as punishment therefor confinement in the penitentiary for not less than two nor more than ten years (2 Vernon’s Ann. P. C. of Texas, 1970-1971 Supp., Art. 726 [d], p. 42.) Texas law further defines a felony as any offense which may be punishable by death or by confinement in the penitentiary (1 Vernon’s Ann. P. C. of Texas, Art. 47, p. 86). The sentence actually adjudged in appellants Texas conviction was confinement in the Texas penitentiary for ten years. K. S. A. 21-107a by its terms is applicable when there are prior felony convictions committed “in or out of this state.” It is not required that the foreign conviction be a felony under the laws of this state; it is sufficient that the offense was a felony as defined by the laws of the other state or jurisdiction (Tyrell v. State, 199 Kan. 142, 427 P. 2d 500; State v. Paxton, 201 Kan. 353, 440 P. 2d 650). The trial court did not err in invoking the provisions of the habitual criminal act. Although not raised by appellant one further matter respecting his sentence should be determined. The sentence adjudged against him in this case was confinement for not less than two years nor more than ten years. The penalty prescribed upon conviction of receiving stolen property is the same as for stealing the property so received (K. S. A. 21-549). The prescribed penalty for stealing property of a value in excess of fifty dollars is “confinement at hard labor not exceeding five years” (K. S. A. 21-534). The habitual criminal act effective when appellant’s sentence was pronounced provides that every person convicted a second time of felony shall be confined not less than double the penalty of the second conviction. Hence the proper sentence should have been confinement for a term not exceeding ten years and only so much of appellant’s sentence as provides for such confinement can be approved as valid (State v. Hale, 206 Kan. 521, 525-526, 479 P. 2d 902.) The trial court is directed to enter the corrected sentence of confinement for not to exceed ten years upon its records in this case. Appellant’s presence in the trial court is not necessary for this correction. As so modified the judgment is affirmed. APPROVED BY THE COURT.	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The opinion of the court was delivered by Price, C. J.: Defendant appeals from a conviction of the offense of possession and control of a pistol after a previous conviction of burglary and larceny — as denounced by K. S. A. 21-2611. At about 3:00 o’clock in the morning of June 22, 1969, two Wichita police detectives stopped at a club to make a routine check. In the parking lot was a two-tone blue car which they recognized as one frequently driven by defendant McCoy. The club was known by them as a hang-out for convicted felons. Upon entering they saw defendant sitting at a table. They knew of his prior conviction of burglary and larceny. Upon seeing them he appeared quite “nervous”. As he stood up to leave the table his slipover shirt raised and the officers saw what appeared to be a pistol. Because of the crowded condition of the club and prior threats made by defendant to them, the officers decided not to arrest him on the spot. From their police car they called the dispatcher and reported that defendant — a convicted felon, would soon be leaving the club in a certain described car and that there was reason to believe he was carrying a pistol. They requested that other officers on the “beat” be alerted. This was done, and about an hour later officers saw the car being driven a short distance from the club. As they prepared to stop it — which was being driven by defendant —they noticed that the muffler was defective. Upon request defendant produced a driver’s license. He said the car belonged to a friend, that it was the first time he had driven it, and that he knew nothing about the defective muffler. When asked if they could search the car defendant became “very nervous” — saying that he did not know what was in it and that “there was nothing in it of any interest to them.” In the meantime other officers had arrived. When shining a flashlight through the window on the driver’s side they saw on the floor what appeared to be a pistol partially wrapped in a red cloth. They opened the door and removed it. It was a pistol identical in appearance to the one observed on defendant’s person earlier in the club. Later that day charges were filed alleging a violation of K. S. A. 21-2611. Defendant was convicted as charged. In this appeal three contentions are made. The first appears to relate to the sufficiency of the evidence to support the conviction, and some mention is made of the absence of “intent” to possess. No objection was made to the instructions, and in them the jury was correctly instructed on the subject of intent. It is readily apparent the jury simply did not believe the defendant’s evidence as to ownership of the car and how the pistol happened to be in it. The evidence was amply sufficient to support the conviction. The principal point urged is that it was error to admit in evidence the pistol and bullets it contained — the argument being that they were the fruits of an illegal search and seizure. This point likewise is without merit. The pertinent facts and circumstances will not be repeated. Of a certainty, they established that the officers, armed with the information they had, were fully justified in believing the car to contain an object in violation of the law. See State v. Wood, 197 Kan. 241, 416 P. 2d 729; State v. Robinson, 203 Kan. 304, 454 P. 2d 527; State v. Ayres, 203 Kan. 376, 454 P. 2d 534 and State v. McMillin, 206 Kan. 3, 476 P. 2d 612. Finally, it is contended that defendant’s motion for a new trial was erroneously overruled because of the admission in evidence of the pistol and bullets. What has been said disposes of this point. An examination of the record discloses no error. The judgment is affirmed.	[ -16, -5, -7, -66, 27, 96, 43, -72, 99, -91, -26, 83, 41, 66, 5, 105, 121, 93, 84, 105, -18, -74, 87, -127, -42, 51, -39, -43, -69, 95, -26, -42, 12, 112, -62, 93, 6, -56, -89, 84, -114, 7, -104, 80, 112, 72, -92, 42, 50, 15, 49, -97, -29, 42, 26, -53, -23, 40, -53, -87, -64, -8, -103, 77, -1, 20, -77, 34, -100, -123, -16, 26, -100, 49, 0, -8, 115, -90, -110, 116, 109, -117, -92, 38, 98, 33, 57, -49, -24, -87, 62, 59, -81, -90, -104, 73, 72, 33, -106, -97, 103, 18, 15, -12, -5, 84, 87, 108, 11, -49, -76, -111, 77, 48, 2, -40, -21, -93, 32, 113, -57, -30, 92, 85, 114, -101, -114, -112 ]
Per Curiam: Complaint was filed with the Board of Law Examiners of the State of Kansas (the board) charging Wayne W. Grindol of Jewell, Kansas (the respondent) with violating the Canons of Professional Ethics by engaging in the business of banking while continuing to practice law. The original complaint was made in 1968. Thereafter the Canons of Professional Ethics were recodified and adopted as the Code of Professional Responsibility. (See Rule No. 501, 205 Kan. lxxvii, effective July 1, 1970.) The board adopted the recommendations of a hearing panel and found that respondent’s conduct had violated Canon 27 of the Canons of Professional Ethics which relates to improper advertising by a lawyer. They further found that respondent would be violating the following disciplinary rules of the Code of Professional Responsibility if he continued in the business of banking while engaging in the practice of law. The disciplinary rules referred to are: “DR 2-101 (A) A lawyer shall not prepare, cause to be prepared, use, or participate in the use of, any form of public communication that contains professionally self-laudatory statements calculated to attract lay clients; as used herein, public communication’ includes, but is not limited to, communi cation by means of television, radio, motion picture, newspaper, magazine, or book. “DR 2-102 (E) A lawyer who is engaged both in the practice of law and another profession or business shall not so indicate on his letterhead, office sign, or professional card, nor shall he identify himself as a lawyer in any publication in connection with his other profession or business. “DR 2-103 (A) A lawyer shall not recommend employment, as a private practitioner, of himself, his partner, or associate to a non-lawyer who has not sought his advice regarding employment of a lawyer. “DR 2-103 (C) A lawyer shall not request a person or organization to recommend employment, as a private practitioner, of himself, his partner, or associate, except that he may request referrals from a lawyer referral service operated, sponsored, or approved by a bar association representative of the general bar of the geographical area in which the association exists and may pay its fees incident thereto. “DR 2-103 (D) A lawyer shall not knowingly assist a person or organization that recommends, furnishes, or pays for legal services to promote the use of his services or those of his partners or associate. . . . “DR 2-103 (E) A lawyer shall not accept employment when he knows or it is obvious that the person who seeks his services does so as a result of conduct prohibited under this Disciplinary Rule.” (See Code of Professional Responsibility, supra.) Prior to a hearing before the panel a general stipulation of facts was entered into by the parties. It was stipulated respondent had been notified that any lawyer who is engaged in the business of banking should not continue his practice of law; that respondent continued in the business of banking and continued to practice law after being notified; that at the bank respondent does not show by sign, lettering or otherwise that he is a lawyer; that respondent has a separate law office with an outside entrance at his home where he maintains his law library and equipment and where he conducts his law business; that his legal stationery lists no connection with the bank and the postoffice address and telephone number given on his legal stationery are not those of the bank; that he maintains no listing as an attorney in the local telephone directory and respondent uses no professional card; that the bank has no trust powers and respondent does not act as an attorney for the bank; that respondent is the only attorney in Jewell, a town of approximately 500 people. In addition to this stipulation there was one additional bit of evidence. A lawyer testified a certain real estate contract was pre pared and signed in the Citizens State Bank at Jewell. This lawyer-witness testified he was present when one of his clients sold some real estate to a purchaser. The purchaser was represented by the respondent. After a contract was drawn and executed the purchasers attorney (respondent) arranged with his client, the purchaser, to examine the title to the land and to prepare the deed. There was no evidence as to how or when respondent was retained by the purchaser to represent him in this matter. After considering the report of the panel the board made the following recommendation to this court: “That the respondent’s license to practice law be suspended by the court until such time as the respondent presents satisfactory evidence to the court that he is no longer actively engaged in the operation of a bank under circumstances which bring him into contact with the public in his capacity as a banker.” We have searched the record to find evidence of any violation of the disciplinary rules previously set forth in this opinion. There is no substantial evidence of a violation of any one of these disciplinary rules. There is nothing to indicate that Mr. Grindol has used his position in the bank to improperly solicit legal business or advertised himself as a lawyer. There is no evidence that he represented clients with legal interests which conflicted with the interests of the bank. If we adopt the recommendations of the board we must hold that a lawyer may not engage in any other business which brings him in contact with the people of his community, be that business banking or be it abstracting of titles, insurance or loans. This we decline to do. We hold there is nothing unethical per se for a practicing lawyer to be an officer and a director of a bank so long as he adheres to the disciplinary rules set forth in the Code of Professional Responsibility. Judgment is for respondent.	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The opinion of the court was delivered by Kaul, J.: The appellant, Lee Brooks, was expelled from the Petroleum Club of Wichita. He instituted this action in mandamus to compel his reinstatement and further sought to recover actual and punitive damages from certain of the defendants as a result of his alleged wrongful expulsion. Appellee Petroleum Club is a nonprofit corporation. It is primarily a social club whose members are connected with the petroleum industry. Other appellees are past and present officers or directors of the Petroleum Club. Appellee Roach is manager of the Club. For convenience appellant will be referred to as Brooks or Plaintiff The appellees will be referred to collectively as defendants or identified as individuals when necessary. On December 13, 1967, the Club’s President, on behalf of the Board of Directors, addressed a letter to Brooks informing him that it had been brought to the Board’s attention that he had not been conducting himself in the Club’s quarters as a gentleman by using language not in keeping with the best interests of the Club, and that he had been guilty of drinking excessively. The letter also informed Brooks that his conduct would be reviewed from time to time. This letter was followed by a second, dated January 25, 1968, in which the Board informed Brooks that apparently the first letter had not accomplished its purpose; that his attitude and vulgar language had created needless embarrassment to members, their wives, and management of the Club. Brooks was further informed in the letter as follows: “After careful consideration and discussion, the Board unanimously instructed the proper officer to notify you, as provided in the Club by-laws, Section 6, Article 12 (sic) [Art. VII.]. You are hereby notified to appear before a special Board meeting, Thursday, February 1, 1968, at 10:00 a. m. in the Board Room at the Petroleum Club, and present your case as to why you do not feel obligated to follow the rules of the Club and why you should not be suspended or expelled from the Club.” At the request of Brooks the special board meeting was continued from February 1 to February 5,1968. Brooks appeared at the special meeting, which was attended by the President and ten other members of the Board of Directors. Minutes of the meeting were taken; the nature of the proceedings and the events which took place at the meeting were developed by the depositions of plaintiff and of those directors and officers who were present. At the conclusion of the special meeting, the Board of Directors, either by voice or a show of hands, unanimously voted to expel Brooks. This lawsuit followed. After pleadings were filed both parties took a number of depositions and filed several affidavits in support of motions for summary-judgment filed by each party. Plaintiff’s motion was for a partial summary judgment relating to the mandamus count of his petition. In his motion plaintiff set out pertinent By-Laws and House Rules of the Club and alleged that the depositions showed that the Directors and Officers of the Club failed to adhere to the By-Laws and House Rules in a number of particulars which will be identified and discussed. Defendants in support of their motion for summary judgment also submitted depositions and affidavits of various members and employees of the Club. The trial court overruled plaintiff’s motion and sustained the motion of all of the defendants for summary judgment on each of plaintiff’s claims for relief. The court found that there was no genuine issue of material fact remaining for trial; that the Board of Directors of the Petroleum Club acted in substantial compliance with the By-Laws and House Rules of the Club; and further noted that the court would not substitute its judgment for that of the Board of Diretors in determining whether or not plaintiff should have been expelled. This appeal followed. On appeal plaintiffs centers his attack on the trial court’s finding that the By-Laws and House Rules of the Club had been substantially complied with by the Board of Directors in expelling plaintiff. Plaintiff first contends that no written complaint was made against him which he says is required by the provisions of Art. X of the House Rules which reads: “Article X. Complaints. Section 1 . . . All complaints against the operation of the Club, other members and their guests, shall be made in writing, signed and addressed to the house committee.” By way of answer to plaintiff’s contention on this point defendants say that the complaint in writing, referred to in the House Rules, has nothing to do with expulsion of a member, which is governed by the By-Laws. Defendants contend that Art. X of the House Rules was enacted for the protection of the Directors, management and employees, and not for the benefit of the person against whom the complaints were registered. Defendants point out that the Articles of Incorporation provide in part: “The conditions of membership shall be fixed by the by-laws.” and that the section of the By-Laws which deals with expulsion of members is Section 6 of Article VII. It reads: “Article VII. Admissions, Resignations, Suspensions and Expulsions. Section 6. Discipline. A member may be reprimanded, suspended or expelled for cause, by a vote of two-thirds of all the Directors, but only after such member shall have had an opportunity to be heard. One week’s written notice of the time and place when the Board will consider the charges accompanied by written statement thereof, shall be considered as affording such member sufficient opportuity to present his defense. Cause for reprimand, suspension or expulsion may consist of violation of the By-Laws or the rules of the Club, or of conduct which in the opinion of the Board of Directors, is prejudicial to good order, discipline or the general welfare of the Club.” We believe the position taken by defendants in this regard is correct. Article VII of the By-Laws requires one week’s written notice of the time and place when charges will be considered and that the notice shall be accompanied by a written statement of the charges, but no mention is made of a written complaint. Furthermore, in his deposition plaintiff admits that he knew of the charges. His testimony is as follows: “Q. You are contending here that you didn’t understand what they were accusing you of? In other words, you knew that their complaint was that — just what it said in that letter? “A. Bad language, excessive drinking. “Q. Excessive drinking and bad language? “Yes. Yes, but they didn’t show me I was guilty of that. “Q. Well, that is another question. You understood that is what the charge was? “A. Yes. “Q. You knew the charge. “A. Certainly.” Where a member of a voluntary organization voluntarily appears before a committee or board, constituted for the purpose of hearing a dispute as to his membership, he is estopped from denying jurisdiction with respect to either person or subject matter. (6 Am. Jur. 2d., Associations and Clubs, § 35, p. 464.) Since plaintiff appeared before the Board of Directors it was immaterial what kind of a notice he had. (Johnson v. Prince Hall Grand Lodge, 183 Kan. 141, 325 P. 2d 45; Harris v. Aiken, 76 Kan. 516, 92 Pac. 537; Moore v. National Council, 65 Kan. 452, 70 Pac 352.) Plaintiff next contends that the Board of Directors failed to afford him a hearing, as provided by the By-Laws. Plaintiff complains that the Board of Directors refused to give him the names of the members or other persons who had made complaints against him. He further complains that he was not permitted to call witnesses to testify in his behalf. The only provision for a hearing is that set out in Article VII, Section 6 of the By-Laws “such member shall have had an opportunity to be heard.” Obviously, plaintiff was afforded an opportunity to be heard. Defendants say that plaintiff never denied the charges of use of vulgar language, loud tone of voice and objectionable conduct, but took the position that his conduct was not objectionable, and that if the Board of Directors disagreed their remedy was to exclude women from the barroom. Defendants contend that since plaintiff did not deny the charges, no issue of fact was created and thus there was no point in allowing plaintiff to call his drinking companions as witnesses. The By-Law in question does not grant to a member the right to a formal hearing according to a specified procedure, but only affords the right to have an opportunity to be heard. In this case the charge against plaintiff, which he well understood, did not consist of a single act of misconduct, which for the purpose of identification must necessarily be pinpointed as to time and place, but consisted rather of continuous offensive conduct that did not lend itself to statement in the terms of specific time and place. A perusal of the testimony of the Directors gives a clear description of what took place at the meeting. The testimony of the Directors and Brooks himself clearly shows that the position adopted by him was not a denial of the conduct with which he was charged, but instead an assertion that he should be able to pursue that conduct if he so desired. Brooks stated he told the Board of Directors that he felt his conduct was all right and he wanted to be either in or out of the Club and that it was his recommendation that a “mens bar be created.” The testimony of Brooks and that of the Directors leads to the conclusion that the question framed in the meeting was whether the established code of conduct of the Club should be replaced by Brooks’ own code of conduct. The position adopted by Brooks left no issue of fact to be determined by the Board of Directors. Don Hollar, President of the Club at the time of the meeting, testified as follows: “. . . At that meeting, we informed Mr. Brooks that he had used embarrassing, profane and gutter language in the presence of ladies and had embarrassed the Club. It is my opinion that this was a specific statement. We did not describe individual incidents because he never denied using pro fanity and, in my opinion, it never became an issue at all in the hearing as far as I am concerned. The issue seemed to be that he thought he had a right to say these words and never did deny using profanity at all at the hearing, according to my recollection. He did ask who made the complaints, other than the manager. I informed him that we would not get into name-calling. If he had denied using profanity, I would have told him the names of the witnesses, but since he had not denied it we didn’t make any issue out of it and it was not discussed any further.” Brooks asserts that he had prepared a list of names of the people he wished to call as witnesses. The list referred to was furnished to attorneys for the Club as part of discovery and depositions which were taken from all of those persons listed. They were members of the Club who were friends and associates of Brooks, who frequented the Club bar with him. In giving their deposition each was asked in substance if he had been called to testify at the meeting would he have denied that Brooks had used profane and vulgar language in the Club bar. Without exception they all answered in the negative to the effect that they could not deny that Brooks used essentially the language with which he was charged. Thus, in any event, it cannot be said that Brooks suffered any loss of substantial rights by reason of the Board's refusal to call his friends as witnesses. From a close examination of the record we are led to the conclusion that Brooks was heard by the Board on the only issue framed by him, i. e., that his standards of conduct should be adopted by the Club in lieu of those established. Finally, plaintiff contends that his expulsion was improper because the Board did not vote by “ballot” as specified in the ByLaws. In this connection subsection (a) of Section 1, of Article VII, of the By-laws grants the Board of Directors the following powers: “(a) To admit applicants for membership, and to fine, suspend or expel members, by ballot, for nonpayment of dues, assessments or other obligations to the Club, or for conduct incompatible with the interests of the Club;” Section 6 of Article VII of the By-Laws deals specifically with expulsion, in the following language: “A member may be . . . expelled for cause, by a vote of two-thirds of all the Directors. . . .” It is apparent that the words “ballot” and “vote” are used interchangeably in the By-Laws, and we find no place therein, and our attention is directed to none, which requires that a secret ballot or secret vote be taken. The record shows, and it is not denied by plaintiff, that a vote was taken at the Board meeting, either by voice or a showing of hands. The record further reveals that the vote was unanimous by the Directors present. This action was substantially in compliance with the Club By-Laws. In Johnson v. Prince Hall Grand Lodge, supra, expulsion was challenged on the grounds that the charges were unsigned, and that the method of balloting used by the lodge was improper. The court addressed itself to the contentions in these words: “In determining whether a benevolent or fraternal organization has fairly exercised its disciplinary powers, close adherence to the form of legal procedure is not required. It is sufficient if the accused is accorded those essentials which make for justice, rather than for form, (citing cases).” (p. 144.) Further in the opinion it was stated: “Where the accused has been given opportunity to defend himself and the proceedings have been conducted fairly and in good faith, no grounds exist for questioning their regularity or sufficiency. The question of whether the conduct of the plaintiffs in the case at bar was such as to warrant their suspension from the Grand Lodge is not before us. That issue is a matter of internal government and discipline of the order and is for its final determination. . . .” (p. 145.) We find the By-Laws to be reasonable, consistent with the charter of the club and not in violation of fundamental concepts of due process of law. Proceedings based upon proper by-laws of a voluntary association, constitute due process of law as to members of such association. (Moore v. National Council, supra.) The record shows that Brooks was given actual notice of the special Board of Directors meeting. He was apprised of the charges against him and admitted his awareness of those charges. He was afforded an opportunity to be heard. He did not deny the charges, but instead asserted in essence that his membership in the Club entitled him to conduct himself in the manner he chose and that the Club’s remedy was to change the conditions and operation of the barroom, rather than to expel him or for a change in his conduct. We believe plaintiff was given an opportunity to defend himself and that the proceedings were conducted fairly and in good faith; thus no grounds exist for judicial questioning on their regularity or sufficiency. The judgment is affirmed.	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The opinion of the court was delivered by Fatzer, J.: This is an appeal from the judgment of the district court sustaining the validity of a survey made by the county surveyor of Haskell County, to establish the north-south half section line between the west half and the east half of Section 26, Township 27 South, Range 34 West, of the 6th Principal Meridian. The appellant Frank Frey owned the northeast quarter, and the appellant Paul J. Cook owned the southeast quarter of Section 26. As hereafter indicated, the appellee, Master Feeders II, Inc., had contracted to purchase the west half of Section 26, and it received a warranty deed to the real estate on July 31,1969. There is no real dispute of the pertinent facts which follow: During March or April, 1969, Sam Moler, the Haskell County surveyor, was requested by a Mr. Oneal, the then owner of the northwest quarter of Section 26, to establish the north-south half section line in that section. Moler commenced preparation of the paper work and was prepared to send out notices of the survey when Oneal advised him he had a land transfer coming up and to hold up on the survey. Thereafter, and on a date not disclosed by the record, Master Feeders entered into a contract to purchase the west half of Section 26. During June, 1969, Moler was contacted by J. R. Ham, who represented Master Feeders .which then occupied the west half section, for a survey of the north-south half section line of Section 26. The record does not disclose the date of the request for the survey, but it was originated as a private survey for the reason Master Feeders did not feel the adjoining owners should pay the expense of the survey. Moler commenced the survey in June, 1969, and, with the help of two assistants, proceeded to establish the respective comers and boundaries of Section 26, and to locate the north-south half section line pursuant to recognized survey procedures and engineering practices. Moler testified the survey began with a search for any existing corners; that there were no government stones or markers in the area; that the original government corners being charcoal stakes, pits and mounds, did not last very long, but that through records in his office it was evident to him the iron pins that were established in 1925 and during the early 1930’s were established from a considerable number of government comers, and that the survey was based upon three of such established comers in the vicinity. When the survey disclosed the half section line was so “far off” that there would be a shift to the east of the line fence which went down the north-south center line of Section 26 — as much as 50 feet on the southwest corner of Cook’s land and approximately 81 feet on the southwest corner of Frey’s land — a meeting was held in Moler’s office at which time Ham, Frey and a Mr. Guyer were present. Moler showed what had been done, and explained the result of the survey. Master Feeders was concerned about the location of the half section line, and an attempt to negotiate a property change was made between Master Feeders and Frey. Frey did not acquiesce in changing the half section line, and advised Moler that if there was a legal way to establish a line, that should be done. A legal survey was intended by those present to mean a survey conducted according to law. Moler commenced proceedings to conduct a legal survey, and on July 3, 1969, caused notice of the survey to be published pursuant to K. S. A. 19-1423, and on July 24, actual service thereof was made upon the adjoining landowners, J. R. Ham, representing Master Feeders, and Frank Frey, Satanta, Kansas, and Paul J. Cook, Craig, Colorado. At that time, Moler knew Master Feeders had contracted in writing to purchase the west half of Section 26. The notice of survey recited that pursuant to a request by Ham for a survey of the boundary line between the west half of Section 26 and the east half of that section, “and to establish the corners and boundaries between said tracts,” the county surveyor would on July 28, 1969, proceed to make the survey and establish the corners and boundaries between the tracts as provided by law, and that the costs would be apportioned between Master Feeders and the occupants affected thereby. The notice further recited the survey would begin at 10:00 o’clock a. m. on July 28, 1969, at the northwest corner of Section 26, and proceed as provided by law. It further stated that “final viewing” would begin at 2:00 o’clock p. m. on that date at the northwest corner of Section 26, and proceed as provided by law. At 10:00 o’clock a. m. on July 28, 1969, pursuant to the notice of survey, Moler went to the northwest corner of Section 26, and he was the only one who appeared. The survey had already been completed and he did no chaining. However, he went around the section and remarked the corners that had previously been established by relocating the iron bars that had been driven at the corners. The report of the private survey made in June was on file in his office and the report of that survey “set” this survey. In other words, after the notice of survey was effective, Moler interpreted the private survey as a legal survey on July 28. Frey had notice and knew of the survey in June and Moler talked to him concerning it, and he was aware of what was going on. At 2:00 o’clock p. m. on July 28, Moler went to the northwest comer of Section 26 for the “final viewing” of the survey. At that time, J. R. Ham, Frank Frey, Paul J. Cook appearing by Lelyn Braun, his attorney from Garden City, two county commissioners, and one or two other interested parties, were present. The record discloses the following: “Q. Now by being there at the final survey or final viewing what do you mean by that? “A. Well the methods and procedures of the survey are then explained and any questions anybody has at that time it is for them to find out how it was done as to if they have any need to appeal or if they don’t like it, it is up to them to say so at that time.” Moler explained the procedures of establishing respective corners and boundaries of Section 26, and the appellants offered no wit nesses or testimony at the final viewing to challenge the procedures followed, or the correctness of the survey. On the following day, July 29, Moler filed the report of the survey of Section 26 in his office as being the official survey to determine the boundary line between the east half and the west half of Section 26. Thereafter, the appellants, Frey and Cook, timely perfected appeals from the report of the survey to the district court of Haskell County pursuant to K. S. A. 19-1426. While the appellants’ statement of points make several assignments of error, it may be said their complaint concerns four principal points. First, the survey in this case was actually a private survey made in June, 1969, while K. S. A. 19-1425 makes no provision for a survey prior to the date fixed in the notice of survey — in other words, that no survey actually occurred at the time and place stated in the notice of survey. Second, the county surveyor was not a licensed surveyor when the actual survey transpired. Third, that notice of the survey was not sent to all interested landowners as provided in K. S. A. 19-1423, who could be affected thereby. Fourth, the district court should have rejected the county surveyor’s report, and it did not amend or modify the same by correcting an admitted error of the county surveyor in compiling the report. It should here be noted the appellants make no claim the findings of the surveyor were incorrect concerning the location of corners or boundary lines set by the survey, which were computed in accordance with the plats and field notes of the original government surveys of 1884 and 1887 on file in the surveyor’s office. Likewise, they make no objection as to the correctness of the “Report of Survey,” except with respect to the sentence which reads, “[w]ith this information I established the NW comer and the SW corner of Section (26).” Moler testified the phrase “and the SW comer” was a typographical error, and should read, “and the NE corner.” The district court did not correct this minor discrepancy, and it is conceded by the parties that to make the report speak the truth, it should be corrected in this respect. The appellants’ first contention no survey actually occurred at the time and place stated in the notice of survey, and that they were denied the opportunity to examine the procedures followed and to know what actually transpired with respect to the change of boundaries, is not well taken. At the trial, the district court heard Moler’s testimony concerning the methods and procedures he fol lowed in making the survey which began at an established corner of Section 25 that had been documented in his office. The survey was based upon that corner, and two other established corners in the vicinity, which were also documented in his office. The report of the survey was admitted in evidence, which stated the survey began on July 28, 1969, at the northwest corner of Section 26, at 10:00 a. m. Moler was the only one who appeared and he remarked the corners of Section 26 which had previously been established by iron bars he had driven into the ground. While the surveyor did not perform actual chaining and measuring operations at the time specified in the notice of survey, that procedure was fully explained to all the interested parties at the final viewing on July 28, and, under all the facts and' circumstances, we think the surveying procedures and remarking of the corners at the time mentioned in the notice of survey, was a sufficient and substantial compliance with K. S. A. 19-1425. Moreover, having received proper notification, which is conceded, there was nothing to prevent the appellants from accompanying Moler during his surveying procedures on the morning of July 28. In addition, the appellants are in no position to complain of lack of opportunity to discuss surveying methods for the evidence clearly disclosed they were not only present in person and by counsel at the final viewing, but they produced no witnesses and offered no evidence, or performed any other act at that time, to change or alter either the procedure, or the corners and boundaries established by the survey. On that point, the district court stated: “The county surveyor’s return shows that on July 28th at 2:00 P. M. Cook and Frey were represented by Lelyn Braun, a practicing attorney of Garden City, therefore the Court approves the survey for the reason that there is no showing that the county engineer rejected any testimony offered to him and that the attorney knew that he had an opportunity to make such offer. If such offers were made, the record is silent as to the same and since the statute uses the word may instead of shall the court feels that said survey should be approved. The court feels that counsel should not be permitted to invoke pure technicalities when he was present and could have presented the same or at least made a showing that he tried.” The appellants’ second contention that Moler was not a licensed surveyor when the actual survey transpired, is not well taken. The record affirmatively shows Moler was a practical and competent surveyor, having performed that work since 1957, and that he followed recognized surveying procedures and engineering practices in making the survey. The Legislature has provided that one is qualified to hold the office of county surveyor who is a practical and competent surveyor. K. S. A. 19-1403. There is no statutory requirement that a license be held, since the position of county surveyor is not limited strictly to technical, educational qualifications. The record clearly shows Moler possessed the required practical experience and ability to be a competent surveyor. It is next claimed the survey was made without proper notification to all affected parties. The record discloses otherwise. Notice was given by the county surveyor and duly published as required by K. S. A. 19-1423, and service thereof was made upon all affected parties in accordance with the statute. On this point it is further claimed that because Master Feeders did not receive a deed to the west half of Section 26 until July 31, it was not the record owner on July 3, when notice of the survey was first published, or when service was made on persons who may be affected by the survey, or on July 28, when the final viewing occurred and the survey approved. It is true the record shows that a Mr. and Mrs. Alexander were the record owners of the west half of the section on July 28, but, as previously indicated, Master Feeders had contracted to purchase the real estate and was in possession of the property. If there was substance in the contention, the only person who could raise the question of improper notice would be a party who was not properly notified. (Close v. Huntington, 66 Kan. 354, 71 Pac. 812.) Lastly, it is contended the district court should have rejected the report of survey, and that it did not amend or modify the admitted typographical error of the county surveyor. As indicated, Frey knew of the survey in June, since Moler talked to him concerning it, and he was present at the meeting in the county surveyor’s office when the survey was discussed. At that meeting, and knowing the survey would require a shift of the line fence to the east, Frey advised Moler that if there was a legal way to establish the half section line, that should be done. In effect, Frey’s statement constituted a request that the results of the survey made known to him and Master Feeders should be confirmed by official notice and final viewing. We think the appellants may not complain of the district court’s approval of the survey when they make no complaint that the findings of the surveyor were incorrect. It is clear the typographical error in the surveyor’s report describing his location of the northwest corner and the northeast corner of Section 26 in no way operated to the prejudice of the appellants. However, this court directs the district court to correct that error upon entering judgment in this case. As modified, the judgment of the district court is affirmed.	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The opinion of the court was delivered by Johnston, C. J.: The appellant, Elizabeth C. Ross, began this action to quiet her title to certain land situated in Douglas county of which she was in possession. From the facts as found by the trial court it appears that on April 22, 1904, W. C. Ross was the owner of the land in question, which' was of the value of about $2500 and was practically all the property which he did own. He was then sixty-nine years of age and not in rugged health. His wife had died about a year before that time, and while they had no children of their own, the appellees, Mrs. Nellie D. Perkins and Mrs. Ida M. Stewart, who were nieces, had been members of the family for a considerable time and had been treated to ■a great extent as their own children. On the day mentioned, in accordance with a prearranged plan, Ross conveyed an undivided one-hálf interest of his property to each of the appellees in consideration that each should pay one-half of his debts and funeral expenses at his death and that they should erect a $200 monument at-his grave. On separate papers attached to the deeds and made a part of them was the statement: “It is especially understood that should I marry during my life time that the property thus deeded is not to be sold or incumbered during the life time of my wife, should I elect to have one, and that in such case you are to meet one-half of her funeral expenses, and that she is to retain undisturbed possession and use of same during her natural life time, and after her death and burial you are to inherit one-half of personal property then on hand.” ; . The deeds were placed in separate envelopes, which were sealed and the names of respective appelles endorsed thereon, and these, in turn, were inclosed in a large envelope and delivered to Henry Benson, a friend of the grantor, who was an officer in a Lawrence bank. It appears that early in February, 1904, Ross began a correspondence with the appellant, then a resident of the state of Washiiigton, which led to a marriage engagement, and it -was arranged between them that she shoüld come on to Lawrence, arriving thére on April 20, 1904, when 'they would be married. She Came, but did not arrive until April 23, and bn that day they were' married. Thereafter "they lived together in the Ross home on' a part of the land in question until Ross’s death oh September 29,1911. During this time she sold some property of her own for $500 and expended $200 of the amount bn the Ross land and gave the balance of it to hér sons. Before her marriage to Ross she had a general knowledge that he owned some land, the exact extent of which she did not know. Shortly after the marriage she learned that he had made some arrangement as to the property, but did not know the exact disposition made of it until after his death, but she supposed all the time that he had made a will by the terms of which she was to have only a life interest in the property. On the day after his death the appellee, Mrs. Perkins, obtained the deed executed to her from the custodian, Mr. Benson, and placed it on record, and the deed to appellee, Mrs. Stewart, was procured by her and placed on record on October 2, 1911. From all the testimony in the case, none of which has been brought up on this appeal, the court found that the deeds had been legally delivered to the appellee; and another finding was that the conveyances operated as a fraud upon the marital rights of the appellant. It was decided by the court that the deeds should be set aside only so far as they tended to defeat the rights of the appellant to inherit a one-half interest in the land, and it was adjudged that an undivided half of the land was owned by appellant and that each of the appellees had an undivided quarter in the land, and, further, that the life estate provided for in the deeds should be terminated by the judgment. The first contention of appellant is that the court erred in holding that there was a valid delivery of the deeds. It is true, as appellant contends, that before a deed can operate as a transfer of title there must be an intention that it should become effective as a present conveyance, and this, intention is to be obtained from the words and acts of the grantor. It is likewise true that a complete legal delivery implies a surrender of control of the instrument by the grantor and an assent or acceptance by the grantee. (Wuester v. Folin, 60 Kan. 334, 56 Pac. 490.) A formal manual delivery of the deed, however, by the grantor to the grantee is not essential, nor is it necessary that any set phrase should be used as a declaration of intention. (Kelsa v. Graves, 64 Kan. 777, 68 Pac. 607; Bremyer v. School Association, 86 Kan. 644,122 Pac. 104.) It is settled, too, that if the grantor deliver the deed to a third person with the intention to part with control of the instrument and to divest himself of title, it will constitute a transfer, although it is agreed that the deed shall not be recorded during the lifetime of the grantor. (Zeitlow v. Zeitlow, 84 Kan. 713, 115 Pac. 573.) It has also been held that delivery of a deed to a custodian, to be passed to the grantee at the death of the grantor, and which in effect provided that the possession and enjoyment of the property by the grantee should be postponed until the grantor’s death, would be construed to mean that title was to vest when the delivery to the custodian was made. (Nolan v. Otney, 75 Kan. 311, 89 Pac. 690.) And it has been decided that an effective transfer may be made by a constructive delivery of a deed. (Tucker v. Allen, 16 Kan. 312, 319; Kelsa v. Graves, supra.) The facts and circumstances of the case tend strongly towards proving an actual delivery of the deeds. After they had been executed and placed in envelopes with the names off the grantees thereon, they were handed by Ross to Mrs. Perkins, who kept them until they drove to the bank, when she turned them over to Ross, who carried them in and put them in Benson’s hands with the request that he keep them. Both were placed in a larger envelope, on the outside of which the name of Ross was written. There is a fair implication that Ross parted with control of the deeds and that there was an acceptance of them by the grantees When he handed them to Mrs. Perkins, and that he was acting for the appellees when he carried them into the bank and turned them over to Benson. However, if it be inferred that control of the deeds was not surrendered until he handed them to Benson, there are sufficient facts to support a delivery when he placed the deeds in the hands of the custodian with the statement that he would learn from the inside of the envelopes what was to be done with them. That Ross intended that the deeds were thereafter to be within the control of the grantees and not of himself is also shown by the remark to Mrs. Perkins, “When you record yours, you may record Ida’s also.” As shown by the authorities cited, the fact that the enjoyment of the land was to be postponed until Ross’s death and until the death of the second wife, in case he married one, does not militate against the theory that the delivery of the deeds was complete and that the estate bécame vested in the grantees when the deeds were passed over' either to the grantees or to the custodian. (See, also, Seifert v. Seifert, 66 Kan. 732, 71 Pac. 271; Young v. McWilliams, 75 Kan. 243, 89 Pac. 12; Brady v. Fuller, 78 Kan. 448, 96 Pac. 854; Norton v. Collins, 81 Kan. 33, 105 Pac. 26.) Assuming, as we must, that there was an effectual and valid delivery of the deeds, the next contention we have to meet is that if the transfer constituted a fraud on the marital rights of the appellant, so far as the transfer prevented her from inheriting one-half of the land, it was ineffectual for any purpose. It was held by the court that the deeds were valid and binding as to one-half of the land, but that the transfer of more than one-half qperated as a fraud on the marital rights . of the appellant. It is not easy to see how the transfer of qne-half of the land, nor even the whole of it, can be regarded as a fraud upon the rights of appellant. She and Ross had been neighbors in Douglas county for many years, and it is fair to presume she was acquainted with his situation and financial condition. It appears she did not know exactly what disposition he had made of his property, nor just what provision had been made for her, but from what she had learned she supposed that he had made a will devising the property to others, but by the terms of which she was to have a life interest in the property. While the writings executed by him were deeds instead of a will, they were intended to accomplish substantially what she understood had been done, that is, there was a transfer of the fee of the land to others, and the transfer did, in effect, give her a life estate in the property. By the terms of the provision she was “to retain undisturbed possession and use of the same during her natural life time.” During her life the grantees were not to have the use or possession of the property, and could not transfer, incumber or embarrass her life interest or the posses sion and use of the property given to her, and, besides, the grantees were each required to pay one-half of her. funeral expenses at her death. There is reason to criticize Ross’s action in not giving appellant definite information as to the nature of the transfer he had made and specifically as to what provision had been made for her, but her understanding of the provision, however gained, appears to have been substantially correct as well as satisfactory to her. Under all the circumstances the provision made for her can not well be regarded as unjust and unfair, but, on the other hand, appears to have been quite liberal, and was, in fact, about the share she contemplated would be given to her. The conveyance made to the grantees does not suggest injustice nor undue discrimination. No children had been born to Ross and his first wife, but Nellie D. Perkins, who was a niece of hers, had been reared in the family and had been treated as their own child. At the last sickness of Mrs. Ross, Nellie had left her own home and child and had gone to the Ross home, where she took care of her aunt for some time. Ida M. Stewart was a niece of Mr. Ross, and she had likewise made her home in the Ross family for a considerable period during her childhood and girlhood, and had also assisted in the care of Mrs. Ross in her last illness. The Ross family was much attached to these nieces, and their affection was fully reciprocated. There may be grounds for appellees to complain of the decision setting aside' the transfer as to one-half of the land and giving appellant a title to one-half of it, but they have filed no cross-appeal and are not in a position to allege error. We think there is no good ground for appellant to complain of the ruling of the court. She has no reason to insist that one-half of the land is not the full share to which she is entitled nor that the judgment operated unjustly as against her. It may be that because of the relations of the parties the giving of an outright title to one-half of the land is a better disposi tion of the case and accomplishes better results than would have been an award of the use of the whole estate for a lifetime, and having determined that she shall have the title to one-hálf of the land, it necessarily follows that the life estate provided for in the deeds by Ross is terminated. None of the errors assigned can be sustained, and, therefore, the judgment of the district court will be affirmed.	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The opinion of the court was delivered by Johnston, C. J.: This is a proceeding to establish the paternity of the bastard child born to relatrix, an unmarried woman about sixteen years of age, and to pro,vide for the maintenance of the child. William W. Law was adjudged to be the father of the child, and required to pay certain sums of money at fixed times for its maintenance and education. The relatrix testified that appellant came to her father’s home on the farm on January 7, 1909, when all of the family except herself were absent, and that when she rejected his proposal to have sexual intercourse he seized and threw her to the floor and accomplished his purpose. The appellant was a neighbor of the Beasons, and was about forty-five years of age at the time mentioned. He was a widower and had six children, one of whom was being cared for in the Beason home. The relatrix did not tell any one of the assault made upon her until in May, 1909, when she was taken by her mother to a physician for examination and treatment. The doctor, who was a brother of the appellant, discovered and stated that she was in a state of pregnancy, and to an inquiry as to who was responsible for her condition she told the doctor that his brother, the appellant, was the one. The child was born on August 12, 1909, and according to the testimony of the relatrix that was just two hundred and seventeen days after the alleged act of intercourse with appellant. The principal complaint on this appeal is that the verdict of the jury is not sustained by the evidence. It is contended by the appellant that as the child weighed eight pounds, was from eighteen to nineteen inches in length, and developed normally and steadily after birth, that conception could not have taken place at the time named by the relatrix. There was testimony of the relatrix that the appellant was the only person who ever had such relations with her. While appellant denied the alleged intercourse and also her statement that he had visited the Beason home on the day named, there was confirmatory testimony given by other witnesses to the effect that he was seen approaching the Beason home about the time mentioned, and further that he had asked a neighbor near the same time for his opinion as to the chastity of Ethel Beason and her sister, and inquired if he did.not “think a fellow could get next to them pretty easy.” It is urged that a child born on August 12 of the length, weight, strength and development of the one in question could not, under the laws of nature, have been conceived on January 7. It is further said that the morning sickness, or the vomiting of pregnancy, which relatrix testified occurred four days after the alleged intercourse, shows that her statement as to the intercourse is unreliable. While the child was healthy and about the weight and length of one of full development, there were some evidences of prematurity. Physicians who examined the child the day of birth said that the bones of the head lacked in ordinary ossification, the fontanels were wide, the sutures open, there were fine pimples on the nose and cheeks, and lanugo, or fine, downy hair, over the back, shoulders and breast, there was an absence of eyebrows, with only soft eyelashes, and the nails had not grown out to the ends of the fingers. It is true that some of the doctors who saw the child shortly after birth testified that, notwithstanding these evidences of prematurity, the period of gestation could not have been less than thirty-six weeks and that the child could not have been begotten on January 7, 1909. However, the physician who attended the relatrix testified that the child bore marked evidences of prematurity and that the period of gestation must have been less than thirty-six weeks. Taking January 7 as the time of conception the period of gestation was thirty-one weeks or seven and three-fourths lunar months. From the testimony and authorities it can not be said that the finding that the child was begotten at the time stated overturns physical law nor that the claim made by the relatrix is an impossibility. All know that the laws of nature as to the period of gestation are not immutable. The testimony in the case and the information to be derived from the authorities, which we may consider, show that many influences affect the duration of pregnancy as well as the development of the child and that nature does not always act with uniformity. For instance, 3 Wharton & Stillé’s Medical Jurisprudence, p. 39, after referring to many instances, concludes that while the average period of gestation is about two hundred and seventy-five days from the end of the last menses there are many variations, and that the period has been known to be protracted to three hundred and forty-four days, and mentions a case of the shortest recorded pregnancy where the child was born in the eighteenth week, one hundred and twenty-six days, and where it lived for more than eight years. In Williams on Obstetrics, Appletons’ New Medical Series, it is said that ordinarily the approximate duration of pregnancy js about two hundred and seventy days, but that individual cases in a series of four hundred and twenty-five presented marked differences ranging from two hundred and thirty-one to three hundred and twenty-nine days. The general rule,' it is said, “is subject to many exceptions, as apparently well-developed children may be born as early as the two hundred and fortieth, and as late as the three hundred and twentieth day after the last menstrual period, and there is no doubt that in exceptional instances the actual duration of pregnancy may equal, if not exceed, three hundred days.” (p. 170.) According to the testimony of relatrix her last menstrual period was on December' 12, which would be two hundred and forty-three days before the child was bom. In Emerson on Legal Medicine and Toxicology it is said that children born at the seventh month of gestation are capable of living, but generally are more delicate and require greater care and attention than children born at the full term, and, further, that: “It may be considered that children born at the seventh or even about the sixth month may be reared, and that their survival cannot in any way be taken as proof of their illegitimacy. The development and condition of the child is of far more importance in forming an opinion than is the mere period of gestation.” (p. 139.) Volume 2 of Witthaus & Becker on Medical Jurisprudence, p. 525, is to the same effect. In treating on this question in Garrigues, A Textbook of Obstetrics, it is said that: “Based on large statistics the supposition is warranted that in woman the time varies between two hundred and twenty and three hundred and twenty days, counting from the fecundating intercourse.” (P- 52.) In volume 1 of Taylor’s Principles and Practice of Medical Jurisprudence, 6th ed., after giving the averages of the characteristics of a child at the different stages of gestation, it is said: “They are, it is well known, open to numerous exceptions, for some children at the ninth month are but little more developed than others at the seventh; and in some cases a seven months child cannot be distinguished with certainty from a nine months child.” (p. 196.) In Rodgers on Domestic Relations it is said that: “Children born before the full time ‘differ in size, general appearance, apparent maturity, etc.’ And the fact, therefore, that a child is born within seven or eight months does not show illegitimacy for this reason. It is a fact gleaned from the field of medícál jurisprudence that children bom within eight months after conception have been known to be larger and healthier than those born at nine. It is not safe, therefore, to place too much importance in the size or appearance of a child so born. It is a fact, furthermore, that there is a disposition in some females to expel the child before the ordinary term. This occurs sometimes as soon as the seventh month.” (p. 563.) While the time falls considerably short of the ordinary period of gestation, and while the child was about the weight and size of a full-term child, and while there is evidence strongly conflicting with the claims of relatrix, we can not, in view of the considerations stated and the testimony in favor of the relatrix, hold that her claim is an impossibility under the laws of nature, or that the verdict is without support. Although the proceeding is criminal in form, it is essentially civil, and the rules of evidence are to be applied the same as in civil cases. (Gen. Stat. 1909, § 4026.) Like other civil cases a preponderance of the evidence is sufficient' to establish the contested facts, and while there is a conflict of evidence the finding of the jury determines the issue of paternity. Some time after the case had been submitted to the j ury they returned with the inquiry: “Did the defense have a right to put Harry Stansel on the witness stand?” In answer to this question the court said: “Both the State and the defendant had the right to put Stansel on the stand if either wished, but the jury should not consider such matter at all, and apply yourselves to the evidence actually given.” The appellant insists that as Stansel had been an employee.of Beason and a friend of the family, and, further, that as appellant had claimed that Stansel had frequently been in the company of relatrix and was in fact the father of the child, the failure to call him, without satisfactory reasons, warranted the inference by the jury that his testmony, if it had been produced, would have been unfavorable to relatrix. It can not be said that appellee did not have reasons for omitting to call Stansel as a witness. While he had been an employee on the Reason farm and was apparently on friendly relations with the family, he had also been in correspondence with an uncle of appellant since this proceeding had been begun, and had proposed to aid the uncle’s friend by giving information and carrying out a certain plan that he suggested would be very helpful to that friend. Under the circumstances it is not easy to say that the bias of Stansel was in favor of the appellee. He was near the court during the trial, and his testimony was as available to one party as to the other. The rule invoked, that the party who is in control of testimony that is an essential part of the case, and does not produce it without satisfactory reasons for his action, justifies the inference and warrants the presumption that the evidence would have been unfavorable to the claims of the party, was not applicable in this case. The court correctly ruled that the jury should confine their considerations to the evidence produced in the case rather than to some that they might think should have been produced. We see no error in the instruction which advised the jury that in passing upon the credibility of witnesses or in measuring the evidence they could use the knowledge and experience they had in common with men in general. It was an appropriate admonition in a case like this one. The jury could not have understood that the court referred to their knowledge of the particular case or to any special facts in the case, nor that their knowledge might be substituted for evidence, but rather that they should apply their general knowledge and experience, such as they possessed in common with the rest of mankind, in considering and measuring the testimony actually produced before them. No error, we think, could have resulted from the instruction. ■The judgment of the district court will be affirmed.	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The opinion of the court was delivered by Mason, J.: H. B. Hines brought an action to foreclose a real-estate mortgage. F. W. Casner was made a defendant under the allegation that he claimed an interest in the property, which in fact was subject to that of the plaintiff. Casner filed an answer consisting of a general denial and a cross-petition setting up a subsequent mortgage, which he asked to have foreclosed. The cross-petition was stricken out on motion of the plaintiff. Judgment was rendered foreclosing the first mortgage, on which the property was sold. Casner appeals, and among other rulings complains of that striking out his cross-petition. No sufficient reason appears for striking out Casner’s cross-petition. He was entitled to have his claim adjudicated in this action. (27 Cyc. 1605.) The right to have his interest determined before the property was sold was a substantial one, the denial of which was-prejudicial. The plaintiff contends that the mortgage to Casner was extinguished by a later warranty deed. The evidence regarding this was taken upon a motion to confirm the sale. Casner testified that he held the mortgage and deed in different capacities. He was entitled to have this question tried out upon issues made by the pleadings in the case. Because this right was denied him the sale will be set aside and the judgment modified so far as to allow the issue as to Casner’s lien to be made up and tried out. In the cross-petition Casner asked to have new parties brought in merely that he might have personal judgment against them. To have refused this, while allowing the cross-petition to stand, would not have been error. The defendant complains of a number of other rulings, some of which require brief mention. A demurrer to the amended petition was properly overruled, notwithstanding some generality in its statement. No copy of the note was attached to the petition, but one was forwarded to the clerk a few days later, and was by him placed among the files of the case. This made it in effect a part of the petition. The defendant maintains that-he was not given a reasonable opportunity to present his evidence upon the issues raised by the general denial. So far as the validity of the plaintiff’s mortgage is concerned there is no suggestion of an occasion for any evidence. The plaintiff was the mortgagee and the execution of the note and mortgage was not denied; nor was any'defense to it offered by pleading or otherwise. The petition alleged that the mort gage was given for a part of the purchase price, less than one-third of which had been paid. No evidence was offered in support of this prior to the judgment, but on the motion to confirm the sale evidence was given which doubtless justified such a finding, and nothing is suggested to the contrary. The existence of that fact justifies limiting the period of redemption to six months. (Civ. Code, § 503.) The judgment is complained of as not being sufficiently definite in its terms. It did not recite the history of the transaction out of which it grew as fully as is sometimes done, but .it included everything essential to a decree of foieclosure. The judgment is affirmed so far as it decrees the foreclosure of the plaintiff’s mortgage, but the cause is remanded in order that the question of Casner’s lien may be determined.	[ -14, -24, -103, -84, 10, -32, 42, 56, 72, 0, 39, 115, 109, -54, 20, 109, -9, 9, 21, 104, -43, -77, 87, 9, -14, -13, -29, -35, -79, -35, -9, 23, 12, 32, -62, -43, -26, -118, -59, -48, 78, -107, 24, -59, -7, 64, 48, 59, 80, 77, 69, -106, -13, 44, 29, -55, 41, 40, 91, 57, -48, -71, -97, 13, 87, 3, 49, 117, -100, -57, -54, 42, -112, 17, -128, -23, 114, -74, -106, 20, 7, 59, 40, 102, 98, 0, 101, -17, -8, -104, 42, 94, -97, -90, -75, 24, 64, 33, -74, -97, 108, 18, 103, 126, -18, 21, 28, -20, 15, -117, -106, -111, -117, 126, -102, 2, -34, 67, 48, 113, -49, 56, 92, -31, 57, -101, -114, -99 ]
The opinion of the court was delivered by Benson, J.: This appeal is from a judgment for damages caused by a collision between an automobile and a carriage and horse. In a former action brought by the defendant, owner of the automobile, against John P. Ternes, the plaintiff’s husband, the defendant recovered damages on a counterclaim for loss of his wife’s services and for injuries to his horse and carriage. (Giles v. Ternes, ante, p. 140, 143 Pac. 491.) In this action the wife sued for damages for pain and suffering and physical disfigurement. The circumstances of the collision are stated in the report of the first case and need not be detailed here. The charges of negligence, briefly stated, are that the defendant drove his car in the nighttime, at an unlawful speed, and without sufficient lights, out of the traveled roadway into the plaintiff’s conveyance, thereby throwing her to the ground and causing the injuries for which damages are asked. The jury returned findings as follow : *‘Q. 1. Was defendant driving his automobile at a rate of speed exceeding twenty miles per hour when the collision occurred? A. No. “Q. 2. Did defendant exhibit on the automobile he was driving at the time of the collision, one or more lamps showing white lights unobstructed and visible within a reasonable distance in the direction towards which the automobile was proceeding? A. Yes. “Q. 3. Was it dark at the time and place of collision ? A. Yes. “Q. 4. Was defendant driving his automobile in a careful and prudent manner at the time and place of collision? A. Yes. “Q. 6. Did defendant see or know of the approach of the buggy in which plaintiff was riding, before the collision occurred? A. No. “Q. 7. Did the conveyance in which plaintiff was riding exhibit or show any lights or warning signals, at the time of the collision ? A. No. “Q. 8. Did plaintiff see the lights exhibited on defendant’s automobile, before the collision occurred? A. Yes. “Q. 9. If you answer question No. 8 in the affirmative, state whether or not there was sufficient time and a safe place for the driver of the conveyance in which plaintiff was riding, to have avoided the collision by turning out to one side of the road, or otherwise? A. Yes. “Q. 10. If you answer question No. 8 in the affirmative, state whether or not plaintiff, after seeing said lights and before the collision, advised or suggested to her husband that he be more cautious, or did she make any effort to avoid a collision with the vehicle displaying said lights? A. No. “Q. 1. (By plaintiff.) Did the plaintiff and her husband upon seeing the light of defendant’s automobile turn out of the beaten path or roadway to the right? A. Yes.” A motion for judgment on the findings was overruled, and judgment was rendered on the verdict for the plaintiff for $100. Error is assigned upon this ruling, and upon the instructions. It will be observed that the findings negative any want of care on the part of the defendant except in relation to lights, and the failure to turn out on approaching the plaintiff’s carriage. The evidence .and instructions pertinent to these matters must therefore be considered. The following instruction was given: “If you find that when the plaintiff and the defendant were approaching each other on the highway in' question, the plaintiff turned to the right of the center of the highway and the defendant did not turn to his right of the center of the highway but that part or all of his automobile was to the south of the center of the highway, and that the collision between the plaintiff and the defendánt occurred to the south of the center of the highway, and that by reason of the defendant’s being south of the center of the highway the collision took place and the plaintiff was injured, then you are instructed that such act by the defendant constituted negligence on his part. The center of the highway as used in these instructions means the center of the well-beaten track or roadway.” From plaintiff’s testimony it appeared that while traveling east in her carriage about 10 o’ clock at night she noticed the lights of an automobile approaching from that direction. Her husband, who was driving, turned to the right. After the automobile passed on to the west she noticed other lights approaching, and the carriage was again turned to the right until the right-hand wheels were in the ditch. She also «said that the car came upon them “in an angling direction to the southwest.” Her husband testified: “As' soon as I saw the light I turned out of the road to the right and to the South. I turned out when I saw the first light. After a little I saw another dim light. All at once as it was just a short distance from me I seen it was an automobile and I hollowed to him if he couldn’t see us; by that time he just crashed into us. The automobile struck our buggy right back of the front wheel on the side. The left hand side of the automobile striking my front wheel back of the hub. My wife fell on the hood of the car and the collision j erked me on the other side of the ditch, in the grass there. I got up and saw Mr. Giles there, and I said, ‘Is that you, Mr. Giles?’ and he said, ‘Yes.’ I said ‘An old man like you ought not to go out with such lights on a car.’ And he said, T know, the other lights got out of fix, ain’t got them fixed yet.’ And he said, T know it is my fault, but can’t help it now,’ and he said, ‘With your white clothes on I thought that was the road.’ I examined the location of the accident next morning and could distinguish the tracks of my buggy at that time. I would judge that I turned out of the road a distance of 100 feet west of the point of the accident. I could also see the automobile tracks the next morning. The left front wheel of the automobile went right in the ditch, made a big gash in the ditch. I followed these tracks back where the automobile turned out of the road, and I think that it was about 25 or 30 feet from the ditch to the point of the road where the automobile turned out. The automobile was facing southwest when it stopped. The automobile track was pretty gradual turnout until it got pretty close to us. All at once he made a pretty sharp turn towards the buggy.” It appears from the evidence of the defendant that there was a coal-oil light on each side of his automobile, but the headlights were not burning, being out of order. He testified: “I would say that I was traveling at the rate of 6 or 7 miles an hour when the collision occurred. I did n’t see the rig in which plaintiff was riding before the collision occurred. The first intimation I had was when we came together and I heard the glass fall. I saw a lady on the hood of the machine which after-wards proved to be Mrs. Ternes. That was the first I knew there was anybody near. At the time of the collision I was traveling in the center and main traveled track of the road, and I did not turn out of the main track of the road up to that time.” An instruction like the one copied above was given in the former case (Giles v. Ternes, 93 Kan. 140,143 Pac. 491), where it was said, in substance, that if there was evidence that the driver of the car turned to the left of the traveled portion of the road, and ran into the carriage which, to avoid the collision, had been turned to the right and almost into the ditch, the appellant could not be injured by the instruction, and it would be presumed that there was evidence to that effect. In that case the evidence was not presented in this court, but in this case it is, and, as we have seen, it is sufficient to warrant the instruction, as decided in that case. Instructions that the object of lights upon an automobile is not alone to enable persons approaching to see it, but to enable the driver of the car to see a reasonable distance in the direction in which he is going, were obj ected to, but they are not erroneous within the principles already decided in the former case. The Finding No. 1, that the defendant was driving his car in a careful and prudent manner, must, in the light of the general verdict and finding No. 6 that the plaintiff’s carriage was turned out of the roadway to the right, be deemed to refer to the control of the car, and not that it was prudent to drive it upon a carriage properly turned aside. It is true that by finding No. 9 the jury said that there was sufficient time and place for the driver of the carriage to have avoided the collision by turning to one side of the road or otherwise, but he was only bound to do what prudence and the law required. It appears from another finding and the verdict that he performed this duty. He had a right to presume, until the contrary appeared, that the driver of the automobile would yield a part of the roadway as the law also required him to do. The special findings do not negative the plaintiff’s contention that the defendant failed to turn his car to the right -but actually turned it to the left, thereby colliding with the plaintiff’s carriage which had been properly turned aside. Neither do the findings negative the plaintiff’s contention that the lights upon the automobile'were insufficient to enable the driver to see a reasonable distance in the direction in which he was going. The general verdict must be construed as finding for the plaintiff on these matters, and being supported by competent evidence, will not be set aside. It is suggested that while the jury found that the plaintiff’s carriage was turned out of the roadway, they did not find that such turn was made at a sufficient distance from the approaching car. It must be presumed from the general verdict that the turn was seasonably made, and the evidence supports that conclusion. Having considered the various objections to the proceedings, and no error being found, the judgment is affirmed.	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The opinion of the court was delivered by Porter, J.: In this action the plaintiff recovered damages for personal injuries, and the defendant appeals from the judgment. The plaintiff was the rear brakeman of a freight train, running from Dodge City to Newton, and at the time he was injured the train upon which he was at work was engaged in hauling interstate shipments. The crew consisted of the conductor, engineer, fireman, and a head and rear brakeman. The train was made up of sixty-two freight cars. Just'before the train left Larned, which is twenty-two miles west of Great Bend, the conductor directed the plaintiff to go forward and act as fireman of the engine, while he himself took charge of the engine and acted as engineer from that point to Great Bend, for the purpose of allowing the regular engineer and fireman and the head brakeman to go to the caboose and eat their dinner. It required forty-five minutes to run from Lamed to Great Bend. The plaintiff testified that when he and the conductor finished eating their dinner the conductor said, “You can go to the head end; you and I will take charge of the engine and let the engine crew come back and eat.” “I obeyed instructions. . . . When we got to the head end he told me to get up and finish taking water for the fireman; then he told me to fire the engine from there to Great Bend. ... It must have been about 2:30 when I got on the engine at Lamed. . . . As we turned the curve going into Great Bend the conductor said he heard a noise and asked me to look and see if I could see anything dragging. I looked and told him I could n’t see anything. He says, ‘Get down on the step and look.’ I told him as soon as he shut off for town I would. As he shut off for town I turned on the blower and got down on the step and I was looking. As we hit the passing track the tire came off and hit the blow-off cock and the blow-off cock hit my leg and knocked me off the step.” He also testified: “Neither the engineer nor the fireman nor the head brakeman objected to the conductor and me relieving the engineer and fireman and letting them go back and eat. I didn’t object, I didn’t dare to. We had done that frequently before.” With reference to the brakes, the plaintiff testified that the conductor looked at them just before going .into Pawnee Rock and it showed that the brake was set a little, about four or five pounds, and he released it, and said, “Look how much faster it is picking up the train — how mu disaster it is going.” The other brakeman testified that the exchange of positions on the train was made in order that the rest of the crew might eat their dinners, and that it was done for the interest of the company in order to get ovér the road; that they had been accustomed to do this under the same conductor; that they had been doing it most of the time that he was on that run, for about a year. The jury found for the plaintiff in the sum of $6000, and returned special findings of fact, including the following, which defendant claims are inconsistent: “Q. 6. If you find for plaintiff, state the exact negligence of which defendant was guilty upon which you basé your verdict. A. 6. Defective tire on right rear driver. “Q. 7. State the exact defect (if any) in the engine tire and wheel which caused the tire in question to come off. A. 7. Improper use of brakes, causing expansion of tire. “Q. 8. How long had the defect in the engine tire or wheel in question existed (if at all) prior to the time of the accident? A. 8. Between Pawnee Rock and Great Bend.” Manifestly, the sixth and seventh findings can not, technically speaking, be correct. The improper use of the brake did not constitute a defect in the tire, though there was evidence to sustain a finding that the tire became defective by reason of such improper use. Nor was the defective condition of the tire an act of negligence, but it may have been and the evidence seems to indicate that it was caused by a negligent act in improperly using the brakes. It seems more than probable that the answers to questions 6 and 7 became in some manner transposed. We think the three findings considered together in the light of the evidence, the contentions of the parties, the general verdict, and all the circumstances of the case, should be construed to mean that the improper use of the brakes, causing an expansion of the tire, is the negligence of which the jury intended to find the defendant guilty; that the defect in the tire consisted of an undue expansion caused by such negligent use of the brake; that this defective condition of the tire arose between Pawnee Rock and Great Bend, and that there was nothing wrong with the tire previous to that time. The findings were not attacked by a motion on the part of the defendant, nor a request to have the answers made more specific or definite, nor was judgment asked upon the findings. It does not seem possible that the defendant was prej u-diced by the manner in which these answers were returned, nor do we find anything to indicate that the jury were attempting to evade the questions. In view of what we have said, we can not regard the findings as so inconsistent with each other or with the general verdict as to justify the granting of a new trial. It is insisted that the finding that improper use of the brakes caused an expansion of the tire was wholly speculative, and without any basis in the evidence to support it. The evidence of the plaintiff, in substance, to the effect that for five or six miles after, leaving Larned the conductor ran the engine with the brakes partially set; evidence of the defendant that the tire had been inspected the day before, and was not loose when the engine left Dodge City; the evidence of an ex-éngineer, who testified that a tire can be made to work loose by using the brakes too much or too severely and sliding the wheels, and all the circumstances in evidence showing the manner in which the accident occurred, furnish a sufficient basis for the finding. While, as suggested, there was nothing to show any sliding of the wheels, there was sufficient evidence to support a finding that the tire became loose as a result of improper use of the brakes. We discover no fatal variance between the statements of plaintiff’s petition and the proof. The allegation that plaintiff was acting in the line of his duty as a brakeman when he stood on the step of the engine is in accordance with the theory upon which the petition was obviously drawn, which is that it was his duty as a brakeman, acting under the control of the conductor, to obey orders, even if that required him to perform temporarily the duties of a fireman. The jury find that the tire became loose between Pawnee Rock and Great Bend. The petition alleged that the tire had been loose two days prior to the accident, and that defendant knew or had opportunity to know of such defect. Conceding a variance here between the allegations and the proof with respect to notice, it can not be regarded as prejudicial, if, as we shall attempt further on to show, the plaintiff’s right to recover in no manner depends upon whether or not the defendant knew or had opportunity to know of any defect in the tire. There is a variance in the averments of the peti tion and the proof, which arises from the fact that for some reason the plaintiff saw fit to allege that the name of the unauthorized person who was operating the engine was unknown to him, and that, although the engineer and fireman were wrongfully absent from the engine, plaintiff did not know upon what part of the train they were at the time of the accident. Of course, he did know who was running the engine and knew where the engineer and fireman were, but it does not appear that defendant has been prejudiced by the misstatements of fact in the petition. The defendant insists that plaintiff was performing work outside the regular scope of his employment, without direct authority from the company. It is, of course, true that at the time of his injuries he was not performing the usual duties of a brakeman; he was acting, for the time being, as a fireman, but it by no means necessarily follows that in so doing he was acting outside the scope of his employment. Did the conductor have authority to order the plaintiff to perform temporarily the duties of a fireman? The plaintiff offered in evidence certain rules of the company, and others were offered by the defendant. One rule requires that freight brakemen must be on top of their trains when approaching and passing stations. Another declares that the post of the rear brakeman is on the last car in the train, which he must not leave while the train is in motion, except to apply the brakes, without instructions from the conductor. Rule 452 provides that engineers will not permit persons to ride on engines, other than designated employees in the discharge of their duties, without a written order from the proper authority. Another rule places the engineer under the direction of the conductor in the management of trains, but provides that engineers will not obey instructions that will endanger the safety of the train or require a violation of rules. One rule holds the enginemen responsible with the conductor for the safety of the train; another holds conductors responsible for the safe management of their trains, and for the strict performance of duty of all persons employed thereon; another provides that conductors must instruct their brakemen in all their duties. From an examination of these rules we fail to find any express provision prohibiting a brakeman from performing the duties of a fireman upon the orders of the conductor, nor do we find any rule which seems to limit the control of the conductor over the acts and conduct of the brakeman within the scope of the latter’s employment while the train is in the conductor’s charge. If the railway company desired to make a rule that under no circumstances should a brakeman act as fireman without orders from some officer superior to the conductor, it would seem a very easy matter to have so provided. The conductor is given control of the train and of the train crew, and must instruct the brakemen in all their duties; he is given authority to order the rear brakeman to leave his post on the last car in the train. In view of the absence of any specific rule on the subject, we do not think it can be said that there is anything in the nature of the business or the manner in which it is usually carried on that would make 'it seem unreasonable that a brakeman might on occasion be called upon by a necessity or emergency to perform the duties.of a fireman; and certainly it would not seem unreasonable in this instance. According to the plaintiff’s testimony he had been a fireman on engines for five years on other railroads. So far as appears from the evidence, he may have been as well qualified to perform the duties as the regular fireman. In our opinion, therefore, the conductor must be held to have had authority to order the plaintiff to act as fireman. His act in this respect, as well as that of the brakeman in obeying the order, seems to us as the necessary, natural and proper result of the thing they were employed to do. Whether an emergency existed requiring the exchange of the positions we think was for the conductor to determine, and the plaintiff, who was under his control, was not required to call for the papers or rules showing the conductor’s authority. The case of Chicago & N. W. Ry. Co. v. Bayfield, 37 Mich. 205, is in point. There the railway company was held liable for the negligence of the conductor of a work train in ordering a laborer to do work outside the scope of his contract. In the opinion in that case it was said: “It will be conceded that for a positive wrong beyond the scope of the master’s business; intentionally or recklessly done, the master can not be held responsible; this being very properly regarded as the personal trespass or tort of the servant himself. But when the wrong arises merely from an excess of authority, committed in furthering the master’s interests, and the master receives the benefit of the act, if any, it is neither reasonable nor just that the liability should depend upon any question of the exact limits of the servant’s authority. The master fixes these, and it is his duty to keep his servant, in what is done by him, within the limits fixed. An act in excess would still have the apparent sanction of his authority; the occasion for it would be furnished by the employment, and the injured party could not always be expected to know or to be able to discover whether it was or was not without express sanction. “In this case Smith had charge of the train and of the men employed with it. In what he did, he was not purposely committing any wrong outside the employment, but his wrong was committed while acting in the very capacity in which he was employed, and had for its manifest purpose not to injure Williams but to advance the interests of the railway company.” (p. 213.) (Italics ours.) Was the plaintiff acting within the scope of his employment at the time he was injured? As we have said, the mere fact that he was employed as a brakeman and was injured while temporarily performing the duties of a fireman does not settle that question. He was employed as a brakeman, but if the duties of a brakeman required him to obey the orders of the conductor, even to the extent of acting as fireman when in the opinion of the conductor there was an emergency or a necessity that he should perform such duties, then it would seem to follow necessarily that in obeying the orders of the conductor he was not acting beyond the scope of his employment. Whether a certain act is outside the scope of the servant’s employment frequently depends upon the other question, whether the superior officer has authority to require him to perform the service. This is the view taken by Judge Cooley in Rodman v. Mich. Cent. R. R. Co., 55 Mich. 57, 20 N. W. 788. The question there was whether a brakeman can recover against the railway company for an injury received in consequence of the conductor’s managing the locomotive in the engineer’s absence. The Michigan court was equally divided, and therefore the judgment of the lower court denying such liability was affirmed. Judge Cooley wrote the opinion for those members of the court who held there was no liability, and in the opinion used this language: “And the only question there can be in this case is whether the plaintiff was ordered to do something which under the circumstances was outside of his employment, so that, had he been inclined to do so, he might rightfully have refused obedience to the order. And this, as it seems to us, must depend upon whether, when the contingency appears to the conductor to render it necessary, that official may for the occasion take charge of the engine, and at the same time require the brakeman to continue to perform his service. “That contingencies may and do arise in which the conductor should take charge of the engine for the time, is undoubted. The necessity may sometimes be as urgent as it is plain; and lives may depend upon it. This might happen from injury to the engineer, or sudden illness; and when to leave the train where the disability of the engineer occurs would endanger some other train. But there might be other reasons for the engineer leaving his post, for which the company would not be in fault, and the conductor, with the train in his charge and under obligation to avoid other trains, must act in the emergency as the necessities of the case shall require. His highest and plainest duty in some circumstances will be to take possession of the engine and operate it.” (p. 58.) (Italics ours.) It was held that the conductor was acting rightfully in taking charge of the engine, but that the plaintiff’s suit failed because he had assumed the risk of the injury. The other members of the court held that the services were not contemplated by the plaintiff’s contract, but the conductor, in the exercise of his authority, having-ordered him to perform services of increased peril, the case was “no different from what it would have been had the defendant been a natural person, and without possessing the requisite skill and experience and being wholly unfit and incompetent, had himself undertaken to run and manage the engine, and had at the same time ordered the plaintiff to couple-the cars, and the injury had resulted in consequence of the want of fitness, competency, skill and experience of defendant.” (p. 63.) This division of the court held that the case was ruled -by the decision in Chicago & N. W. Ry. Co. v. Bayfield, 37 Mich. 205. In Barry v. Hannibal & St. J. Ry. Co., 98 Mo. 62, 11 S. W. 308, 14 Am. St. Rep. 610, it was held that where a servant steps outside his usual duty, and the departure is such as the necessity of the case fairly and reasonably calls for, keeping in view the character of the work the servant is contracting to perform, then such departure will not of itself defeat a recovery of damages in case he is injured. In that case an engineer was killed by being run over by a hand car. He had left his engine, although the rules required him to remain there. The following Kansas cases cited by defendant, Hudson v. M. K. & T. Rly. Co., 16 Kan. 470, Crelly v. Telephone Co., 84 Kan. 19, 113 Pac. 386, Kemp v. Railway Co., 91 Kan. 477, 138 Pac. 621, were all cases where the plaintiff sought to hold the master liable for as assault committed by the servant. In each case it was held that the tortious act of the servant was outside the scope of his employment, and that, for the time being, the relation of master and servant was suspended. In the Kemp case, a brakeman shot and killed one who had been stealing a ride on a passenger train after the trespasser had left the train at the brakeman’s command. It was said in the opinion: “It is difficult to state with precision the exact meaning of the phrase 'scope of the employment,’ but from the foregoing expressions in decisions and textbooks it may be said generally that to fix liability upon the master or employer the act must not only be done in the'time, but in pursuance of the objects of the employment, in furtherance of duty. If done solely to accomplish the employee’s own purpose or devise, although in an interval of his regular service, the employer is not liable,” (p 481.) In the Crelly case, supra, the duty of the servant was to have the plaintiff sign a voucher for compensation due her at the time she was quitting the service. Because she refused to sign the voucher he violently assaulted and beat her. ' It was held that the use of force for such a purpose was not within the scope of his employment. In the opinion it was said that “to assault or -beat a telephone operator is not a recognized or usual way of procuring her signature to a voucher on which to draw the wages due to her.” (p. 24.) While we do not wish to be understood as intimating that it would have made any difference if there had been proof in that case showing that for some time that had been the usual and customary way for the telephone company to procure signatures to vouchers, nevertheless, in determining the scope of plaintiff’s employment in the present case some consideration must be given to the fact that it appears from the testimony that it had been the usual custom for more than a year for this particular train crew to exchange positions, and for the conductor and a fireman to operate the engine while the enginemen went to the caboose to eat their dinner. It is manifest that little aid can be had from a consideration of those cases where a corporation is sought to be held liable for the wrongful or malicious act of an agent or servant where the doing of the act could not in the nature of things be in the exercise of the ordinary duties of the agent or servant. As a general rule it is true that if the servant, instead of doing that which he is employed to do, does something else which he is not employed to do at all, the master can not be held responsible for what he does, nor is it sufficient that the servant did the act with the intent to benefit or serve the master. The act must be done in attempting to do what the servant has been employed to do. In the case of Gavigan v. Lake Shore, etc., R. Co., 110 Mich. 71, 67 N. W. 1097, cited by defendant, a section hand was a member of a gang engaged in relaying a track, and it became necessary, in order to distribute the rails, to move two freight cars. The plaintiff was injured in' obeying the order of the section boss to climb upon one of the cars for the purpose of moving it so that the rails might be distributed, and it was held that he was acting outside the scope of his employment.' It was, therefore, held that he had assumed the risk, and further, that the negligence of the section boss was that of a fellow servant. We decline to follow that case as an authority on the question of the scope of the servant’s employment. It seems to us that it would be far more reasonable to hold that the act of the plaintiff in that case was a necessary, natural and proper result of what he was employed to do, rather than to hold that in such a situation the work of laying the rails must stop while a train crew was sent for to' move the freight cars. Another case cited by defendant is Richmond & D. R. Co. v. Finley, 63 Fed. 228, holding that “an engineer in temporary charge of a train, in the absence of any conductor, can not waive a rule, well known to a brakeman, absolutely prohibiting brakemen from coupling and uncoupling cars except with a stick, by ordering such brakeman to go between cars and place in position, by hand, a bent coupling link, which can not be controlled with coupling sticks.” (Syl. ¶ 1.) This, and the case of Indiana, etc., Gas Co. v. Marshall, 22 Ind. App. 121, 52 N. E. 232, proceed upon the principle that it would establish an unsafe rule to hold that a superior officer could without direct authority from the company change safe and proper rules adopted by the master for the performance of the work and direct workmen to prosecute their labors in dangerous places, and that if the danger or peril which the workman is directed to do by his superior officer is plain and.obvious, so that he understands its dangerous character, it is his duty to decline the employment. These cases can hardly be said to be in point in view of the fact that the defendant has failed to call our attention to any absolute rule, or a rule of any kind, prohibiting a brakeman from acting as a fireman under the orders of the conductor. In Brown v. Jarvis Engineering Co., 166 Mass. 75, 43 N. E. 1118, 55 Am. St. Rep. 382, it was held that the foreman of a gang of men employed in constructing a foundation for a printing press has no authority, while such work is suspended, because of the presence of a van containing rolls of paper, which must be unloaded and rolled into the basement of the building, to direct the men constituting a part of “his gang to assist with such unloading, though their so doing may expedite the work for which they were employed. It was said in the opinion: “In the construction of a building it frequently happens that one set of workmen has to wait until another set of workmen gets through, but it never has been supposed that this would authorize a foreman of a gang of painters to direct his men to assist carpenters or plasterers, or to attempt to do their work, although the doing of it might in a sense be said to facilitate the carrying forward of the work of painting. Men are employed because they are supposed to be skillful in •their particular trades, and, when they are set to do a work within their trade they carry no implied authority from their master to engage in any other trade.” (p. 77.) It was further said in the opinion: “The act of the defendant’s servants was not a necessary, or natural, or proper result of anything that the servants were employed to do.” (p. 77.) In the present case everything that was done by the conductor and the plaintiff in operating the engine was done in furtherance of the defendant’s business, undoubtedly for the purpose of avoiding delay in the operation of the train while the engineer and fireman were taking their dinner. How can it be said that the conductor and fireman had temporarily laid aside the master’s business while engaged in running the train from Larned to Great Bend? It is true that according to the statements of the petition the plaintiff knew that the conductor was not an experienced engineer, and knew that it was no part of the conductor’s duty to operate the engine, and that no emergency existed requiring him to do so, and also knew that the conductor was acting in direct violation of the rules of the company. It is self-evident, as the defendant contends, that plaintiff would not have been injured if he had remained at the rear of the train; but if the conductor had authority to require plaintiff to perform duties upon the engine, the plaintiff may recover, notwithstanding his knowledge that the conductor was violating the rules of the company. (A. T. & S. F. Rid. Co. v. Randall, 40 Kan. 421, 19 Pac. 788; Chicago & N. W. Ry. Co. v. Bayfield, 37 Mich. 205.) The jury by their verdict have found that an ordinarily prudent person in his situation would not have refused to obey the orders. In our view, to hold that the conductor had authority to order the brakeman to perform the duties of fireman practically determines the case. The action was brought under the act of congress known as the “employers’ liability act.” The court instructed that if the jury found that the conductor ordered the plaintiff to go with him to the engine and act as fireman while he acted as engineer, and after discovering that something was wrong with the engine, directed the plaintiff to get down on the step to ascertain what was the matter, the plaintiff was justified in obeying the instructions and orders of the conductor, notwithstanding a rule to the effect that the post of duty of the plaintiff as rear brakeman was on the last car, unless the danger in complying with the orders of the conductor was so obvious and imminent that an ordinarily prudent person acting as brakeman would refuse to obey it; and that, on the other hand, if they found that plaintiff did not use that degree of care for his own safety which an ordinarily prudent person under like circumstances would have exercised, either in getting upon the engine and acting as fireman, in compliance with such order, or in attempting to make the examination, he could not recover. The court also charged, in substance,' that if the conductor carelessly and negligently applied the brakes to the wheel and caused the tire to expand and become loose, and the plaintiff was directly injured by reason thereof, then the defendant was guilty of negligence and would be liable to the plaintiff for injuries sustained, provided the plaintiff did not assume the risk incident to the examination of the tire, as otherwise indicated in the instructions; and further, if they, found he was guilty of contributory negligence, they were directed to apportion the damages as provided in the federal employers’ liability act. We think the instructions correctly stated the law, and that there was evidence to sustain the verdict and findings. In view of all the evidence, including the showing that the plaintiff had years of experience as a fireman on an engine, we think the jury were justified in finding that an ordinarily prudent person with his experience and in his situation would not have refused to act as fireman, nor to attempt to make the examination to ascertain what was the matter with the engine when the conductor ordered him so to do. In this view of the case the variance between the averments of the petition and the proof respecting the defendant’s knowledge or notice of the defective condition of the tire, as well as the finding that the defect itself occurred only a few moments before the accident, and the instructions of the court on that issue, are of no importance. We rest our decision on the proposition that the conductor of the train had authority to direct the brakeman to perform the duties of a fireman on the engine whenever' it appeared to the conductor necessary that an exchange of that kind should be made; and even though the. conductor was violating a rule of the company in acting as engineer, that would not defeat the plaintiff’s right to recover. If the conductor’s negligence in assuming to act as engineer without experience, and in improperly using the brakes, caused the accident which resulted in the plaintiff’s injury, under the limitations mentioned in the instructions, the plaintiff is entitled to recover for injuries occasioned by the negligence of the servant of the defendant. The question of notice goes out of the case. For instance, if the negligence of the conductor, while operating the engine, had instantly injured the plaintiff, so that the company could not be said to have had any notice at all of any defect caused by the negligent act in time to have remedied it, still the company would be liable for his negligence. It follows that the judgment must be affirmed.	[ -48, 106, -111, -97, 26, 104, 58, -102, 117, -75, -25, -109, -19, -119, 5, 43, -9, 77, -43, 3, 119, -109, 7, -94, -46, 115, 49, -52, -98, 74, 100, -42, 77, 18, 10, 21, 38, 72, 69, 92, -114, 4, -87, -24, 25, 8, 56, 120, 22, 15, 49, 14, -13, 42, 24, -63, 45, 60, -21, -95, -63, 49, -62, 5, 117, 16, -93, 4, -98, 7, 76, 58, -112, 53, 33, -68, 114, -94, -125, -12, 41, -5, 69, -30, 98, 35, 21, -25, -116, -88, 15, -102, -97, -89, -80, 24, -69, 13, -105, -97, 59, 20, 22, -4, -6, 69, 89, 100, 3, -117, -76, -111, -49, 37, -106, -33, -21, 53, 18, 113, -20, -78, 93, 69, 50, -101, -65, -66 ]
The opinion of the court was delivered by Mason, J.: C. E. and Gail E. Ross brought action-against Lloyd F. Cox, asking the specific performance of a contract for the exchange of real estate. Cox defended on the ground that he had been defrauded into making the agreement by misrepresentations as to the value and quality of the land he was to receive. Judgment was rendered for the plaintiffs, and the defendant appeals. No special findings were made. Conflicting oral testimony was given, some of which tended to support the judgment. The trial judge in announcing his decision said that some puffing is permitted in attempting to sell property. This is sound law (19 Cyc. 399), and does not amount to a finding that the defendant’s version of the transaction was correct, or that the plaintiff had made the false representations complained of. The defendant invokes the rule that “fraud, to defeat a specific performance, need not be proved with a degree of certainty necessary to authorize a decree of rescission, or defeat a recovery at law.” There having been some substantial evidence to support the plaintiffs’ claim, the question whether its persuasive force measured up Eo a particular standard was one upon which .the decision of the trial court is final. (Wooddell v. Allbrecht, 80 Kan. 736, 104 Pac. 559.) The defendant maintained that the plaintiff C. E. Ross had told him the land in controversy — an eighty-acre tract — was worth $2500, and that in it was included seventy acres of farm land, whereas it was not worth over $1000, and was not adapted to farming. He offered to prove that the plaintiff some six months before had told another person that the land was worth $2000, and included seventy acres of good tillable land; that three or four months after this the plaintiff had told him he had paid $500 for the land and that a banker friend helped him to get a loan of $800 on it. The offer was rejected, and complaint is made of the ruling. The rejection of this evidence can not be regarded as material error, upon any view of its admissibility. The value of the land was largely a matter of opinion-(Else v. Freeman, 72 Kan. 666, 83 Pac. 409; 20 Cyc51; 14 A. & E. Encycl. of L. 41.) The decision of the court was based chiefly on a belief that the defendant became displeased with his bargain and sought excuses to evade it. And.no proof was offered on the motion for a new trial that the witness would have testified as suggested by the offer, in accordance with section 307 of the code. The judgment is affirmed.	[ 114, 124, -3, -83, 10, -32, 40, -38, 73, -96, -89, 91, 109, -58, 20, 41, -74, 77, 84, 104, 86, -77, 87, -29, -46, -77, 115, -51, -75, -52, -26, 87, 76, 32, -62, -43, -26, -32, -62, 16, -114, 7, -103, 78, -55, 64, 52, 59, 16, 75, 65, -113, -13, 36, 25, -61, 41, 44, 91, 57, -48, -8, 58, -113, 127, 22, 50, 37, -100, -125, -40, 110, -112, 49, 1, -8, 127, -90, -106, 116, 73, -87, 8, 102, 103, 1, 92, -17, 120, -104, 47, -3, -113, -89, -106, 88, -62, 64, -76, -100, 116, 64, 7, 124, -29, 29, -99, -20, 11, -113, -42, -109, -113, 60, -102, 27, -13, -125, 17, 100, -51, -30, 93, 85, 112, -101, -97, -67 ]
The opinion of the court was delivered by Benson, J.: In a petition for rehearing the argument is presented that a particular clause contained in printed instructions inclosed with the letter transmitting the check to Mr. Mdshler was not given proper effect in the opinion in this case. (United Workmen v. Bank, 92 Kan. 876, 142 Pac. 974.) The letter gave specific directions to deliver the check to the payee. These directions are copied in the opinion, at pages 880 and 881. The printed instructions were contained in a blank form of letter purporting to be for the use of the grand recorder in transmitting orders against the beneficiary fund to the local recorder, although in this case a special letter was written. The instructions were left blank as to date, addressee, check number, payee of check, name of the deceased member, and in other respects. • They were not signed, although prepared for the signature of the grand recorder. The part of its contents relied upon in the petition for rehearing is the following: “It is the duty of your lodge, through you, to see that the enclosed order is properly endorsed and deliv ered to the party entitled to it and the beneficiary certificate is taken up and forwarded to this office as above directed.” Specific directions concerning the disposition of the check were given in the letter, making no mention of an indorsement, although the printed matter contained the instruction as copied. If the directions in the letter conflicted with the instructions contained in the blank, the directions must govern, but both should be given effect so far as they are in harmony and can have consistent operation. A rule of the grand lodge provided that warrants upon the beneficiary fund should be drawn in favor of the persons named by the finance committee to receive them. After a warrant is so allowed, drawn and delivered to the beneficiary, neither the grand lodge nor its officers have any control over it. The payee may indorse it to another, present it in person, or otherwise dispose of it as he sees fit. It is his property. The drawer has no duty concerning it. In this instance, had the’ check been delivered to the payee named in it, the grand lodge would have discharged its whole duty except to see that it was paid to the payee, or to his order. Whatever may have been contemplated by the printed instructions “to see that the check is properly indorsed,” it is not reasonable to suppose that they related to any duty to be performed after delivery, for it would then be beyond the control of the local lodge or its officers, and no indorsement before delivery was necessary or proper to give it effect. The specific directions contained in the letter of transmittal was to deliver the check to Thompson on receiving the affidavit’ and receipt. The reference in the blank instructions to an indorsement may have been inserted in contemplation of the use of a form of warrant upon which an indorsement of some officer of the local lodge would be necessary to make the instrument effective, but it can have no reasonable application to the warrant drawn in this transaction. Further consideration of the contract between the grand lodge and the depositary is requested. That matter was fully and fairly discussed in the briefs and has been carefully examined. The views of the court as expressed in the opinion are adhered to and the petition for a rehearing is denied.	[ 48, -4, -47, -67, 10, -32, -69, -102, 65, -115, -93, 115, 121, -110, 5, 105, -14, 63, 52, 107, 84, -77, 7, 89, -14, -13, -13, -44, -75, 111, -18, 31, 77, 48, -118, -43, 102, -126, -57, -44, -114, 5, 32, -27, -15, 83, 48, -13, 6, 75, 117, -34, -29, 60, 25, 66, 44, 44, -24, -51, -48, -79, -65, 7, 127, 21, -79, 21, -104, -89, -40, 46, -104, 49, 3, -8, 96, -74, -114, 116, 107, 57, 9, 110, 98, -112, -11, 105, -100, -104, 55, -9, -99, -89, -110, 56, -86, 32, -74, -99, 117, 48, 38, 124, -26, 21, 27, 108, 11, -113, -26, -109, -113, 124, -100, 10, -17, -127, 0, 112, -56, -32, 92, 103, 91, -103, -113, -72 ]
Per Curiam: The action was one to foreclose a real-estate mortgage executed by Mamie H. Churchill and J. P. Churchill, her husband, on land belonging to the wife. The verdict and judgment were in her favor and the plaintiff appeals. The plaintiff claimed that the note and mortgage were given to secure the indebtedness of J. P. Churchill to the bank and that such indebtedness has never been satisfied. Evidence was introduced tending to establish this claim. A portion of this evidence consisted of testimony indicating a full settlement of the indebtedness and the retention of the note and mortgage as satisfaction of part of the balance found to be due. Mrs. Churchill claimed that the note and mortgage were given to indemnify the president of the bank as surety on a redelivery bond in a replevin action to which her husband was a party, and for no other consideration. She gave testimony tending to prove this claim. She also contended, in opposition to the bank’s version of the settlement, that her husband’s indebtedness was fully discharged without using the note and mortgage for that purpose. The testimony of Mrs. Churchill is criticized as being indefinite, self-contradictory, and not worthy of credence in view of facts and circumstances established by reliable proof. Manifestly .these were matters for the jury to consider and decide. It is said that the cross-examination of certain witnesses was unfair and was unwarrantably extended to embrace irrelevant transactions which confused and embarrassed the jury in its consideration of the case. The bank was unable to establish the indebtedness of Churchill, the various forms which it took, and the re-suit of the settlement, by its books or other documentary evidence but was obliged to depend on parol proof which in many respects was quite indefinite and uncertain. Many transactions covering a considerable period of time were involved, and apparently the only way to arrive at the ultimate facts was to make the investigation thorough and complete. The fact that the relations of Churchill to the bank were confused and complicated was not ground for arbitrarily stopping the investigation, and this court is unable to declare that the trial court abused its discretion in any particular to the plaintiff’s prejudice. It is admitted that no liability has accrued on the redelivery bond, and consequently, under the defendant’s theory of the case, no liability has accrued on the note and mortgage. The plaintiff included in its petition a cause of action for taxes which it was authorized to pay and did pay on the mortgaged premises. Judgment was not entered for these taxes, probably on the theory that the note and mortgage were live instruments which had not matured for any cause stated in the petition. Under the circumstances the plaintiff should recover these taxes, and the district court is directed to modify its judgment accordingly. Otherwise the judgment is affirmed.	[ 48, 124, -80, 111, -54, -96, 40, -102, -62, -119, -77, 81, -3, -61, 20, 109, -12, 43, 69, 105, -57, -77, 23, 11, -14, -13, -15, -43, -71, -4, -12, 95, 76, 48, -56, -43, -30, -126, -63, 124, 14, -123, -120, -27, -47, 64, 48, 127, -48, 77, 65, -66, -29, 40, 21, 74, 105, 46, 107, 57, -16, -7, -97, -115, 95, 19, -111, 101, -108, 67, -40, 46, -112, 53, 1, -24, 114, -74, -122, 84, 77, -85, 8, 98, 98, 16, -31, -1, -72, -120, 39, 100, 45, -121, -111, 28, 73, 96, -66, -99, 76, 81, 7, 126, -28, -123, 29, 108, 27, -53, -42, -77, 47, 124, 28, 11, -2, -85, 32, 117, -51, -88, 92, 34, 57, -69, -114, -79 ]
The opinion of the court was delivered by Benson, J.: This is an appeal from a judgment for damages suffered in operating a corn mill in Kansas City, Mo. The plaintiff alleged that: “On January 3, 1912, the plaintiff was an employee of the defendant ... in charge of and attending one of the corn mills of the defendant. This corn mill was being used to grind shelled corn into corn chop. It had two large rollers which were revolving at high speed and were so placed that the corn fed from the hopper above the rollers was ground and crushed between them. The machine was propelled by a steam engine in a distant part of the plant by means of shafting and belts. Whenever the corn mill became choked up from any cause and such choke up was not relieved, the mill would become so choked as to stop the mill itself and thereby burn and destroy the belts, and it was one of the ordinary duties of the employee in charge in case of a choke up to prevent the destroying and burning of belts. . . . While this plaintiff was in the employ of the defendant in charge of said corn mill and while it was in operation it began to choke up under the rollers and was about to choke so tight as to stop the rollers and burn the belts, and thereupon the plaintiff shut off the flow of corn into the hopper and proceeded to clear the corn from above the rollers as it fell from the hopper and thereby he prevented the belts from burning, but in doing so his left hand was caught and carried between the' rollers and his entire left hand and part of his forearm above the wrist were crushed and severed from his body.” The action is based upon the following statute of Missouri: “The belting, shafting, machines, machinery, gearing and drums, in all manufacturing, mechanical and other establishments in this state, when so placed as to be dangerous to persons employed therein or thereabout while engaged in their ordinary duties, shall be safely and securely guarded when possible; if not possible, then notice of its danger shall be conspicuously posted in such establishments.” (2 Revised Stat. of Mo. 1909. § 7828.) The answer, after a general denial, alleged contributory negligence, and assumption of risk was also pleaded. The following special findings were returned by the jury: “Q. 1. Was the plaintiff an experienced miller, at and before the time he received the injuries of which he complains? Ans. ■ Yes. “Q. 2. Was the plaintiff familiar with the construction and operation of the mill by which he was injured? Ans. Yes. “Q. 3. Were the rollers by which the plaintiff was injured boxed and so enclosed that the plaintiff could not get his hand between the rollers without first opening the door, and then putting his hand through the opened doorway? Ans. Yes. “Q. 4. Did the plaintiff voluntarily open the door in front of the roller, and attempt, by the use of his bare hands, to take the shelled com away from the rollers, while the rollers were revolving rapidly? Ans. Yes. “Q. 6. Was there a roller, known as the feed roller* above the two rollers between which the plaintiff’s hand was caught and injured? Ans. Yes. “Q. 8. Was it more dangerous to attempt to remove the shelled corn from the rollers, by the use of plaintiff’s hands, while the mill was in operation, than it would have been to signal the engineer and thus stop the mill, and then after the mill stopped remove the corn? Ans. Yes.” The findings were made upon the plaintiff’s evidence alone, the defendant not having offered any. Error is assigned upon the admissipn of evidence, upon the order overruling a demurrer to the evidence, upon instructions, and upon the denial of judgment for the defendant on the findings. The plaintiff alleged that the defendant was negligent in neither safely nor securely guarding the rollers and machinery, and failing to post notice of the danger as the statute required. The building has three floors, called respectively the ground, first, and upper floors. The engine is on the ground floor. The mill is on the first floor, and the corn to be ground is on the upper floor. The mill is about six feet in height. The corn comes down through a spout into a hopper about fourteen inches wide and three feet long, and through the hopper into feed rollers three inches in diameter and three feet in length. After passing the feed rollers it drops down six or eight inches to the grinding rollers. The mill is a single-stand double-roller Barnard mill, and is operated by cog gears and driven by a belt running from pulleys, one on each side of the mill. A door below the grinding rollers opens into the space underneath. Another door above is hung on hinges at the bottom and fas tened by catches at the top. This door extends the width of the front of the mill and opens into the space above the rollers. There were two other corn mills in the building. An elevator was being operated by the same engine as the mill when the injury occurred. The plaintiff is a miller of .fifteen years’ experience, familiar with this type of mill. He had worked two or three months as a hand in the establishment, but had nothing to do with installing this mill. On the day of the accident the plaintiff started the mill to test its capacity. He soon noticed that it was choking. What then occurred is described in his testimony: “I could tell by the sound the mill was choking, and I opened that door underneath and tried to take the choke out — the door underneath the roll, which is the proper place to take it out if it is possible, but I found the corn chop had stopped in there so tight that it would not feed if I tried to take it out, so I just pushed the thing shut and opened the door on top, and commenced to take the corn out, because I knew it was only a matter of seconds — which I have no power to tell and can not tell as to how soon a mill will choke. I reached in to pull the corn out. I used both hands. I reached in there possibly eight or ten times with both hands. While I was doing that my foot slipped and-kind of throwed me off of my balance and my hand went down that way and cut my hand off. It fell right in those grinding rolls and cut if off between the elbow and the wrist. There was no clutch or other apparatus that I could turn that would immediately release the power from the mill. I could not have thrown the belts from the pulleys; that would be impossible. I could have signaled the engineer from near that mill by the whistle string — that was about eighteen or twenty feet away, I should judge. That was just a little cord lying on the floor. . . . After the mill became in a choking condition I did not go over and pull the cord to signal the engineer to stop because it was not practicable. By all probabilities by the time I went there and pulled the whistle cord the mill would have been down. It would have been choked dead. ... I would think it would stop in half a minute or more, but I have never timed it. That is about the length of time after the steam is turned off. There was no other method of disconnecting the power from the mill. There was a clutch downstairs. The way I would have to go that was over 100 feet from the mill. The first thing for a miller to do when he finds the mill is choking is to go to work and relieve the strain on the mill so they won’t stop, because whenever the mill stops running, the engine is powerful enough to go ahead and drive the belts around and burn them up. “Q. Is it one of the duties of a miller to prevent the burning of the belts? A. Yes. ... “Q. Now, was there another way to relieve that choke up in time to save the belts, that you know of, than the one you applied? . . . A. No, there was no other way that I know of. . . . “Q. The reason you did not stop the machinery was because you thought you didn’t have time? A. No, sir. I consider I did not have the time to do it.” The questions copied' above were answered over the defendant’s objections. Another witness testified: “Q. If you have a signal within 15 or 20 feet of you by which you can signal to the engineer, the engineer can stop the machinery just like that, can’t he (snapping finger) ? A. Yes, he can stop. “Q. Don’t you think, Mr. Bowers, you could stop the machinery in that way and thus relieve the choked condition quicker than you could by just dipping your hands in above the grinding rollers ? A. No, sir. . . . “Q. What do you mean by saying an engineer could stop the machinery that quick? A. I mean he could cut off the power that quick, the machinery would n’t stop that quick.” The plaintiff testified that there was a clutch downstairs, one hundred feet away, but on being asked if it was in working order, the defendant objected and the objection was sustained. The plaintiff and other millers of experience who testified that they were familiar with the duties of a miller in the situation of the plaintiff were allowed to testify, over the defendant’s objection, that when such a mill choked it was the duty of the miller to relieve the strain, to shut off the feed, open the door under the rollers and dig out the product if possible, if not, to open the upper door and rake off the stock with the hands while the rollers are still running; that it was the usual and ordinary custom among millers to do this; and that it was not the custom or practice of millers to signal the engineer to stop. A competent witness testified over defendant’s objection: “After a choke-up started, if you tried to relieve that by first shutting down the engine, what is the result? A. Well, the result is, you got to get it out. ... It saves the belts of course; it only takes a very few revolutions to burn a belt up. If the roll is choked and the engine still running it takes only a very short time, just a few seconds, to ruin that part of the belt that is on your driving pulley.” Evidence was admitted over the defendant’s objection that the rollers could be safely and securely guarded to prevent such injuries, by placing hopper boards or screens over the grinding rollers on the inside of the machine, leaving a space between them for the corn from the hopper to drop through, so that corn could be scraped out with the hands without danger of injury. There was evidence that other corn mills in the same establishment, one a Lee and Barnard mill, were fitted with such hopper boards, and that it was practicable to put them in this one. The following special question was presented by the defendant but not allowed: “Q. 7. Could the plaintiff have stopped the mill, by signaling the engineer, and thus relieved the clogged condition of the mill, if it was clogged, with perfect safety to himself ? Ans. Withdrawn by the court.” The principal questions to be decided are: (1) Was testimony tending to prove what the ordinary duties of the miller were, erroneously admitted: (2) Was the defendant entitled to judgment on the demurrer to the evidence or on the findings? The Missouri statute requires safeguards when the machinery is dangerous to employees while engaged in their ordinary duties. The evidence referred to in the first question suggested was offered to meet this requirement and to show that the plaintiff was in the line of duty when injured. Similar evidence was admitted in the case of an injury to an employee upon a threshing machine (Mastin v. Levagood, 47 Kan. 764, 28 Pac. 977), although its competency was not discussed in the opinion. Evidence to prove the duty of a brakeman in keeping trespassers from trains was' considered, but its admissibility was not commented on, in Kermp v. Railway Co., 91 Kan. 477, 138 Pac. 621. Similar evidence was discussed in Mo. Pac. Rly. Co. v. McCally, 41 Kan. 639, 649, 21 Pac. 574. It was held in Mo. Pac. Rly. Co. v. Mackey, 33 Kan. 298, 6 Pac. 291: “The inquiry of what are the general duties of a fireman on a switch engine in a certain track yard at a stated time, does not relate to a matter which is the subject of expert testimony, and upon which an opinion may be given, but is a question of fact which may be testified to by any witness having personal knowledge thereof.” (Syl. ¶ 2.) In the opinion it was said: “ ‘The duty of a fireman on an engine is to keep the engine hot, to keep steam on, and to assist the engineer in watching for signals.’ “It is claimed by counsel that this testimony was in effect an opinion of the witness that the plaintiff was in the exercise of ordinary care at the time the accident occurred. Not so. There was obviously no purpose to get from the witness his judgment, or an opinion in regard to the manner in which plaintiff had performed this work, or whether he was properly discharging his duty at the time of his injury, nor did the testimony given by him go to that extent. The inquiry went only to the work generally performed by a fireman on an engine in those yards at that time.” (p. 304.) The tendency to liberalize the practice respecting such evidence is luminously stated and advocated in section 1929 of volume 3 of Wigmore on Evidence. The admissibility of this evidence, however, is not violative of any rule or principle heretofore adopted or followed in this court. In Railway Co. v. Merrill, 61. Kan. 671, 60 Pac. 819, testimony of an experienced railroad man regarding the proper position or proper steps for an employee to take in order to pass from a coal car to a box car while in motion was held to be admissible. It was said that the court could not assume that the jury were as competent as the witness to draw a conclusion from the facts, and that such testimony is excluded only when the jury must be considered as equally competent to judge of the situation. S. K. Rly. Co. v. Robbins, 43 Kan. 145, 23 Pac. 113, an authority relied upon by the defendant, was examined and distinguished. (See, also, Duncan v. Railway Co., 86 Kan. 112, 115, 119 Pac. 356.) The principal ground of the objection to the testimony tending to prove the ordinary duty or the customary or usual way of relieving the choked condition is that such evidence can not excuse the plaintiff from doing an act obviously and plainly dangerous and reckless.’ The determination of this particular objection affects the merits of the case presented in the demurrer to the evidence and motion for judgment now to be considered. Referring again to the Missouri statute, it should be observed that it was competent for the legislature to afford relief even where an employee is guilty of contributory negligence, as.our own factory act is held to do. That being so, the question is not altogether whether the employee was negligent within the purview of the law as understood before the statute was enacted, but whether he was performing his ordinary duties within the meaning of that act. This view is supported by decisions of that state, although it is there held in general terms that contributory negligence is still a defense under that statute. Interpreting the statute, Judge Woodson, in Huss v. Bakery Co., 210 Mo. 44, 59, 108 S. W. 68, in a dissenting opinion, after referring to the deplorable loss of life in the great industries of the land, whereby the saying had been given wide publicity in this and foreign countries, that the United States is “a nation of cripples,” stated that Missouri was among the first of the states to enact statutes designed to correct such evils, “To stop as near as possible the mighty slaughter.” (p. 65.) The opinion is highly instructive throughout, but the following quotation may serve the present purpose: “The Legislature knew that the human mind and conduct was such that a servant when in the performance of his duties to his master, surrounded by dangerous machinery, in motion, with his mind concentrated upon his work, oblivious to his surroundings, is liable to slip or take a misstep and fall into the revolving machinery, or thoughtlessly thrust his hand or other portion of his body into the gearing or other portion of the machinery; and if not ‘safely and securely guarded,’ he would in consequence thereof receive injuries of a serious character. It was the intention of the Legislature and the object and the purpose of the statute to put a stop to all such injuries which grow out of such inattention, inadvertence, mishap or accidents, that is, such acts of omission. . . . So, in brief, the rationale of the statute is this: that where it is possible to do so, the master must safely and securely guard the belting, shafting, gearing and drums in his institution; but when this is impossible, then he must give the required notice. This increases the degree of care required of the master regarding those matters from reasonable care to an absolute duty to safely and securely guard such gearing, etc., where it is possible to do so without materially interfering with the working efficiency of the machinery of the institution; but if that is impossible, then he must post the required notice; and if he fails in the performance of those duties, then the burden rests upon him to show that the servant was guilty of such contributory negligence that he would have been injured in consequence thereof, even though the gearing, etc-., had been so guarded, or that the notice had been properly posted.” (pp. 67, 68.) The Missouri courts have since approved a part at least of the opinion from which we have quoted. In Simpson v. Iron Works Co., 249 Mo. 376, 155 S. W. 810, the scope of the factory act of Missouri was stated and it was decided that the section (as it then stood) now under consideration did not require the safeguarding of a belt which was not moving but was in a state of inertia, over which the employee had stumbled. In the opinion, however, the court said: “We think, therefore, that the lawmakers in conditioning the duty to guard upon the phrase above quoted meant thereby that it should attach when the ‘belting,’ etc., should be so placed in a factory that its normal operation would injure any employee who should approach near enough to be caught by its force or subjected to its activity. Such accidents are likely to happen to employees who are engrossed in work near such machines unless they are protected from the workings of the machinery by safe and secure guards. This thought is expressed with clearness, force and completeness by Woodson, J., in the dissenting opinion of Huss v. Bakery Co., 210 Mo. 67, 68.” (p. 389.) This language was followed by the first part of the quotation which we have copied above. In Brashears v. Iron Works Co., 171 Mo. App. 507, the dissent in the Huss case is referred to in the following language in the concurring opinion of Judge Sturgis: “While it is held in Huss v. Bakery Co., 210 Mo. 44, 54, 108 S. W. 63; Dressie v. Railroad, 145 Mo. App. 163, 129 S. W. 1012; Millsap v. Beggs, 122 Mo. App. 1, 7, 11, 97 S. W. 956, that plaintiff may be guilty of such contributory negligence as bars a recovery even in cases where by statute the machinery should be, but is not guarded, yet I do not understand such cases to hold that plaintiff’s conduct as bearing on contributory negligence is to be measured by the same standard of care or, more accurately, that such standard rests on the same basis in cases covered by the statute as it would be if such statute did not exist.” (p. 514.) Further on it was said: “The purpose and effect of this statute in modifying the rule of contributory negligence in cases covered by it by adding a new element to be considered is pointed out in the able dissenting opinion of Woodson, J., in Huss v. Bakery Co., 210 Mo. 44, 59, 108 S. W. 63, and while his remarks were held not applicable to the particular facts and instruction under discussion in that case, I think the law is there correctly stated. . . . ‘Under the common law the defendant was required to furnish plaintiff only a reasonably safe place in which to work and reasonably safe means with which to perform his duties, while the statutes require the defendant to safely and securely guard the gearing when possible; and, if impossible, then to conspicuously post a notice calling attention to the dangers. As a corollary to that increased duty of defendant, the care of the plaintiff was correspondingly decreased and the jury should have been told so in no uncertain words.’ “This proposition of law also finds recognition in the latest decision of the supreme court. (Simpson v. Iron Works Co., 249 Mo. 376,155 S. W. 810.)” (p. 516.) Following this it was said in the Brashears case: “This case is therefore to be distinguished from the line of cases cited by appellant holding that the servant in somewhat similar circumstances, but where the statute did not apply, was guilty of contributory negligence as a matter of law; and the trial court did right in not directing a verdict for defendant on that ground.” (171 Mo. App. 517.) It seems from this brief review of some of the Missouri decisions that while contributory negligence is still a defense under the statute it is something different from what was understood by that" term before the statute. Judge Woodson declared that the contributory negligence must have been such that the injury would have occurred if the gearing, etc., had been guarded, or the notice had been given. If this declaration is not included in the subsequent approval of other parts of the opinion it is still apparent that the employee’s negligence, in order to afford a defense, is not considered in the same light, or placed upon the same basis, as it was before. As was said in Millsap v. Beggs, 122 Mo. App. 1, “The statute must be allowed to count for something.” (p. 11.) The defendant contends that as matter of law the danger of raking out the product with the hands was attended with such obvious and glaring peril that we should hold it to be "reckless, and should declare that the evidence offered to prove that this was the ordinary' manner of relieving the choked condition was inadmissible. But it does not follow that a person is reckless because he places his hands near the parts of machinery which if touched will result in grievous hurt. (Bailey v. Spetter Co., 83 Kan. 230, 109 Pac. 791; Delmore v. Flooring Co., 90 Kan. 29, 133 Pac. 151; Rambo v. Electric Co., 90 Kan. 390, 133 Pac. 553; Bair v. Heibel, 103 Mo. App. 621.) The opinion in the Heibel case contains a full discussion of the statute in question, and refers to a distinction between contributory negligence at common law and under the statute. The em'ployee worked about unguarded cog wheels plainly in view and obviously dangerous, but he lost his balance while pushing a board, lurching against the wheels. The court said : “The true question is as to the respondent’s contributory negligence; and of that he did not convict himself by simply working around the uncovered cogwheels, unless the danger was so great that a prudent person of his years and capacity would have declined to face it. (Settle v. Railway, 127 Mo. 336, 30 S. W. 125; Pauck v. Provision Co., 159 Mo. 467, 61 S. W. 806.) Assuredly, the court would have acted unjustly had it declared the risk to be that extreme, as a legal deduction.” (p. 635.) There was nothing to injure the plaintiff in his work until he dropped his hand too low, the grinding rollers being ten or twelve inches below the door — and that drop was caused by a slip of his foot. Doubtles's many a man bending over a revolving saw, wheels or other mechanism in motion, to examine or adjust the parts or otherwise perform his work, has lost life or limb by a fall caused by some untoward slip or mishap which ordinary diligence could not have foreseen. Before the days of safety coupling, brakemen sometimes lost their lives by being crushed under the wheels after a stumble or fall while doing their perilous work. If the plaintiff without slip or other mishap, had thrust his hand upon the roller a different question would have been presented, which can not be decided now. It seems, therefore, that whether the plaintiff was reckless or so negligent in the performance of his work as to afford a defense within the principles already discussed was, in all the circumstances, a question of fact for the jury. In Lewis v. Barton, 82 Kan. 163, 107 Pac. 783, it was said: “The defendant insists that the plaintiff’s own testimony shows that he voluntarily undertook to perform the duty imposed upon him in a manner which he knew to be very dangerous, when he also knew that another method was much safer. To a.degree the plaintiff’s evidence supports this contention. But there was also testimony of the plaintiff and other witnesses that he performed the task in the customary way, and under such evidence it can not be said, as a proposition of law, that the injury was caused by his own want of care, but all these matters are for the consideration of the jury.” (p. 165.) It is contended that the statutory requirements were complied with; that the mill being enclosed afforded the plaintiff immunity from injury and that he himself created the danger by opening the door and thrusting in his hands. It must be presumed, however, that the door was placed there to be opened and that exigencies of the work might require it. The evidence tended to prove that such an exigency arose by the choking condition. The statutory duty is not necessarily discharged by providing a case or covering for machinery. If the service requires that the coverings be opened in the progress of the work and safeguards underneath or within are possible and practicable they must be provided. Otherwise such statutes would be vain and ineffectual. The practical question under this .statute is whether the machinery so placed as to be dangerous to employees while engaged in their ordinary duties is in fact safely and securely guarded where it is possible, whether the guard consists of an outer covering or something else. Decisions under our statute sufficiently state the principles applicable under the Missouri act. (Caspar v. Lewin, 82 Kan. 604, 635, 109 Pac. 657; Alkire v. Cudahy, 83 Kan. 373, 111 Pac. 440; Howell v. Cement Co., 86 Kan. 283, 120 Pac. 350.) The question whether it was possible or practicable to guard the rollers was one of fact, upon which the evidence offered was admissible. (Warfield v. Morgan, 86 Kan. 524, 121 Pac. 489.) The defendant requested an instruction to the effect that it was the duty of the plaintiff to stop the mill before proceeding to remove the obstruction. This presents the question already considered, which is held to be a question of fact. In Wells v. Swift & Co., 90 Kan. 168, 133 Pac. 732, it appeared that an employee had been injured by the unexpected starting of a rotary motor driven by compressed air. It was held that: “The fact that a screw valve was provided at another point by which the plaintiff could have cut off the compressed air is not fatal to his recovery, since to have used that valve would have cut the air off from another machine as well as from that which he was using.” (Syl. ¶ 2.) ' It was held in Rambo v. Electric Co., 90 Kan. 390, 133 Pac. 553, that an employee of a telephone company could not be charged with contributory negligence as a matter of law merely because he failed to ask that the current be turned off, but incurred the danger of contact with high-tension wires without doing so, although the current would have been turned off had he so requested. These cases sufficiently state the principle to be applied in the situation in which the plaintiff was placed. The instructions given were as favorable to the defendant as could well be given in any recognized application of the doctrine of contributory negligence. Instructions asked by the defendant were drawn upon the assumption that the plaintiff should be held guilty of contributory negligence as a matter of law upon the evidence, or certain phases of the evidence, and the findings. The substance of the requests, so far as they embraced correct propositions, was given. No error is found in the instructions of which the defendant can justly complain. There was no error in refusing to submit question No. 7. That the mill could have been stopped is beyond dispute, but whether it was the duty of the plaintiff to signal for the stop was a question of fact. The question whether he should have used the clutch was of the same nature, and besides he offered to show that it was not in a condition to use. The fact was material and the evidence was admissible. Some other incidental matters are discussed in the briefs, but are sufficiently met by what has been said upon the principal propositions. The judgment is affirmed.	[ -80, -24, -100, -115, 10, -32, 42, -38, 65, -15, -25, 83, -49, -34, -103, 45, 110, 125, -47, 105, -42, -109, 19, -29, -110, 123, -71, -57, -72, 106, -12, -1, 77, 48, 10, -43, -90, -64, 65, -34, -116, 12, 41, -24, 93, 34, 52, 62, 102, 75, 49, 30, 115, 47, 29, -57, 9, 44, -21, 45, 113, 113, -118, -123, 110, 16, 32, 6, -100, 5, -40, 30, -104, -79, 2, -20, 58, -28, -128, -44, 43, -87, 12, 98, 98, 51, -99, -17, 108, -72, 47, -113, -115, -89, -120, 72, 123, 2, -66, -105, 122, 22, 6, 126, -4, 21, 93, 124, 7, -121, -76, -109, -113, 100, 30, 11, -53, -121, -78, 97, -51, -70, 93, 5, 50, -97, -57, -68 ]
The opinion of the court was delivered by Burch, J.: The plaintiff sued the city for damages for personal injuries resulting from the collapse of a bridge. The city defended on the ground that the bridge was not within the city limits. The defendant prevailed and the plaintiff appeals. The bridge spanned White Clay creek and was carried on the county records as bridge number 81 on road number 59. According to the terms of an ordinance passed in 1890, defining the boundaries of the city, a street designated as Thirteenth street formed the western boundary of the city at the locality in question. Thirteenth street extends north and south. A government half-section line runs north and south through its central portion, and the bridge stood upon that part of the street which lies west of the half-section line. In August, 1905, an ordinance was passed taking into the city an addition riot adjacent to the bridge and “changing and defining the corporate limits and boundaries of said city.” This ordinance established the western boundary of the city at the half-section line and consequently left the bridge lying outside the city limits. The incorporation of the addition necessarily effected a change in the city limits. Upon such change being made it became the duty of the mayor and council to declare by ordinance the entire boundary of the city. (Gen. Stat. 1909, § 871.) The corporate limits thus established in 1905 have not since been changed by ordinance. In order to show that the limits of the city did not extend far enough westward to include the bridge, the defendant introduced in evidence the ordinance of 1905. Presumptively the ordinance was valid, the existence of such facts as were essential to its validity was to be presumed, and the ordinance was sufficient to make a prima facie case in favor of the defendant, even if its corporate organization had been attacked directly by the state in an action brought for that purpose. (The State, ex rel., v. City of Atchison, 92 Kan. 431, 140 Pac. 873.) The plaintiff asserts, however, that the ordinance was void. The defendant replies that it can not be required to litigate that subject with the plaintiff, either upon an issue of law or an issue of fact raised collaterally to a personal-injury suit. The defendant’s position is supported by the following decisions of this court: Topeka v. Dwyer, 70 Kan. 244, 78 Pac. 417; Railway Co. v. Lyon County, 72 Kan. 16, 84 Pac. 1031; Chaves v. Atchison, 77 Kan. 176, 93 Pac. 624; Gardner v. Benn, 81 Kan. 442, 105 Pac. 435; Railroad Co. v. Leavenworth County, 89 Kan. 72, 77, 130 Pac. 855; and Price v. City of McPherson, 92 Kan. 82, 85, 139 Pac. 1162. The plaintiff says the cases cited were all cases in which territory had been annexed and corporate boundaries enlarged, while in this case the city undertook to exclude territory from its corporate limits. The distinction does not render the principle involved inapplicable. It was pointed out in the Dwyer case, and in others following it, that the enlargement of corporate limits to include new territory is to that extent a reorganization, and an attack upon reorganization involves corporate integrity the same as if original organization were questioned. A reduction of corporate limits by the exclusion of territory is to that extent a reorganization, and an attack upon reorganization effected in that way involves corporate integrity the same as if original organization were assailed. The plaintiff says the ordinance of 1905 was enacted without' color of law and consequently that it should be disregarded by any court which encounters it. This statement does not sound the controversy. The question here is whether the bridge was outside the corporate boundaries of the city. The proof shows that some five years before the collapse of the bridge, which occurred in September, 1910, the city limits had been contracted under color of an ordinance duly passed and published and acquiesced in by the public and by the law officers of the state. The ordinance may be valid or invalid, but it furnishes color of law for the present corporate organization (Railway Co. v. Lyon County, supra), and for réasons of public policy the plaintiff can not disorganize the city by a collateral attack made in this suit. The plaintiff says the ordinance held to afford color of law in the Lyon county case had back of it a statute permitting the city to annex territory, while the ordinance involved in this case had back of it no statute permitting the city to exclude territory. The ordinance in this case had back of it a statute providing a method by which territory might be excluded from the city, and requiring the city whose boundaries had been changed 'by this method to record the change by ordinance. (Laws 1905, ch. 519, § 7, Gen. Stat. 1909, § 9719.) The plaintiff says that this law is unconstitutional, and that if it were constitutional the steps preliminary to an ordinance recording a change in boundary resulting from the exclusion of territory had not been taken. At the time the ordinance of 1905 was passed the validity of the statute of 1905 had not been questioned. Consequently it furnished color of law for the passage of the ordinance. The existence of the preliminary facts will be assumed, if necessary, and the plaintiff is not allowed to contest either the assumption or the validity of the statute, for reasons stated at length in the Dwyer case, supra: “The rule rests wholly in expediency, and operates in defiance of other legal doctrines. The consequences to society of allowing private collateral attacks upon the existence of cities would be intolerable, and hence courts are concerned with the question, not if there exists a valid law, but if considerations of the public welfare shall forbid any inquiry as to whether or not there is a valid law; not if constitutional limitations have been transgressed, but if the public tranquillity and the effective administration of government require that the matter of validity, or invalidity, shall be ignored and a situation of affairs be arbitrarily recognized as if it were legal, whether in fact it be so or not.” (70 Kan. 249.) The result is that for all purposes of this case the bridge is not within the city. The bridge was of great convenience to the public, including the inhabitants of the city, and the city officials, on occasions, inspected it and contributed to the expense of rebuilding and repairing it. The plaintiff argues from these facts that the city was responsible for the condition of the bridge on the grounds of estoppel and of assumed control. The acts of the city in inspecting the bridge and in contributing to its maintenance in a safe condition merely indicated a desire to promote the public convenience. There is no proof that anybody was induced to use the bridge under the belief that if he were injured the city would make good the damages. The ordinance of 1905 placed the bridge outside the city and in the body of the county. The county records disclosed that the bridge was one for whose defects the county was responsible. The attitude of the city toward the bridge having been declared in the most formal and conspicuous manner possible, by ordinance duly enacted and published, no ground existed for assuming that the legal consequences of the ordinance were to be nullified by occasional and incidental acts of lesser solemnity. Beyond this, however, the city officials could not “assume control” of a bridge beyond the corporate limits and thus make the corporation liable in damages for injuries resulting from its instability, and if the mayor and council should attempt to do so, even by ordinance, the city would not be estopped to deny liability on the ground of lack of corporate power to enact the ordinance. “A pedestrian can not recover damages for injuries due to the defective and negligent construction of a sidewalk outside the legal limits of the city. The fact that the city supposed at the time the walk was constructed that the city limits had been legally extended to include the street, while in fact that extension had been declared to be illegal and void prior to the accident, does not give the pedestrian any right to charge her injuries to the city. “Where the sidewalk was not at the time the pedestrian was injured within the city limits, the city was not estopped from denying that it was, because of the fact that it had by ordinance ordered it to be con structed. The ordinance was ultra vires, and if the city-had no power to enact it no act of its can have the effect to estop it to allege its want of power to enact such ordinance.” (Stealey v. Kansas City, 179 Mo. 400, syl. ¶¶ 1, 4, 78 S. W. 599.) In this state a city has no corporate power except such as the legislature confers upon it. Its corporate duties are measured by its corporate powers. The duty to maintain bridges within the city limits is the correlate of the power to maintain the streets of the city in a condition safe for public travel and to levy taxes and impose local assessments for that purpose. (Comm’rs of Shawnee Co. v. City of Topeka, 89 Kan. 197, 18 Pac. 161.) This power ends at the city limits. With the termination of the power the duty ceases, and there can be no liability without a breach of duty. For roads and bridges in territory lying outside the limits of cities the legislature has made other provision. A city can not by its own ordinance add to its power over public ways any more than a man can by taking thought add a cubit to his stature. Where the act undertaken is beyond the statutory power of a city nothing the city can do can place the act within its power. All persons are put upon absolute knowledge of the public powers of municipal corporations, and the corporate body, whose treasury must supply the funds to pay judgments for damages in personal-injury cases, is no more estopped to deny the validity of unauthorized or illegal acts of its officers in assuming responsibility for the safety of a bridge lying a few feet or a few yards beyond their jurisdiction than it would be estopped if the bridge lay in some remote part of the county, or in some other county. Cases may be found in which it was held that municipal corporations were estopped to deny that they had assumed jurisdiction over bridges, but the bridges in controversy lay within the city limits, and the question was not one of power but whether or not lawful power had been extended as a matter of fact. Cases are abundant in which municipal corporations have been estopped by conduct exhibited in their private, proprietary-capacity, but in their control over streets cities act as agents of the state in a matter of public concern; a matter of concern not only to the inhabitants of the city but to all persons who may havé occasion to use the streets. Cases may be found in which it was decided that cities had responsible authority over territory beyond their borders, but in such instances their jurisdiction had been expressly conferred by the legislature. The result is that the declaration of the court in the case of Topeka v. Cook, 72 Kan. 595, 84 Pac. 376, is as true for the plaintiff in this action as it was for the plaintiff Cook. “An essential fact to a recovery by the plaintiff was that the place where the accident occurred was within the limits of the city, and one which the city was bound to make safe for public travel.” (p. 596.) It may be observed that the word “and” in this quotation does not mean “or.” The place must not only be within the city limits but it must also be one which duty requires the city to maintain properly. A city is seldom required to keep every part of all its public ways in good condition for travel, and very often private bridges are brought within city limits for which the city is not responsible until it assumes control over them in some way. A superficial critic might find fault with a system of law which prohibits the plaintiff from disputing an unauthorized act of the mayor and council while it allows the city itself to repudiate unauthorized acts of the same governing body. Both rules, however, are well founded. Experience has demonstrated that it is fin-wise and unjust to charge corporations with delinquencies of their officers and agents in matters outside the scope of their authority, and this rule is the same for public corporations, private corporations, and private persons. The plaintiff is forbidden to question the particular act of the city which he claims was invalid because of paramount considerations of the public welfare. The disaster to the public would be too great to permit a private person to disorganize a city, which must have defined limits, by destroying its established boundaries, although such boundaries were not established in conformity with law. Besides this, the failure of the plaintiff’s action is not due to any defect in the law. The county should have been made a party defénd'ant, an oversight in the preparation of the petition not' chargeable to the attorneys representing him in this., court. The judgment of the district court is affirmed.	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The opinion of the court was delivered by West, J.: This is an action in ejectment involving the title to a quarter section of land in Kingman county. The court made findings of fact and conclusions of law, resulting in a judgment for the plaintiff from which the defendants appeal and complain of certain rulings touching the introduction of evidence and certain findings made by the court and its refusal to make others requested by the defendants, and of the general result of the trial. From the-findings it appears that in 1884 the plaintiff, then a widow having several children by a former marriage, was married to Lafayette Watts, and the following year with him took up her residence upon the land in question. Two of the plaintiff’s sons and a daughter lived with their mother and stepfather as members of the family and for a time the relations appear to have been pleasant. After the husband’s return from the funeral of his mother he suggested a conveyance of the land to his brother, Oliver Watts, who lived in Missouri, and upon the plaintiff’s objection he became sullen and brutally assaulted one of her boys without apparent provocation, saying that if she would sign the deed to his brother they would get along all right. Shortly after this another attack, still more brutal and cowardly, was made on the same boy, followed by a repetition of the same suggestion to his mother concerning a deed. This was followed by threats of death to the boy and by the peculiar handling of a large pruning knife, and at another time an axe, all of which resulted in the plaintiff’s joining in the requested deed, being moved thereunto by fear of further violence to her boy and bodily harm to her other children, the deed not being made, however, until the plaintiff had suffered a serious nervous collapse, followed by ten days’ sickness. The land was the homestead of the plaintiff and Lafayette Watts, and the court found that the latter, with his brother Oliver, fraudulently conspired to defraud the plaintiff out of her interest and to get the title in the name of the brother and that the conduct referred to was in furtherance of this conspiracy; that shortly after the marriage the plaintiff furnished her husband $400 in money with which to build a house upon the land and to make other improvements, being money inherited from her father’s estate; that when the deed was made (1886) the land was worth $2400, and .at the time of the .trial, June 26, 1913, $7500; that although she lived within a distance of from twenty to seventy miles of this land, the plaintiff did not until the bringing of this suit, August 12, 1912, take any steps to set aside the deed. In the spring of 1887 Lafayette Watts left the plaintiff, taking some of the household goods, and never returned to live with her, merely visiting her two or three times. Various other findings were made that need not be discussed. It was, however, expressly found that the deed passed only the naked legal title and that the land continued to be the property of Lafayette Watts until his death, April 23, 1910; that Oliver Watts was appointed administrator and did not make the slightest exertion to find the plaintiff’s address or whereabouts, and procured final settlement, which was set aside on her motion, without recognizing her as one of the heirs and without giving her any notice of his appointment, which the court found was fraudulent misconduct on his part amounting to a continuance and carrying out of the original conspiracy, and that the deed by Oliver Watts to the defendants was voluntary and without consideration and made for the purpose of defrauding the plaintiff. Also that the plaintiff first learned of Lafayette Watts’ death in July, 1912, and there was no unreasonable delay on her part in bringing this suit; that Lafayette Watts left no bodily heirs, but left the plaintiff as his widow. As a'conclusion of law the court found that the execution of the deed was procured by fraud, coercion and duress, and did not carry with it the joint consent of the husband and wife, and that the plaintiff as the sole heir of Lafayette Watts and hence the sole fee owner of the land was entitled to have her title quieted and to recover for rents and profits. ' Much complaint is made because the plaintiff was permitted to answer whether or not she had heard that her husband made threats in case she did not sign the deed and that she “had it from the surrounding circumstances, what happened,” and it is asserted that this violated the statutory bar against testimony concerning transactions or communications had with deceased persons. But the fact that she had heard that ire had made threats would imply that she had heard it from others rather than from him, and as to What had happened she was not permitted to state, hence the testimony was properly admitted. (Murphy v. Hindman, 58 Kan.. 184, 48 Pac. 850; Gaston v. Gaston, 83 Kan. 215, 109 Pac. 777; Bryan v. Palmer, 83 Kan. 298, 111 Pac. 443; Fish v. Poorman, 85 Kan. 237, syl. ¶ 7, 243, 116 Pac. 898; Coblentz v. Putifer, 87 Kan. 719, syl. ¶ 2, 725, 125 Pac. 30; Dennis v. Perkins, 88 Kan. 428, 436, 129 Pac. 165.) It is urged that it was highly improper to receive testimony of statements made by Lafayette Watts after the deed was made to the effect that he still owned the land which he had deeded to his brother to defraud his wife. No reason is apparent, however, why one who has carried out such a conspiracy should not, as against the person defrauded, be bound by his subsequent acknowledgment thereof. " It is not a case of a grantor destroying the effect of a deed as between himself and his grantee; and .especially in view of the fact that he treated this land as his own and received rent for it and exercised dominion over it, it was proper for his widow and heir to show his statements and declarations touching his relation to the land. (Martin v. Shumway, 89 Kan. 892, 132 Pac. 993.) The defendants also urge that the findings of fact should have been for them and not for the plaintiff, which evidently means that in their opinion the fraud and duress were not sufficiently proved, but it is impossible to read the evidence without finding ample support for the charge of duress of a peculiarly cruel and effective kind. Complaint is made that the court did not at the defendants’ request vacate the thirty-six findings of fact made and return fifty-six others submitted by them, but such examination as is consistent with the brevity of human life has resulted in finding no error in this respect. It is urged that because the plaintiff did not move to set aside the deed or .take any other steps to protect her rights alf the many years which elapsed between its execution and the death of her husband she must be held to have jointly consented and to have estopped herself by her laches. The trial court found, however, that the land remained as it was except slight improvements ; that the rights of no innocent third party had intervened; that in accordance with the repeated statements made by the deceased himself he continued to be the owner of the land, which as a matter of course the sole heir would inherit upon his death. (Clark v. Coolidge, 8 Kan. 189; Golden v. Claudel, 85 Kan. 465, 471, 118 Pac. 77; Rambo v. Bank, 88 Kan. 257, 128 Pac. 182; Osincup v. Henthorn, 89 Kan. 58, 130 Pac. 652; City of Hutchinson v. Hutchinson, 92 Kan. 518, 141 Pac. 589; 36 Cyc. 730.) As to adverse possession, neither Oliver Watts nor. either of the defendants had ever been in Kansas prior to the trial, hence the statute of limitation does not avail. (Civ. Code, §20; Ard v. Wilson, 8 Kan. App. 471, 54 Pac. 511; affirmed, 60 Kan. 857, 56 Pac. 80; C. E. & N. Rly. Co. v. Cook, 43 Kan. 83, 22 Pac. 988.) Finding no material error the judgment is affirmed.	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The opinion of the court was delivered by West, J.: Abraham Blauer, born in Switzerland, moved to Nemaha county, Kansas, in 1868, was married in 1869, and settled upon a farm where he and his family lived until 1898,' when they moved to the town of Bern. The wife died in 1900. The only child, a daughter, Margaret, was born in 1870, and married at the age of nineteen to a Mr. Grossenbacher, by whom she had four children, John, Fritz, Sophia, and Marguerite. In 1890 she and her husband moved upon the farm with her parents. Her husband died in 1897, and in 1898 she joined her parents at Bern. After her mother’s death she continued to live with and keep house for her father. In September, 1902, she was married to Mr. Dreisbach, by whom she had one daughter, Gladys, now about nine years old. Her husband died in 1905, leaving her several thousand dollars’ worth of property. Mr. Blauer was strongly opposed to her marriage with Mr. Dreisbach. Upon her marriage she went to live with her husband at his home. In July, 1903, Mr. Blauer made a will providing that all of his property at his death, after the payment of debts and a bequest of two hundred dollars to his daughter, should be held in trust by the executor or administrator for the use and benefit of his four grandchildren, John, Fritz, Sophia, and Marguerite Grossenbacher, “or the survivors of them, during their natural lifetime, but only the net income from said real and personal property thus held in trust shall be paid to my said grandchildren or their survivors in equal shares, said income to accumulate in the hands of the trustee until each of said grandchildren becomes of age, when its respective share is to be paid to it, and thereafter to be paid annually, and at the death of the last survivor of my said four grandchildren all of the estate held in trust, both real and personal, shall be equally divided between the heirs of my said grandchildren being issue of their bodies, but should they all die without issue, then said estate is to go to the heirs at law of my brothers and sisters and their heirs and assigns forever.” In March, 1905, he executed a codicil, simply making a change in the name of the trustee, but reciting that the former was still his last will and testament and that he again published and declared that he desired the devises, bequests and provisions carried out as therein declared and stated. The testator died in July, 1908, leaving an estate worth in the neighborhood of $60,000. In July, 1911, the plaintiff, Margaret Dreisbach, brought suit against the executor and the four beneficiaries, alleging, among other things, that the will provided for the alienation of the property for an indefinite and unreasonable period, that it was void as offending the rule against perpetuities, and that at the time of its execution the testator was mentally unsound and was unduly influenced by his financial agent and business manager, Jacob Spring. It was further alleged that the plaintiff accepted the two-hundred-dollar bequest in ignorance of the facts and her rights, and she tendered the amount thereof back with interest. The answers amounted, in substance, to general denials. An extended trial followed, and the controversy hinged almost entirely upon the condition of the testator’s mind. The theory of the plaintiff was and is that not only was the testator enfeebled in health for some time before making the will, but that at the time of its execution he was suffering from a delusion that his daughter was no longer virtuous', there being no cause or reason for such notion. Numerous witnesses were examined as to the mental condition of Mr. Blauer, and the trial court found and determined that the daughter was and is of unimpeachable moral character, and that the father was of sufficient mental soundness to make the will in question understanding^, and that he was not under any undue influence. It is needless to review or rehearse the evidence upon the testator’s mental condition for the reason that there is sufficient in the record to sustain and support the conclusion reached by the trial court. The plaintiff insists that it does not appear from the record that substantial justice has been done by the trial court, but on the contrary the greatest injustice has been done, and that under section 581 of the civil code, “It is the duty of this court to read the evidence in this case in order that substantial justice is done the appellant and her children.” There is nothing, however, in this provision of the code which makes this court a retrier of facts passed upon by the trial court when the conclusion reached is supported by competent testimony. It is also urged with force and earnestness that the apparent desire of the testator to disinherit his only child is a matter for serious consideration, especially upon the question of his mental capacity. The jus disponendi is such, however, that when testamentary capacity is established or unsuccessfully attacked, the owner of property may dictate to whom it shall go at his death although the court called upon to review; his decision may feel that it was unreasonable, unaccountable, harsh or unjust. (Ginter v. Ginter, 79 Kan. 721, syl. ¶ 9, 101 Pac. 634; Kerr v. Kerr, 85 Kan. 460, 116 Pac. 880; Singer v. Taylor, 90 Kan. 285, 289, 133 Pac. 841.) The plaintiff, the only child, was given very little schooling and was required to work on the farm very much as would have been expected of a son, and appears to have been a kind and dutiful daughter and to have taken good care of her father while living with him before her second marriage. It seems regrettable, therefore, that the testator desired in his will, although reciting that he had at various times during his life given her money, to give her the paltry sum of two hundred dollars and manifestly intended that this should be the limit of her participation in his estate; but if juries and courts were permitted to overrule the choice made by testators and substitute their own notions of fairness and propriety, the right of testamentary disposal of property would be too tenuous and uncertain to possess substantial value. The court held void as in violation of the rule against perpetuities that clause providing that should the four grandchildren all die without issue the estate should go to the heirs at law of the testator’s brothers and sisters and their heirs and assigns forever. All parties appeared to acquiesce in the view of the court as to this clause, but the plaintiff contends that this void provision destroys the entire will; that the general scheme of the testator was to so devise the property that it should under no circumstances go to the plaintiff or her children, and yet should her children die without issue she would be entitled to take as heir at law of the testator. The rule is invoked that when the legal and illegal portions of the will are so connected as to constitute an entire scheme which would be defeated by the rejection of the illegal portion, the whole must fall, and numerous authorities in support of this rule are cited. The appellant urges that an examination of the will shows a 'scheme so to tie up the property that neither the daughter nor any of the testator’s grandchildren should ever receive any of it or any substantial benefits therefrom. The defendant suggests, on the contrary, that it seems plain from the will that the general scheme was to conserve the property in the hands of the trustee so that the Grossenbacher children and the heirs of their bodies should have not only the net income but the entire estate, and that in the very remote and improbable contingency of their all dying without issue the clause was inserted that the estate should go to the heirs of the testator’s brothers and sisters at law and their heirs and assigns. We think it quite plain that Abraham Blauer so disliked his second son-in-law that he did not desire his widow or his child by her to receive any of the estate, but that he had sufficient affection for her children by her former husband to intend that it should go to them and the heirs of their bodies. It hardly seems reasonable, however, that he could Rave deemed it sufficiently probable that they would all die without issue to have regarded the void provision made in that event as of equal importance with the other desires expressed in the will. Still more improbable would it be that these four grandchildren would all die without issue during the life of their mother so that she could take as heir of the testator. We do not find sufficient basis, therefore, in the evidence and the circumstances shown thereby to apply the rule that if a part fall the whole must also fall. We agree with the appellant that the acceptance by her of the two-hundred-dollar bequest under the circumstances shown does not estop or preclude her, in view of the tender made in her petition, from maintaining her suit. (Medill v. Snyder, 61 Kan. 15, 58 Pac. 962.) It is also argued that the will is void for uncertainty for the reason that neither the mother nor any of her five children may receive any portion of the property, but at.most only the net income; that it is impossible to determine whether the share of each of the four grandchildren named is to be paid when he becomes of age or when the youngest becomes of age, or whether in case of the death of all four the property is to be divided among the heirs of their bodies per capita or per stirpes. But we do not regard these provisions sufficiently uncertain to impair the validity of the instrument. The counsel who appears as guardian- ad litem for the minor defendants has presented, both orally and in writing, an able argument in support of his theories as to the construction and effect of certain provisions found in the will. He requests that we construe the instrument, and urges that we hold the trust to be passive, the devise an executed one to the grandchildren, and the estate an estate tail which may be barred by the deed of such grandchildren when the youngest becomes of age. But the pleadings and proceedings show no request for construction made to the court below, and being made here for the first time we do not deem it fitting to consider it. Should a construction be desired a suit for that purpose can be brought in the proper forum in the usúal way. Having considered every point presented and finding no material error in the record, the judgment is affirmed.	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The opinion of the court was delivered by. BURCH, j. : The action was one for compensation under the workmen’s compensation act. (Laws 1911, ch. 218,- as amended by Laws 1913, ch. 216.) Compensation was awarded the plaintiff for partial incapacity to work, for the maximum period and in a lump sum. The defendant appeals. The plaintiff alleged in his petition that the defendant had not filed with the secretary of state an election not to accept the terms of the workmen’s compensation act. The allegation was denied, and it is assigned as error that it was not proved at the trial. Conceding for the present that, the allegation was necessary in order that the petition should disclose liability under the workmen’s compensation act, and that such an allegation must be proved when denied, failure on the part of a plaintiff to make such proof can rarely be of consequence on an appeal to this court. The defendant in an action for compensation always knows whether or not he filed with the secretary of state a written statement that he elected not to come within the act. If he denies liability in good faith on that ground, he will ask the court to investigate that issue first to save the trouble and expense of a further trial. In all but the most exceptional cases the certificate of the secretary of state will settle the dispute. Whenever the question is raised, whether at the beginning of the trial, on a demurrer to the plaintiff’s evidence, or on the motion for a new trial, the court can call for the summary production of such a certificate. Unless the record shows that the matter was specifically and unequivocably brought to the attention of the trial co.urt while it had possession of the case and. power to dispose of'it as justice required, this court will regard the issue as abandoned. It would be gross abuse of procedure for a defendant to veil an oversight in making proof under a general demurrer to the evidence and a general motion for a new trial, and then appeal to this court for a new trial when the evidence is all the time lying in a public office barely outside the reach of judicial knowledge, and when the new trial, if granted, would extend to that issue alone. An allegation in a petition, however, that a defendant has not filed with the secretary of state an election to remain outside the. provisions of the compensation act is not indispensable, and is formal rather than substantial if made. The statute declares its purpose to be to establish a new system of compensation for injuries to workmen in certain hazardous employments. It expressly declares a presumption that all employers affected by the act .are within its provisions, and an employer is within its provisions unless he has mani fested an election to the contrary in the manner prescribed and has posted notices to that effect in conspicuous places in and about his establishment. (Laws 1911, ch. 218, § 44, as amended by Laws 1913, ch. 216, § 7.) The presumption obtains until the contrary appears, and nonliability because of an election to stand outside the provisions of the law becomes essentially an affirmative defense. In this case the defendant’s answer specifically admitted that he had not filed the election required to avoid liability under the compensation act. The admission was omitted from an amended answer, but credit was claimed for certain payments to the plaintiff made under a clear recognition of-liability under the act, and the defendant requested the court to make certain findings based on an assumption of such liability. This authorized the court to conclude that the defendant was within the act, and no suggestion is tendered that a different conclusion would be reached if the judicial machinery were again set in motion. ' The plaintiff was a carpenter and brickmason by trade. During a period of dullness in those trades he took employment with the defendant as a car repairer. While so engaged a piece of steel struck his right eye, penetrated- the tissues so that the fluid portions of the organ escaped and total blindness resulted which can never be remedied. The iris of the injured eye, which formerly was blue in color, has turned black, and the left eye has become weakened to such an extent as to impair clear and sustained vision. Capacity to use tools is diminished because of inability to estimate distances accurately with one enfeebled eye. The plaintiff is thirty-eight years old, for eighteen years has ■worked in the trades mentioned, and good eyesight is necessary in order to hold employment in them. Since his injury the plaintiff hias done a little work on the streets of the city of Ottawa, where he resides with his family, and has chopped a little wood, working about a fourth of a day at a time, but in trying to chop wood he had difficulty in measuring distances in order to strike with precision. He had opportunity to secure other work which he would have accepted if he had been able to see to do it. Before his injury he had good eyesight, was strong and. able-bodied, and was always busy at his trade except during occasional temporary business depressions. The court ruled that the plaintiff was entitled to recover compensation at the rate of $6 per week for eighteen weeks, and at the rate of $3 per week for the further period of seven years and thirty-four weeks, and rendered judgment in a lump sum accordingly. Various objections are interposed to this judgment. The workmen’s compensation act contains the following provisions material to the controversy: “Section 11. Amount of Compensation. . (c) When partial incapacity for work results from injury, periodical payments during such incapacity, commencing at the end of the second week, shall not be less than twenty-five per cent, nor exceed fifty per cent, based upon the average weekly earnings computed as provided in section 12, but in no case less than three dollars per week or more than twelve dollars per week; provided, however, that if the workman is under twenty-one years of age at the date of the accident and the average weekly earnings are less than $10.00 his compensation shall not be less than seventy-five per cent of his average earnings. No such payment for total or partial disability shall extend over a period exceeding eight years.” (Laws 1911, ch. 218, § 11, as amended by Laws 1913, ch. 216, § 5.) “Sec. 12. Rule for Compensation. For the purposes of the provisions of this act . . . the following rules shall be observed . . ..:(/) In the case of partial incapacity the payments shall be computed to equal, as closely as possible, fifty per cent of the difference between the amount of the ‘average earnings’ of the workman before the accident, to be computed as herein provided, and the average amount which he is most probably able to earn in some suitable employ ment or business after the accident, subject however, to the limitations hereinbefore provided.” (Laws 1911, ch. 218, § 12.) “Sec. 36. Actions. A workman’s right to compensation under this act, may, in default of agreement or arbitration, be determined and enforced by action in any court of competent jurisdiction. . . . The judgment in the action, if in favor of the plaintiff, shall be for a lump sum equal to the amount of the payments then due and prospectively due under this act, with interest on the payments overdue, or, in the discretion of the trial judge, for periodical payments as in an award.” (Laws 1911, ch. 218, § 36.) It will be observed that compensation is awarded for incapacity to work as a result of injury. In an effort to comprehend the true basis of compensation which the legislature established, the defendant interprets the expression “incapacity to work” to mean actual physical inability to perform work, and he would exclude physical impairment which, although it might prevent the plaintiff from securing work, would not prevent him from performing work if obtained. The argument is that the disinclination of employers, particularly in the mechanical trades, to take crippled, disfigured or otherwise physically defective persons into service, notwithstanding their protestations of competency, can not be considered as incapacity to work. The question is not sharply presented by the evidence, but it may as well be considered now since it is involved in the interpretation to be given the statute. What the legislature had in mind was compensation for loss of earning power as a workman as a result of injury. Whether this loss manifest itself in inability to perform work which is obtainable or inability to secure work to do is not very material. While personal injury must occur, the word “incapacity” is not expressly qualified by the use of the word “physical” in the statute, and any deprivation of power to earn wages ás a workman as a result of injury is incapacity within the meaning of the law. The defendant insists that the evidence was insufficient to sustain a judgment for compensation for the length of time allowed by the court. Under the terms of the statute the periodical payments which are the units of compensation are to be extended “during incapacity,” not exceeding eight years. The duration of incapacity becomes, therefore, a subject for the determination of the trial court, and is to be determined in the same way as other questions of fact. The task will frequently be difficult to discharge because of the speculative nature of the subject and because of the moral factor involved, the character and ability of the injured workman. Very often the solution of the medical question of the curability or incurability of the plaintiff will not carry the court very far. .Probable earning capacity in some suitable employment or business after injury must be taken into consideration in computing the amount of the payments to be awarded, and facts indicating probable future earning capacity will sometimes have a bearing upon the duration of incapacity. The trial court’s observation of the plaintiff, in the course of the hearing, is likely to be especially informing. Because of these facts, and some others peculiar to the subject, a challenge of the correctness of the conclusion of the trial court respecting the duration of incapacity must necessarily be considered on appeal in the same way as other challenges of a similar nature. In this case the loss of the plaintiff’s eye is an injury necessarily permanent in its nature. A consequent reduction to a lower economic status was fully disclosed by the evidence. There was no direct proof that the plaintiff can ever retrieve his former capacity. The court itself examined him at some length, and from his appearance, his demeanor, and the unconscious disclosures which inevitably accompany human conduct, was able to form an estimate of his personality which can. not be brought to this court by appeal, but which was probably as important as any fact established by the testimony. It is impossible, therefore, to declare that the trial court’s finding that to this plaintiff the loss of his eye constitutes permanent partial incapacity is not sustained. The defendant insists that compensation must cease when the plaintiff’s partial incapacity to work as the result of his injury ceases, that the plaintiff is likely to become able to work with his remaining eye, and to secure suitable employment, so that incapacity will end long before the expiration of the time for which he is allowed compensation. Therefore, it is said, an award-of periodical payments should have been made instead of judgment for a lump sum. It may be conceded that compensation should cease when incapacity to work as the result of injury ceases, but the defendant’s argument ignores the finding of the trial court that the' plaintiff’s incapacity is permanent so far as the remedy afforded by the statute is concerned. The statute confers express power to render judgment in a lump sum instead of making an award of periodical payments. In every case the trial court must exercise its judgment and discretion as to the best method of making compensation in the light of all the facts, and the result can not be disturbed on appeal except for an abuse of the power. The judgment of the district court is affirmed.	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The opinion of the court was delivered by Johnston, C..J.: The appellant, John T. Giles, the owner of an automobile, brought this action against the appellee, John P. Ternes, to recover damages for injuries to his automobile resulting from a collision with appellee’s horse and buggy. It appears that the appellant was driving westerly on a public highway near Wichita at a rate of from six to twelve miles an hour at about nine o’clock on the night of August 11, 1912, and that the appellee, with his wife, was driving easterly in his buggy on the same highway. The appellant alleged that the highway at the place where the collision occurred was about eighteen feet wide, that both parties were traveling in the beaten part of the highway, that signal lights were displayed on the automobile which were seen by appellee, that appellee negligently and carelessly failed to turn aside from the center of the roadway and failed to display any lights on his buggy as it was his duty to do, and that because of appellee’s carelessness and negligence in these respects the collision of which he complained occurred. The appellee answered, and by way of cross-petition alleged that the collision was caused by the negligence and carelessness of the appellant in not providing his automobile with sufficient lights or such lights as are required by law. The appellee further alleged that when the collision occurred he and his wife were thrown out of the buggy and permanently injured, that the horse appellee was driving was permanently injured and that the buggy was damaged to the extent of $25. The appellee therefore asked damages for his personal injuries in the sum of $500, for the loss of his wife’s services in the sum of $2000, for medical attention for both of them to the amount of $500, and for injuries to the horse and buggy to the amount of $125, or a total damage of $3125. On the trial of the action the jury returned a verdict against appellant and fixed the amount of appellee’s recovery at $585. In answer to special questions submitted by appellant, which only partially covered the case, the jury, in effect, found that the collision occurred on a dark night when the appellant was driving his automobile at a speed of from six to twelve miles an hour, that he only displayed white lights which were visible for a reasonable distance in the direction in which the automobile was proceeding, that he turned his automobile out of the beaten path to the left just before the collision, that he did not know of the approach of appellee’s horse and buggy before the accident, and that appellee saw the lights on appellant’s automobile before the collision occurred. The appellant complains that the court erred in refusing to submit some special questions which he presented. In the first place it appears that more than ten of appellant’s questions were submitted by the court, and that is the number to which a party is entitled as a matter of right. Whether a greater number will be allowed is within the discretion of the court. (Laws 1913, ch. 239.) The controlling reason, however, why the ruling can not be held erroneous is that the evidence in the case was not transcribed or preserved in any way and without it we can not determine that there was a basis for the questions refused. The refusal to submit special questions is not error if there is no testimony from which the jury might answer them. The absence of the evidence precludes- the determination of a number of questions argued by appellant. (Typewriter Co. v. Andreson, 85 Kan. 867,118 Pac. 879; Davidson v. Timmons, 88 Kan. 553, 129 Pac. 133.) Appellant complains of the submission of several special questions that were asked by the appellee. It appears that these were submitted for answer in the event that the verdict should be in favor of the appellant, but as it was in favor of the appellee no answers to these questions were returned. Error can not be predicated on the submission of questions that were not considered or answered by the jury. An instruction of the court defining contributory negligence and stating that the plaintiff could not recover if he was guilty of contributory negligence is assigned as error. There.is no complaint of the definition given, but it is contended that appellant’s negligence was not an issue under the pleadings in the case. The appellee filed what is called an answer and cross-petition; which contained, first, a general denial, and then, under the heading of cross-petition, there followed appellee’s statement of the circumstances under which the collision occurred, in which it was alleged that the accident and its consequences were the direct result of the negligence of appellant. It was charged that he was guilty of gross negligence in driving his automobile on a dark night without sufficient lights and at an unwarranted rate of speed, and that by reason of his negligence the collision occurred which resulted in injuries to appellee, his wife and his property, for all of which he asked damages. The appellant treats the first part of the pleading as an answer and the second as a cross-petition, and because the charge of negligence against the plaintiff is found in the second part and not in the first he contends that appellant’s negligence was not fairly presented. Such an artificial division of the pleading is not warranted. All the averments were contained in a single pleading and all related to a single occurrence, and by these the appellant was advised that his own negligence was involved in the issues. An objection, was made to the eleventh instruction, which is to the effect that the purpose of lights on an automobile is not only to enable a person approaching an automobile to see it, but also to enable the driver of an automobile to see a reasonable distance in the direction in which the automobile is proceeding, and that the lights must be sufficient for this purpose. The -appellant insists that the challenged instruction fixes a different standard and exacts a higher degree of care of those operating an automobile at night than does the statute, which prescribes that there shall be exhibited on an automobile “one or more lamps showing white lights, visible within a reasonable distance in the direction towards which the automobile- is proceeding.” (Gen. Stat. 1909, § 449.) We think not. While'nothing is said in the statutory provision as to the degree of strength or brightness of the lights, it does provide that they must be visible for a reasonable distance in the direction in which the automobile is going. This requirement was made for the safety of all those using the highway. The lights are not alone required to guide and benefit those approaching the automobile on the highway, but also for the direction and guidance of those in charge of the automobile. Appellant argues that the lights are only intended to warn those approaching the automobile, so that they may avoid colliding with it. It is the duty of the motorist to keep a vigilant watch ahead for other vehicles as well as fox-pedestrians upon the highway, and the lights are required to enable him to see persons and vehicles on the highway in time to avoid them as well as for the protection of those occupying the automobile. In Lauson v. Fond du Lac, 141 Wis. 57, 123 N. W. 629, the court indicated the importance of lights as affecting the duty pf the motorist by holding that if he ran an automobile over the highway on a dark night at such a speed that he could not stop his machine within the distance he could see objects'ahead of him he was not exercising due care even to those in the automobile; also that the lights are required for the protection of other travelers on the highway as well as for those in the automobile; and further, that to run an automobile at night without adequate lights to enable the motorist to see objects ahead of him in time to avoid them is negligence independently of any statute on the subject. A ffke rule was applied to the operation of a street car by the supreme court of Connecticut, where it held that “When running at night, it must be provided with such means of illumination as may be requisite, in connection with the light, if any, to be expected from other sources, to enable the motorman to see far enough ahead to do whatever ordinary care may demand in order to avoid a rear-end collision with any other vehicle upon the railway track. . . . The speed at which any vehicle can be driven over a highway at night must be determined partly in view of the distance ahead' at which travelers upon or approaching the same ■ highway would become visible.” (Currie v. Consolidated Ry. Co., 81 Conn. 383, 386, 71 Atl. 356.) There is complaint, too, of instruction No. 14, to the effect that if the appellee in approaching appellant on the night of the collision turned his horse and buggy to the right of the center or well-beaten track of the highway, and the appellant, instead of turning his automobile to the right of the center, turned it to the left, so that a part or all of the automobile was south of the center of the highway, and that by reason of running the automobile on that side of the highway the injury was inflicted, it would constitute negligence on the part of the appellant. The driver of a vehicle is not necessarily negligent when he drives to the left of the center of the highway, as he is at liberty to use any part of the highway except in the case of meeting another vehicle or person, and then, under the rule of the road, he is required to keep to the right. The fact, therefore, that he travels' on the left side of the highway will not render him liable for injuries suffered by others unless the course taken by him contributes to the injuries. Under some circumstances the instruction as given might have been hurtful, but, in the absence of the evidence, it can not be held that the appellant was prejudicially affected by.the giving of the instruction without further qualification. The appellee contends that the evidence in the case showed that appellant was driving his automobile at a speed of from six to twelve miles an hour on a dark night without sufficient lights upon a road leading into a populous city, which he was bound to know was being used by many others, and that he turned to the left of the traveled portion of the road in violation of the law of the road and ran into the horse and buggy of appellee who, in order to avoid the collision, had turned to the right side and almost into' the ditch. If this was the evidence, and the finding of the jury is to this effect, it is clear that appellant was not prejudicially affected by the instruction as given. Without the evidence we are bound to presume that within the issues the evidence was such as to warrant the instruction given, and also that an instruction, even if incorrect, was not prejudicial; and further, that the general verdict imports a favorable finding by the jury upon every material allegation of the appellee and every issue in the case not inconsistent with the special findings which were returned. In the state of the record we can not say that the instruction has prejudicially affected the result. (Insurance Co. v. Curry, 44 Kan. 741, 25 Pac. 221; Woodford v. Light Co., 77 Kan. 836, 92 Pac. 1133.) Complaint is made that there is no evidence to warrant the giving of another instruction, but as there is no evidence preserved that question is not open for consideration. Finding no material error, the judgment of the district court will be affirmed.	[ -16, 114, -16, -82, 10, 98, 42, 26, 117, -111, -76, 83, -87, -53, 13, 49, -18, -67, 80, 107, -10, -77, 23, -78, -110, 115, -21, -49, -99, -56, -12, 118, 76, 32, 10, -105, -26, 74, -59, 92, -50, 6, 41, -20, -103, -78, -68, 122, 4, 75, 49, -97, -61, 42, 28, -45, 109, 40, -21, -96, -127, -16, -118, -123, 111, 6, 49, 4, -102, -127, 88, 44, -112, 49, 40, -4, 115, -90, -110, -12, 105, -103, 8, 34, 102, 33, 53, -51, 124, -104, 6, -70, 15, -92, 2, 24, 32, 1, -65, -99, -5, 16, 7, 126, -7, 93, 85, 96, 7, -53, -108, -93, -25, 48, -98, 18, -37, -115, 48, 97, -50, -10, 77, 69, 126, -101, -113, -66 ]
The opinion of the court was delivered by West, J.: The plaintiff made a contract with L. M. Oliver and Charles Rutherford to exchange certain real estate in Peru, Kan., for a farm in Lane county, plaintiff to give a mortgage back on the farm for $1400. After the property in Peru had been examined the contract was changed so that the mortgage on the farm was to be $1600 instead of $1400 and a bond for a deed was executed to plaintiff by Oliver and Rutherford, and also J. E. Atwood and W. E. Traylor, by which the obligors - undertook in the sum of $3200 that a deed should be executed on or before April 1, 1911, upon payment of the sums called for by' the contract, and just before the clause setting forth the obligation this sentence was inserted: “This Bond is to be null and void as soon as court sets and clears title to this land.” The plaintiff, who appears to have performed his part of the contract, sued to recover on the bond, and judgment was rendered in his favor for $1880 against the defendants, Oliver and Rutherford, and the trial court found that Atwood and Traylor were not liable and rendered judgment in their favor for costs. The plaintiff appeals and insists that he was entitled to judgment against all the obligors. It is stated in the brief of the defendants that,the clause quoted was typewritten, the rest of the bond being a printed form. The question of the two formerly successful defendants’ liability depends upon the effect of their testimony. • Mr. Atwood testified that Mr. Rutherford asked him to sign the instrument, which he understood “was a guarantee that they would quiet title to a certain piece of property and it was stated that as soon as the court quieted the title that the bond would be null and void.” On motion the court struck out “that part which recites what the Bond recites” and allowed the rest to stand. Mr. Traylor testified: “A. I wrote the Bond and signed it under the conditions that seemed to be stated on the face of it. “Q. Now are there any other conditions under which you signed the Bond other than what appears on the face of it? A. I did not read all the Bond carefully. • I was in a hurry and I signed it for one reason because I thought Dr. Atwood had read it and it was to a certain extent on his judgment as well as on mine— “By the COURT. You say you wrote the Bond yourself, do you? A. I wrote the typewritten part, all the other part, the printed part, I had not studied it. “Q. Do you remember whether or not you read the printed part on the bottom? A. No', sir; that is not my understanding.” This is substantially all the evidence on this point, and instead of showing lack of liability it shows that the two successful defendants signed the bond with knowledge or with full opportunity of knowledge touching its contents; and construing the provisions of the instrument so as to give each fair effect, as -the rule requires, it is clear that even if the title had been quieted the conveyance had not been executed, and the one without the other would be of no value to the plaintiff. The four obligors were bound for the fulfillment of the obligations and neither of them is entitled to release merely because -he carelessly signed without fully investigating and understanding what the instrument contained. The judgment as to the two defendants J. E. Atwood and W. E. Traylor is reversed and the cause remanded to include them with the other judgment debtors.	[ 82, 104, -11, -113, -54, 64, 42, -104, 121, -80, -90, 83, -55, -59, 4, 33, -27, 45, 113, 104, 68, -74, 23, 1, -46, -13, -47, -51, -71, -19, -12, 87, 76, 48, -62, -107, -26, 72, -63, 20, -114, 6, 8, 68, -37, -64, 52, 31, 22, 72, 1, -98, -13, 42, 29, -62, 109, 42, 107, 61, -112, -8, -85, -121, -17, 6, 19, 5, -100, 69, 88, -84, -112, 53, 9, -24, 115, 54, -122, -44, 41, -119, 41, 118, 102, 32, 116, -17, -8, -104, 47, -1, -115, -89, -112, 88, 3, 0, -66, -99, 125, 52, 6, -2, -20, -123, 29, 108, 7, -53, -44, -125, 15, 58, -102, -115, -5, 11, -91, 80, -49, -30, 93, 99, 122, -101, -113, -8 ]
The opinion of the court was delivered by Mason, J.: Charles P. Warner was convicted upon a charge of statutory rape, and appeals. The com.plaining witness testified to this effect: She worked for the defendant in his office in the summer of 1913; their illicit relations began in July of that year; about a month later she ceased to work for him, but visited him at his office, their relations continuing; in the latter part of October he took her to another county in an automobile, putting up at a hotel and registering as man and wife; he then returned home, but later rejoined her at another place; they then lived together for some weeks. No effort was made to impeach or contradict this testimony, the defense being made wholly on the ground that the defendant was insane. Complaint is made regarding the instructions given and refused, bearing on the question of the defendant’s sanity. The court was asked to instruct that if the jury believed that the defendant was insane at times, but not continuously so, it devolved on the state to prove that he was not laboring under such insanity when he committed the acts for which he was prosecuted. The jury were told that*the question for them to determine was the condition of the defendant’s mind at the time of the alleged offense. This seems to cover the point sufficiently. The court was also asked to instruct that where habitual unsoundness of mind is once shown to exist, “either wholly or partially,” it is presumed to continue until the contrary is shown beyond a reasonable doubt. The instruction was given, with the omission of the words placed between quotation marks. The defendant also asked an instruction, which was refused, that a person may be sane upon some questions and insane upon others. Wie do not regard these rulings as materially prejudicial. The jury were correctly told that the vital question for their determination was whether at the time of the acts complained of the defendant knew of their nature and quality, and if he did, whether he knew they were, wrong. The charge is further criticized on the ground that it inferentially placed upon the defendant the burden of proving that he was insane. Considered as a whole we think it was not reasonably open to this construction. It included the statement that the jury might convict if the evidence “failed' to raise in their minds a reasonable doubt of the mental soundness of the defendant”; but it also contained this sentence: “It is not necessary for the defendant in this case to prove that he is insane, but if upon all the evidence introduced in this case there is a reasonable doubt in your mind as to whether the defendant was sane or insane at the time complained of in the information filed herein, then you must acquit.” (See The State v. Johnson, 92 Kan. 441, 140 Pac. 839.) The defendant offered, evidence of his good reputation previous to the acts complained of. . The state was permitted on cross-examination to inquire as to his subsequent reputation, and to elicit answers that it was not good. The rule seems well settled, upon sufficient reason, .that the inquiry should be limited to the period before the transaction under investigation. But we hold the error not to have been prejudicial in this.case, since the only real controversy was as to the defendant’s mental condition, and evidence that his reputaton was bad after his relations with the complaining witness began could not well have tended to negative his insanity. Objection is made to much of the state’s evidence regarding the defendant’s mental condition, on the ground that the witnesses were not sufficiently qualified. It appears that each of them had had sufficient opportunity of observing the conduct of the defendant to make his opinion of some value, and that no error was committed in this regard. The court held one of the defendant’s witnesses not to be sufficiently qualified to testify on this subject. The ruling may have been erroneous, but in view of the evidence that was admitted the omission of the testimony of this particular witness is not regarded as material. In the closing argument the county attorney intimated that in some parts of the country people had become disgusted with juries and had resorted to lynch law, and that a conviction should be had to demonstrate that in the county where the trial was had such recourse was unnecessary. The spectators present applauded the statement. The judge said that he was sorry the good people of the county had so far forgotten themselves as to intrude an expression of their sentiment, and cautioned the jury against being influenced by it. The defense argues that the jury must have been affected by the episode. The trial court thought otherwise, and we can not say that such was the necessary effect of the incident. We conclude that no reversible error was committed in the proceedings prior to the verdict. In support of a motion for a new trial, however, the defendant offered to prove that during the deliberations of the jury, and while a majority of its members were voting in favor of the defendant, some of them said they wondered why he had not taken the stand in his own behalf; and that others said they thought it better for him that he didn’t testify. The offer was rejected. The statute forbids the jury to consider the omission of the accused to go upon the witness stand. Whether in this case the prohibition had been violated was a question of fact to be investigated and determined by the trial court. Although the evidence offered, if admitted, might not have proved a violation of the statute, it was competent and material as bearing on that issue. The court decided the question without hearing, and necessarily without giving consideration to, this important testimony. We regard this as a sub stantial error, inasmuch as the defendant was entitled to a full investigation of the matter. In such circumstances the practice heretofore has been to set aside the verdict and order a new trial. That procedure, however, seems unnecessary and illogical. We have determined that no error was committed prior to the rendition of the verdict. We do not decide that any of the jurors were guilty of misconduct, but merely that the defendant has not had a full hearing upon the question whether or not such was the case. This error can be corrected by placing the matter before the district court in the same condition as when the ruling was made, so that it may be corrected, and further proceedings taken according to the result then reached. (See The State v. Tyree, 70 Kan. 203, 207, 78 Pac. 525.) The sentence will be set aside, and the cause remanded with directions for the court to investigate the question of the alleged misconduct of the jury, in the light of all available competent evidence, and pronounce judgment or grant a new trial according to the decision that shall be reached in this matter.	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The opinion of the court was delivered by Porter, J.: The plaintiff in each of these cases has filed an application for the allowance of damages, including the fees and expenses of attorneys. In July, 1913, when the cases were commenced, there was a hearing before the court upon an application for the allowance of an alternative writ of mandamus to compel the defendant officers of the city of Atchison to levy a tax for the payment of defaulted bonds issued by the city. The plaintiffs owned $55,000 of the bonds; the defendant officers had recognized the validity of the bonds but had failed and refused to make any levy for paying the same. After the court had made an order allowing the alternative writ, and on or about - September 30, 1913, as appears from the stipulations on file, the city of Atchison paid the plaintiffs the full amount due upon the defaulted bonds. By stipulations filed here the parties have agreed upon what would be a reasonable attorney’s fee in each of the cases, and also upon the amount actually expended by the plaintiff for the traveling expenses of its New York counsel in attending the hearing for the allowance of the alternative writ. The defendants object to the allowance of any damages on the ground that no final order or judgment was ever made by the court nor any peremptory writ issued, and that no tax was levied by the city to apply on the bonds. It is further insisted that plaintiffs are estopped to claim any damages for the reason that after the institution of these suits, and before any judgment of the court, the plaintiffs voluntarily surrendered the bonds to the city and accepted payment thereof without making any claim for damages, and without obtaining any order or judgment of this court. The defendants rely .upon the language of section 723 of the civil code, providing for the allowance of damages in proceedings of this kind, which reads : “If judgment be given for the plaintiff, he shall recover the damages which he shall have sustained, to be ascertained by the court or jury, or by referees, as in a civil action, and costs; and a peremptory mandamus shall also be granted to him without delay.” It is contended that unless there has been a judgment directing the issuance of a peremptory writ of mandamus, no allowance of damages is proper; that the question of damages in mandamus is merely incidental and must be predicated upon a judgment, and it is urged that because the plaintiffs are not now asking and have not taken judgment for the relief sought in the original information, the court has no authority to allow damages. In this connection it is urged that it was to the financial advantage of the plaintiffs to surrender the bonds and to receive the entire amount due thereon rather than to take an order of the court compelling the levy of a tax to pay the bonds, for the reason that the levy necessarily would have been extended by the court over a term of years, as the court in making the provisional order indicated it would do. It is said that if the defendants had made no settlement with plaintiffs, and judgment had been entered by the court, as prayed for, plaintiffs would not have received any part of the money until after the payment of the taxes of 1913, and would have been compelled to accept the payment of its debt in installments with interest at only four per cent, according to the terms of the bonds; but since they were paid in full September 30, 1913, sooner than they would possibly have been paid under any judgment of the court, they ought not to be allowed any damages. The contention that the court is without authority to allow damages, except where a peremptory writ' is issued upon final judgment, is answered by the case of Nolte v. Telephone Co., 86 Kan. 770, 121 Pac. 1111. That was a mandamus proceeding to compel a telephone company to install service in the home of the plaintiff, the company having refused to do so without legal excuse. After the application had been filed and the cause noticed for hearing, the defendant company, on the day before the matter was to be heard, performed its duty and reinstated the telephone, and continued thereafter to render satisfactory service. The district court where thé proceeding was instituted allowed the plaintiff damages, and on appeal to this court the allowance was sustained. It was held that under the provision of the statute quoted there is the same authority to ascertain and render judgment for the damages sustained as there is for assessing the costs against the defendant. A stronger case for the allowance of damages is presented here than in the case cited, because there was a hearing in this court and an order and judgment rendered before the bonds were paid. The institution of the mandamus proceedings was necessary to protect the rights of the plaintiffs because of the failure of the defendants to perform their plain duty. The same reason exists for the allowance of damages as if the action had been resisted and a final judgment rendered ordering a peremptory writ. The statute does not in terms provide that damages can be allowed only where a peremptory writ issues. In addition to providing that the plaintiff shall recover his damages it provides that he shall “also” be granted a peremptory writ, and without delay. It often happens that the defendant complies with the alternative writ, and a peremptory one, having no office to perform, is not issued. It seems unreasonable to construe the statute to mean that where the defendant has complied with the alternative order and the plaintiff waives the issuance of the peremptory mandamus, he waives the right to recover the damages sustained. Before any action was brought the city offered the plaintiffs an extension of new bonds bearing the same rate of interest as the defaulted bonds, which offer plaintiffs refused. Their subsequent acceptance of payment of the bonds without demanding damages , did not estop them from claiming damages in these actions' any more than it would estop them from claiming their costs. We think the application must be allowed, and as' there is no dispute with respect to the reasonableness of the fees asked or the amount of the expenses incurred, the order will be that damages are allowed in the amounts agreed upon in the stipulations.	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The opinion of the court was delivered by Johnston, C. J.: Ira Amos Maliows brought an action against Margaret E. Mallows to recover possession of a tract of land in Doniphan county, and upon her motion Frank J. Mallows and Oscar B. Mallows, who claimed an interest in the land, were made defendants. She answered that she was the owner and was in possession of the land, and asked that her title be quieted as against the claims of any of them and that they be'adjudged to be barred of any interest in the land. From the conceded facts it appears that Ruth Y. Mallows, who owned one hundred acres of land, died testate on December 14, 1905, leaving as her only heirs at law her sons, French J. and Ira Amos Mallows. Only the north half of the tract owned by her is involved in this action. In the will of Ruth Y. Mallows she provided that the north half of the farm, fifty acres, should go to her son, French J. Mallows, “To have and to hold the same his natural lifetime, then if said French J. Mallows (at this time a single man) should marry again, it being his third marriage, then his third wife, and children by his third wife, shall have said fifty acres of land described in this will, but if said French J. Mallows should die leaving no wife and children by a third wife, then I devise and will that said land described above shall go to my son Ira Amos Mallows.” After the death of Ruth Y. Mallows and the probate of the will the two sons of the testatrix entered into possession of the land. It appears that French J. Mallows did marry a third wife, who died during his lifetime leaving no children. After that time he was twice married, and when he died he left as his heirs the appellant, Margaret E. Mallows, his fifth wife, and his two sons, Frank J. and Oscar B. Mallows, children by his second wife. As a result of a trial the court found that Ira Amos Mallows is the owner of an undivided one-half interest of the fifty-acre tract in question, that Margaret E. Mallows, the widow of French J. Mallows, is the owner of an undivided one-fourth of the tract, and that Frank J. Mallows and Oscar B. Mallows are each entited to an undivided one-eighth interest in the tract. In the will the testatrix provided, as we have seen, that French J. Mallows should have a life estate in the fifty-acre tract, and that if he married again, having been married twice before at the time the will was made, and should have children by the third wife, the property would go to her and her children, but if he died leaving no wife or children by a third wife it should go to his brother, Ira Amos Mallows. As the court interpreted this provision of the will Ira Amos Mallows was not entitled to the remainder although the third wife of French J. Mallows'had died without children. Some argument could have been advanced for the contention that the wife mentioned in the clause, “leaving no wife and children by a third wife,” was the third wife, and that, therefore, the remainder became the property of Ira Amos Mallows. It was decided, however, that as French J. Mallows died leaving no third wife nor children by a third wife, but did die leaving a fifth wife, that provision of the will was unenforceable. The view taken was that French J. Mallows was given and had enjoyed a life estate in the land, but as he left a wife at the. time of his death the remainder could not go to' his brother but that it became a part of the estate of Ruth Y. Mallows, his mother, and descended- to her heirs at law. Margaret E. Mallows has no reason to complain of. this interpretation and decision and none of the other parties are objecting to it. She does, however, complain of the overruling of her motion for a new trial which was filed nearly three months after the judgment fixing the rights of the parties in the land was rendered. In appellant’s motion she alleged, among other things, that she'had been sick and did not fully consult or advise with her attorney as to the case, either before or at the time of the trial, and that concessions had been made by him without her knowledge. She also alleged that about February 22, 1913, there was born to her an infant child that died on the day it was born, and that her attorney was never informed of this fact. In support of her motion she testified that she employed her attorney to represent her in the action, and he had been serving in that capacity before this action was instituted ; that soon after the bringing of the suit she had become ill and went to St. Joseph, Mo., for medical treatment; that she came to Troy on April 30, 1913, the day on which the case was set, to attend the trial, but that it was not reached that day, and that she came back the next day but did not arrive until the case had been tried and determined. She states that no motion for a new trial was made by her attorney, although she had asked him to do all he could to win her case, and that shortly afterwards she employed another attorney at St. Joseph, who came to Troy and made an investigation of the case, but did not file a motion at that time nor until July 26,1913. The attorney employed shortly after the trial states that he did not take earlier action because he did not know whether the attorney first employed was still acting for the appellant, and that he saw him early in June, 1913, but did not talk with him then nor learn that he was no longer in the case until later in the month. The district judge, who knew the parties and their counsel, as well as many circumstances which are unknown to this court and which necessarily affected and guided his discretion, has refused to reopen the case. No fraud is charged against the attorney, and there is no reason to doubt his good fáith in the matter. While appellant says that she had no opportunity to advise her attorney of the facts, she could have done so when the employment was made, and later by telephone or letter if she had been unable to visit him. In her answer she bases her claim to the whole tract of land on the provisions of the will, and not because of an inheritance from a child which is alleged to have been born the preceding February. It is not claimed that she ever mentioned the birth of a child to her attorney, although she had an opportunity to do so when she employed him and later when she came to Troy to attend the trial. Even if the motion for a new trial had been filed in time, it would have been an appeal to the discretion of the trial court; but it was not filed within the time, and the long period which intervened between the judgment and the application for a new trial, and between the time when appellant and her second attorney had learned the full scope of the judgment and the application, shows that the required diligence was not exercised by appellant. The appellees are not responsible in any way for the mistakes of the appellant or her attorney, if any were made, and the general rule is that neither misapprehension nor mistake of a party or his attorney that is not occasioned by the adverse party affords a ground for the granting of a new trial. (Holderman v. Jones, 52 Kan. 743, 34 Pac. 352.) It is also a general rule that a court will not grant a new trial for insufficient reasons merely to give a party an opportunity to shift his ground of action or defense. If a case has been tried upon one theory it is too late to mend his hold and advance another theory which might have been but was not presented at the trial. (29 Cyc. 1008.) As has often been declared, a trial court is vested with a large discretion in the granting of new trials, and in this case it can not be held that the applicant was entitled to a new trial as a matter of law, nor can it be held that the court abused its discretion in refusing the application. There is nothing substantial in the objections made to the proceedings subsequent to the judgment setting off the share to which each party was adjudged to be entitled. The judgment of the district court will be affirmed.	[ -16, 110, -67, -35, 58, -16, 42, 24, 90, -95, -28, -45, 107, -38, 61, 97, -77, 77, 65, 106, -26, -73, 22, -63, 18, -69, -79, -51, -79, 88, -25, -41, 72, 52, 10, 21, 103, 64, 69, 22, -116, 69, 41, 73, -36, 82, 58, 123, 84, 14, 53, -114, -13, 46, 29, -61, 40, 46, 111, -85, 1, 56, 14, -122, -35, 23, 48, 2, -98, -128, 72, 10, -104, 81, -120, -32, 115, -92, -58, 117, 27, -7, 8, 54, 103, 1, -3, -49, -12, -102, 14, 118, -67, -89, 12, 88, 114, -64, -74, -107, 92, 64, 15, 114, 126, -35, 28, 104, 0, -49, -42, 33, 15, -72, -108, 2, -5, -89, 48, 113, -55, -18, 85, 67, 112, 27, -122, -108 ]
The opinion of the court was delivered by Johnston, C. J.: L. D. Arnold, the appellant, brought this action against the appellees, The C. Hoffman & Son Milling Company, C. Hoffman, C. B. Hoffman, The Hoffman Elevator Company, and the Chicago, Rock Island & Pacific Railway Company, to recover damages resulting from an overflow of the Smoky Hill river and the destruction of his crops, caused, as it was alleged, by the joint action and wrong of the appellees. The case has been here before on appeal. (Arnold v. Milling Co., 86 Kan. 12, 119 Pac. 373.) Appellant'alleged that he owned land on the Smoky Hill river; that the appellees, The C. Hoffman & Son Milling Company, C. Hoffman, C. B. Hoffman and the Hoffman Elevator Company, had unlawfully obstructed the flow of water by the maintenance of a dam at a height considerably above that to which it was first built in 1869 or 1870 by the appellee, C. Hoffman, and which was allowed by law; that the appellee, The Chicago, Rock Island & Pacific Railway Company, in building a bridge across the river at a point between the dam and appellant’s farm had dumped one hundred carloads of rock across the river where its bridge was built and had constructed an embankment which operated to further dam the river; and that by reason of these obstructions the appellees, “operating jointly and contemporaneously,” had, on or about June 10, 1908, unlawfully thrown the water back upon liis farm and caused the destruction of his crops. Appellant asked $3000 actual damages and $1000 punitive damages. After evidence had been introduced by appellant in support of his allegations the appellees separately demurred to his evidence. The demurrers of C. Hoffman, C. B. Hoffman and The Hoffman Elevator Company were sustained and those of the C. Hoffman & Son Milling Company and The Chicago, Rock Island & Pacific Railway Company were overruled. Appellant was then advised by the court that he should elect to proceed either against the milling company or the railway company separately on the ground that there was no proof of “any joint and concurrent action” between them, but the appellant refused to elect, and the court, upon a reconsideration of the demurrer, sustained it also as to the milling company. These rulings appellant brings here for review, and the principal question appears to be whether or not the court rightly ruled on the demurrers interposed by appellees. There appears to be no testimony in the record tending to show that in 1908 C. B. Hoffman or the Hoffman. Elevator Company maintained, controlled or had any connection with the dam which, it is alleged, resulted in throwing the water back on appellant’s land, and it is clear that as to them the demurrers to the evidence were rightly sustained. The C. Hoffman & Son Milling Company owned and held possession of the dam at the time of the flood of 1908,- and it is contended that testimony was offered tending to show that the maintenance of the dam by this company contributed to the injury suffered by the appellant. On the first appeal it was held that: “Where two or more parties, acting jointly, wrong or injure another they are jointly and severally liable for the consequences, and the injured party may at his option sue in one action one or all who contributed to the injury.” (Arnold v. Milling Co., 86 Kan. 12, syl. ¶ 1,119 Pac. 373.) The ruling therein made is challenged in this proceeding by appellee milling company as being out of line with the authorities, but we do not feel justified in reopening the discussion of a question so long settled in this state or in departing from the doctrine announced in cases previously decided. In two recent cases the ruling has been approved and followed. (Luengene v. Power Co., 86 Kan. 866, 122 Pac. 1032; McDaniel v. City of Cherryvale, 91 Kan. 40, 136 Pac. 899.) Under the rule which obtains here if the negligent action of the railway company and the milling company, whether acting jointly or independently, operated concurrently and contemporaneously to the injury of the appellant each is answerable for all of the resulting damages and a joint or separate action to recover for the injury may be maintained against them. When the case was first here the question was based on the allegations of the petition and it was there said that: “If it turns out that there was no concurring negligence, or that the act of one did not proximately contribute to the injury, there is no joint liability.” (Arnold v. Milling Co., 86 Kan. 12,14, 119 Pac. 373.) It follows that if it appears that the action of the milling company did not contribute to the injury of which the appellant complains and was not the proximate cause of the loss the ruling of the court in sustaining the demurrer to his evidence must be sustained. The dam of the milling company was a high one and appears to have been raised from time to time so as greatly to obstruct the flow of the stream, and at times has operated to throw the water back on the adjoining lands above the dam. The fact, however, that the dam may have been built to an unauthorized height or that it may have caused an overflow on the lands of some riparian owners will, not avail the appellant in his action to recover damages against the milling company unless it contributed to the injury for which a recovery is sought. Appellant is asking for the particular damages which resulted from the overflow in the flood of June, 1908, including the loss of his crops, and not for the permanent injury sustained, and the question therefore is whether the obstruction of the river by the milling company has contributed to any extent to throw the water back upon his land. His farm is about one and three-fourths miles above the dam, while the bridge and the obstruction made by the railway company is about a mile above the dam and is between the dam and appellant’s farm. In the testimony produced by ap pellant it was shown that the piers of the railway bridge had been placed in the river and that many carloads of rock had been thrown across the river near the bridge, and that embankments had also been made by the railway company at each end of the bridge, and that all together made a dam which obstructed the flow of the stream and backed the waters upon the lands adjoining the river above the bridge. The court ruled that there was evidence tending to support a cause of action against the railway company, but decided that the detention of the water by the dam of the milling company, one and three-fourths miles below the farm, did not contribute towards the flooding of appellant’s land. This ruling was based largely upon his own testimony, by which he made it appear that the water above the obstruction at the railway bridge was from three to four and one-half feet higher than it was below that bridge, while the water thrown back upon his land was only about two feet deep. He testified that when the water was running over the dam during the flood he observed that it was higher in the river opposite his farm, but the fact that the water was so high as to run over the dam did not mean that it raised the river out of its banks opposite appellant’s farm. On the contrary, he testified that when the water was at the top of the dam the river lacked from seven to ten feet of being full opposite his place and that it required a rise of about seven feet to take the water out of its banks at his place. The fact that the water was from three to four feet higher above than below the bridge, and some of the witnesses placed it still higher, makes it clear that it was the obstruction at the bridge rather than the dam which caused the overflow of appellant’s land. When a break was made in the obstruction at the bridge there was a perceptible lowering of the water, and the appellant had demonstrated by his proof that if the obstruction had been removed and the water permitted to flow on unimpeded to and over the dam his land would not have been flooded. The detention of the water at the dam may have resulted in flooding other lands between the dam and the bridge; but since the water held back by the dam was about four feet lower than that above the railway obstruction, which was much lower than the water on appellant’s land was deep, it is self-evident that the overflow on appellant’s land was the result of the upper instead of the lower obstruction. There is nothing substantial in the contention that the milling company’s demurrer to the evidence was not entitled to consideration because some evidence in behalf of appellees had been introduced before the demurrer was filed. It appears that after a witness for the appellant had been examined counsel for appellees stated that he desired to ask the witness a few questions on another subject and that as the witness was aged and did not wish to remain at the courthouse permission was asked to interrogate him out of order and save bringing him back at the peril of his health. With the consent of counsel for appellant this permission was given and a few questions upon a subject that had little bearing upon the case before us were asked, but this departure from the regular order did not prevent the court from considering and deciding whether the evidence of appellant was sufficient to prove a cause of action against the milling company. A number of objections were made to rulings upon the admission of testimony but none of them are deemed to have been substantial errors or to have materially affected the result as between the appellant and the milling company. The judgment of the district court will be affirmed.	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The opinion of the court was delivered by PORTER, J.: This is an appeal from a ruling of the district court refusing to confirm a sale of real estate. The appellant was plaintiff in an action against Kennedy to recover damages. When the action was commenced he caused an attachment to be levied upon certain real estate as the property of Kennedy. Judgment was taken by default; the attachment was sustained and the property ordered sold to satisfy the judgment. Thereafter, on March 5, 1913, an order of sale of the attached property was issued under which the sheriff advertised and sold the same. The sheriff made a return showing his proceedings under the order of sale, and the appellant filed a motion to have the sale confirmed. Before a ruling was had on this motion Annie Griswold, the appellee, filed a motion to set aside the sale, alleging that the attachment proceedings and the sale were irregular and void, .and that the defendant Kennedy had no title or interest in the real estate. Both motions came on for hearing at the same time. The journal entry recites that the attorneys for the appellee stated in open court that she had no proof to offer in support of the statements contained in her motion, and thereupon by her consent the motion to set aside the sale was by the court stricken from the docket. At the same time the court overruled appellant’s motion to confirm the sale. In the brief of Annie Griswold, appellee, it is stated that on the hearing of the motion to confirm her counsel called the attention of the court to the fact that the sale purported to be a sale of the whole title instead of the interest of the judgment creditor, and that thereupon the court examined the papers and stated that the proceedings were not in accordance with the court’s order, which was to sell the interest of Kennedy, and that thereupon the court refused to confirm the sale. None of the facts relied upon by the appellee is shown in the abstract. In her brief it is suggested that it was the duty of the appellant to bring up the complete record and satisfy this court that there was no possible ground for the action of the court in refusing to confirm. On the contrary, if the abstract prepared by the appellant was not complete, or if it failed to set out portions of the record upon which the appellee desired to rely, it devolved upon her to prepare a counter-abstract. As the case is presented to us, it shows the refusal of the court to confirm a sale which the record, including the order of sale and the return of the sheriff, shows to have been regular in all respects, and with no showing of any grounds authorizing interference by a court upon equitable grounds. As said in Bank v. Murray, 84 Kan. 524, 114 Pac. 847: “Prior to 1893 the statute required confirmation when the sale had in all respects been made ‘in conformity to the provisions of this article.’ (Gen. Stat. 1868, ch. 80, § 458, Gen. Stat. 1889, § 4556.) But the legislature of 1893 amended this section and provided that the sale shall be confirmed if the court ‘finds the proceedings regular and in conformity with law and equity.’ (Laws 1893, ch. 109, § 26, Code 1909, § 500.)” (p. 528.) The court has a discretion whether to order the sale confirmed or not, but the discretion must be exercised upon equitable principles, and not arbitrarily. (Bank v. Murray, supra.) If there was any mistake in the entry of the original judgment the court has power at any time to order it corrected to speak the truth; but no reason appears for refusing to confirm the sale. Counsel for appellant practically concede that Kennedy has only an equitable interest in the real estate attached; but it is said that at the time the suit was brought and the attachment levied they proceeded upon the assumption that he owned the absolute title. It is true, as they suggest, that appellant could acquire by the attachment only a lien upon whatever Kennedy's interest in the property was, and could sell nothing more than his interest in the property. Reversed with directions to confirm the sale.	[ -13, 126, -40, 45, 26, 96, 42, -8, 96, -95, 38, 83, -83, 66, 20, 37, -11, 109, 85, 105, -57, -77, 87, -118, -14, -45, -47, -35, 53, -20, -28, 118, 76, 32, 74, 21, 102, -118, -51, 92, -114, -121, 24, -51, -39, 74, 48, 59, 28, 79, 97, -18, -29, 44, 24, 67, -23, 41, -5, 49, -48, -88, -85, -115, 123, 6, -77, 52, -34, -123, -56, -84, -104, 53, 0, -23, 49, -74, -106, 52, 1, -117, 40, 38, 106, 19, 13, -17, -32, -104, 47, 30, -121, -90, 50, 88, 73, 105, -74, -99, 125, 16, 39, 126, -30, -115, 26, 108, 14, -85, -106, -93, 11, 126, -101, 10, -49, -75, 48, 112, -51, 32, 92, 114, 19, -101, -114, -75 ]
The opinion of the court was delivered by BURCH, j. : The action is one commenced by a taxpayer of the city of Pratt, a city of the second class having a commission form of government, to enjoin the board of commissioners from issuing and selling bonds, authorized at an election held for the purpose, to provide funds for constructing and equipping a municipal light plant. A demurrer was sustained to the petition, and the plaintiff appeals. The petition charges, in substance, that in the year 1913 the board of commissioners, then composed of J. K. Hupp, L. D. Hess, and O. H. Boch, violated the statute which reads as follows: “Any member of the board of commissioners who shall vote for or in any manner aid or promote the passage or adoption of any ordinance, legislation or other act of said board creating an indebtedness or drawing any order or warrant on the treasury in payment of any indebtedness which exceeds the amount of funds actually on hand in the treasury at the time for such purpose, or where the levy has not actually been made and in the process of collection or where provision has been made for the issuance of bonds, shall thereby be guilty of malfeasance in office, and such action shall, ipso facto, vacate his office and he shall be liable on his official bond for such malfeasance.” (Laws 1911, ch. Ill, § 1.) At the election in 1914 R. Calbeck was chosen to succeed Bo'ch. Hupp then resigned. Calbeck and Hess filled the vacancy by the appointment of W. O. Humphries. The board of commissioners so constituted called the election. It is claimed that Hess was disqualified to join in the appointment of Humphries, with the result that both Hess and Humphries were disqualified to join in calling the election. In this state the de facto doctrine, as applied to the conduct of persons acting as public officials, is recognized to the fullest extent. (The State v. Williams, 61 Kan. 739, 60 Pac. 1050; In re Corum, 62 Kan. 271, 62 Pac. 661; Railway Co. v. Preston, 63 Kan. 819, 66 Pac. 1050; The State v. Miller, 71 Kan. 491, 80 Pac. 947; Briggs v. Voss, 73 Kan. 418, 85 Pac. 571; Mikesell v. Wilson County, 82 Kan. 502, 505, 108 Pac. 829; and authorities cited in these opinions.) Hess holds under his original title and under circumstances calculated to induce the public to believe that he is still a member of the board of commissioners. Humphries holds by virtue of a known appointment, apparently valid and accepted by the public as valid. Being in possession of the offices and ostensibly exercising their functions lawfully, with the knowledge and acquiescence of the people of the city of Pratt and of the law officers of the state, they will be deemed to be what they appear to be, namely, rightful incumbents. The forfeiture pronounced by the statute quoted is not more disqualifying than various forms of incapacity to act considered in the cases cited, and the plaintiff will not be permitted to frame an issue based upon such forfeiture in this collateral proceeding;. Complaint is made that the ordinance calling the election and the election proclamation did not state, for the information of the voters, how the bonds were to be paid, that is, by taxation. The ordinance and proclamation contained all the enlightenment the statute requires, and the district court could not defeat the bonds because provisions which the legislature did not deem essential were not inserted. Further complaint is made because the bond election was carried through false representations by agitators as to the public plight resulting from the relations between the city and the Pratt Light & Ice Company, a private corporation then supplying the city and its inhabitants with light. Unscrupulous campaign methods must be met in some other way than by an action to enjoin issuance and sale of the bonds. The plaintiff insists that the city can not issue bonds to construct and equip an electric light plant until it complies with section 81 of the public utilities act of 1911, which reads as follows: “No common carrier or public utility governed by the provisions of this act shall transact business in the state of Kansas until it shall have obtained a certificate from the Public Utilities Commission that public convenience , will be promoted by the transaction of said business and permitting said applicants to transact the business of a common carrier or public utility in this state. This section shall not apply to any common carrier or public utility governed by the provisions of this act now transacting business in this state.” (Laws 1911, ch. 238, § 31.) Without determining what is meant by the phrase, “transact business in this state,” it is sufficient to say that the public utilities act does not apply to the enterprise contemplated by the city of Pratt. “Provided that this act shall not refer to or include mutual telephone companies. That mutual telephone companies, for the purposes of this act, shall be understood to mean any cooperative telephone company operating only for the mutual benefit of its subscribers without profit other than in the service received. Nothing in this act shall apply to any public utility in this state owned and operated by any municipality.” (Laws 1911, ch. 238, § 3.) The plaintiff desires the court to impose upon this statute a limitation, neither expressed by or implied from its terms, restricting its application to public utilities owned and operated by any municipality at the time the law took effect. The argument is that competition may be as destructive to private and public welfare as monopoly, and that the judgment and permission of an unbiased administrative board are just as essential when a municipal corporation is about to undertake the construction and operation of a fight plant as when a private corporation desires to do so. Conceding this argument to be economically sound, it should be addressed to the legislature which indisputably disregarded it by the plain and unambiguous exclusion from the definition of “public utilities” of public utilities owned and operated by municipalities. To strain the definition to include municipally owned utilities brought into being subsequent to the enactment of the statute would be to. amend the law and not to interpret it. In 1905 the city granted to the Pratt Light & Ice Company a franchise to construct and operate an electric light plant in the city for the purpose of supplying the city and its inhabitants with electric current for a period of twenty years. In June, 1913, the board of commissioners undertook by ordinance to change this franchise and to partially supplant it with a new one. Upon a referendum to the electors of the city the ordinance failed to receive a majority of the votes cast and consequently failed to become operative. (Gen. Stat. 1909', § 1504.) It is claimed that the city is bound by the ordinance of .1918, in which the Pratt Light & Ice Company aquiesced, notwithstanding the referendum, the argument being that the sole remedy, if the ordinance were undesirable, was by complaint to the public utilities commission by ten or more taxpayers of the city in accordance with section 33 of the public utilities act. The public utilities act does not in terms amend or repeal the commission government act. There is no inconsistency between the two, and hence no basis upon which to rest an implied repeal. On the other hand, the clear indications are that the public utilities act was designed to be cumulative and supplemental to the earlier one. Under the commission government act electors, who need not be taxpayers, have ten days after the passage of an ordinance in which to protest against it and in this way to require a reconsideration of the ordinance by the board of commissioners, and if it be not entirely repealed to require its submission to a vote of the people for acceptance or rejection. Such a protest raises the question whether or not there shall be an ordinance at all. If, however, no protest be filed within ten days, 'taxpayers have five days more, or fifteen days from the passage of the ordinance, in which to complain to the public utilities commission and thereby secure changes in particular features, or in case of utter illegality, unreasonableness, or antagonism to the public welfare, to have the entire ordinance set aside. There being no uncertainty in the language employed, no conflict or contradiction in terms, no resulting incongruity or absurdity, and no resulting evil or injustice, the conclusion must be that the legislature intended both acts to stand as the expression of its will. In view of what has just been said, arguments for the relief which the plaintiff seeks depending upon the present existence of the ordinance of 1913 need not be examined. There is no claim that the city limited or exhausted its power to make further provision for lighting its streets and public places and supplying its inhabitants with light by anything contained in the. franchise' granted to the Pratt Light & Ice Company in 1905, and no foundation for such a claim is disclosed by the record. There is, therefore, no constitutional objection to the exercise by the city of its statutory authority to construct and operate an electric light plant of its own for the purposes stated. Whatever obligation the city may now be under to take and pay for electric current from the light company remains unimpaired. The obligation of a contract consists in its binding force according to the standards of law in existence when it was made (Cooley’s Constitutional Limitations, 7th ed., p. 403), and the building of a light plant of its own by the city does not affect to diminish any legal duty which it may owe the private company. The breach of a binding contract and the violation of the obligation of a contract are distinct things. It will not be assumed in advance that the plaintiff will default in the observance of its contracts. Should it do so the aggrieved party, not this plaintiff, will have its remedy. Neither will it be assumed that the city will exercise its power to fix the rates and regulate the service of the private company oppressively or unjustly. If it should do so the private company has its ■ remedy by complaint to the public utilities commission. The wisdom of the city’s course is not open to judicial inquiry, and the law leaves the private company to meet fair competition on the part of the city as it would the competition of another private company which might lawfully secure a franchise and authority to transact business. The judgment of the district court is affirmed.	[ 52, -18, -8, -50, 74, -64, 20, -126, 90, -79, -91, 83, -23, 114, 4, 61, -5, 125, 113, 73, -60, -78, 87, -61, -42, -13, -99, -57, -7, 75, -16, 109, 72, 48, 74, -11, -122, 70, 71, 92, -114, -126, 9, 76, -39, -64, 52, 119, 48, -53, 81, 58, -13, 62, 16, -29, -23, 44, -3, -71, -128, -69, -72, -123, 109, 22, 19, -121, -104, -121, 96, 46, -72, 17, -22, -8, 115, -90, 6, -9, 77, 41, 12, 102, 102, 1, -75, -25, -88, -24, 30, -105, 29, -26, -74, 89, 2, -114, -74, -97, 101, 18, 7, 126, -29, -123, -43, 108, 4, -114, -12, -77, 30, 52, -102, 67, -41, -94, 52, 97, -52, 118, 92, 7, 18, 27, -49, -60 ]
The opinion of the court was delivered by Smith, J.: Fielder E. Moore and his wife, Emily C. Moore, on November 22, 1905, executed a deed to their son, W. W. Moore, for a farm of one hundred five and one-half acres in Cowley county, and at the same time received from the son and his wife a contract which reads as follows: “Atlanta, Kan., Nov. 22, 1905. “For and in consideration of a deed to One Hundred Five and 50-100 acres Land in Section Four, Township Thirty-one, Range Six East, this day deeded to us by our par'ents, Fielder E. Moore and Emily C. Moore, said deed being placed in escrow in the Citizens State Bank, Atlanta, Kans., to be delivered to us after their death. “We do hereby agree to pay to them or either of them so long as they m'ay live One Hundred Dollars per annum, and to feed clothe and maintain them in such manner as is- proper and becoming from son to parents during their lifetime. William W. Moore, ‘ Mary F. Moore." The deed was deposited in escrow in the Citizens State Bank of Atlanta pursuant to the contract. On August 31, 1911, Fielder E. Moore, his wife having theretofore died, began in the district court of Cowley county an action against W. W. Moore and wife, and against the, Citizens State Bank of Atlanta, alleging that the deed was void, first, for the reason that the only provision for its delivery was after the death of the plaintiff; second, that the defendants. W. W. Moore and wife had failed and refused to pay him $100 per annum and had failed to furnish him a home and clothing and to maintain him as in the contract provided; further alleging that he had no money to care for himself, and that the defendants, his son and wife, neglected and refused to provide for him in sickness from which he had suffered; and praying that the defendant bank be required to produce the deed in court, and that the court decree the same to be null and void; and that the written contract be declared null and void because of the failure of the defendants to comply therewith. For a second cause, of action the plaintiff alleged that he was the legal and equitable owner of the real estate and that W. W. Moore and wife wrongfully refused possession thereof to the plaintiff; also, that the defendant bank is in collusion with its codefendants in withholding possession of the real estate, and prays for a writ of ouster to put him in possession thereof. For a third cause of action it is alleged that the rental value of the real estate is $150 per year, and that by the time the case can be heard the defendants will have had possession for. six years, and demands judgment for $900. Before the trial of this action Fielder E. Moore also died, but before his death his deposition in the case was taken. At the time of the making of the deed and contract Fielder E. Moore executed his will, bequeathing his real ■estate to his son, W. W. Moore, and appointing an executor. When he commenced his action to set aside the deed and contract, he made another will revoking the former one and making other disposition of his property. The bringing of this action and his deposition taken therein indicate an intention on his part that the deed was to be placed, and was placed, in escrow as security for the performance of the contract on the part of his son, and that the delivery of the deed to the son was conditioned thereon. The contract does not recite any condition of the escrow except as to the time of the determination thereof. Read together, the deed and contract seem quite consistent with the idea that the purpose and intent of placing the deed in escrow was the sa'me on the part of the grantees as shown by the contract signed by the son and his wife. Sometime after the death of Fielder E. Moore, Martha R. Provence, Ida E. Elkins and Mary I. Mc-Clurg, having been substituted as plaintiffs in place of Fielder E. Moore, filed their amended petition therein. The substituted plaintiffs allege, and it is admitted, that they are the daughters of Fielder E. Moore, and that they and the defendant W. W. Moore are brother and sisters, and are the children and only living heirs of Fielder E. Moore and Emily C. Moore. In the former action no copy of the deed executed by Fielder E. Moore and wife and placed in escrow was set forth in the pleadings. In the amended petition of the substituted plaintiffs it is alleged that the deed contained the following provision: “Always provided, however, that said grantor shall retain the use and possession of said lands here conveyed during the lives of said grantors, and that an absolute title in fee shall not pass until their death, but that the same shall be as hereby expressly reserved.” This allegation was not controverted. The reservation of the title to and possession of the land during the lives of the grantors is inconsistent with the contention that the terms of the escrow amounted to a present delivery of the deed or a present conveyance of the land to the grantees. On the other hand, it indicated an intention on the part of the grantors, their living and expenses being provided for, to accumulate the payments and the rénts of the land, possibly for the benefit of their other heirs. No answer was filed to the amended petition of the substituted plaintiffs, but a former unverified general denial was considered as applying thereto. On the trial the jury was waived by all parties, and the case was tried to the court. Numerous witnesses testified on the trial as to the treatment of Fielder E. Moore by W. W. Moore and his wife during his lifetime, which evidence was somewhat conflicting. The deposition of Fielder E. Moore, taken as before mentioned, was read in evidence. There was certainly evidence in the deposition that W. W. Moore and wife did not pay to his father $100 per year annually, or in the aggregate, from' the time of making the deed and contract until the father’s death. There is also evidence tending to show that W. W. Moore and wife did not feed, clothe and maintain his parents during the remainder of their lives as is proper and becoming from son to parents. There was also evidence that W. W. Moore said he did not think he was under any obligation to buy clothes for his parents; that there was no contract to that effect. On the trial it was admitted that the real estate in question was then and is now worth $4000. At the close of the evidence of the substituted plaintiffs, W. W. Moore and wife filed a demurrer to plain tiffs’ evidence on the ground that such evidence was insufficient to sustain any cause of action in favor of such plaintiffs against the defendants, and was insufficient to sustain a judgment setting aside the deed in controversy. The demurrer was sustained by the court and the action was dismissed. The plaintiffs excepted to this ruling and in due time filed their motion to set aside the findings and ruling and for a new trial, which motion was overruled, and the plaintiffs appeal. Many assignments of error are made and many other questions are discussed in the briefs. One of the contentions of the appellees is that the delivery of the deed by Fielder E. Moore to Mr. Pauly, as managing officer of the Citizens Bank of Atlanta, was not, in fact, an escrow, but was a delivery in prassenti to W. W. Moore. The intention of the parties has been held to be determinative of this question. The language used by Fielder E. Moore in delivering the deed to Mr. Pauly placed no condition upon the delivery of the deed other than that it was to be delivered to the son after the death of the father. Some of the circumstances, however, indicate that the father deposited the deed with the intention that it should stand as a security for the performance of the contract on the part of the son and his wife during his lifetime, and. upon performance of the contract to become effective as a conveyance after the death of the grantor. What constitutes a delivery of a deed to make it effective as a conveyance, either during the life or after the death of the grantor, is discussed in Stone v. French, 37 Kan. 145, 14 Pac. 530; Lawn v. Donavan, 2 Kan. App. 404, 42 Pac. 744; Wuester r. Folin, 60 Kan. 334, 56 Pac. 590, and other cases cited by appellant. The intention is a question of fact to be determined from the entire transaction. The writings should be construed by the court, and other evidence considered and weighed. So far as the bank is concerned, the language used at the time of the delivery of the deed to its officer probably determines its duty with reference thereto, but the contract and deed considered together with the extrinsic evidence tends to indicate that the son and his wife had the same understanding of the purpose of the delivery of the deed to the bank as had the father, and that the performance of the contract on their part was the condition of the conveyance. At least we can not conclude that a demurrer to the evidence should have been sustained. It appears from the evidence that the son and wife occupied the farm from the date of the deed, for about five years, until the father’s death, the mother having died before, and during the time there is no evidence that the son in any year paid as much as $100 except one year, and the testimony is that that money was used in paying off a mortgage on the farm. It would seem that $100 per year was very low rent, even if the payments should be regarded as rent, which they were not, as the deed reserved the use of the farm to the father during his lifetime. The evidence at least tends to show that the substituted plaintiffs are entitled to some right to relief, and the demurrer should have been overruled. All the facts should have been considered and the case determined by the preponderance thereof. The judgment is reversed, and a new trial is granted.	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The opinion of the court was delivered by MASON, J.: On February 21, 1913, Ernest F. Boger, the owner of a tract of land, executed a contract giving to Jacob W. Dundon the right, under certain conditions, to acquire title to it by the payment of $23,500, in addition to the sum of $1000, which he paid at the time. The taxing officers undertook to include the contract in the taxable property of Boger for the year 1913, assessing it at $23,500. Boger obtained an injunction against the collection of the tax, and the officers appeal. Oral testimony was introduced by the defendants for the purpose of showing that the contract was really one for the sale of the land. This evidence, however, tended to indicate what the witnesses regarded as the legal force of the writing which was executed, rather than to show that thé real purpose of the parties was not fully expressed. Especially in view of the decision reached by the trial court, the written contract must be treated as defining with exactness the rights of the signers. The precise question to be determined is whether it created a right in Boger upon which he was required to pay taxes for the year 1913. Under the contract no change of possession was to take place prior to March 1, 1914, and up to that time Boger was to pay the taxes on the land. Then, if Dundon saw fit to do so, he could, by paying $500, obtain possession, which he could hold for ten years by paying the taxes and by making semiannual payments equal to five and one-half per cent interest on $23,000, having the right to make part payments on that sum from time to time, and being entitled to a deed whenever he should have paid as much as $8000, giving a mortgage for the remainder, Dundon did not agree to make any payment whatever beyond the first $1000. The contract recited that time was of its essence, and that unless payments were made at the precise time specified Boger might resume possession and retain as rent whatever he had already received. A contract for the sale of land is not rendered nontaxable by the fact that the purchaser does not bind himself personally to complete the payments and take the property. Golden v. Munsinger, 91 Kan. 820, 139 Pac. 379, and cases there cited.) But the present contract differs materially from any of those in which that rule has been applied. The situation created by its execution was this: Dundon had given Boger one thousand dollars for an option to be exercised on March 1, 1914, to take possession of the land, if he so desired, with a view to its ultimate purchase upon the terms stated. Prior to that time Boger owned, occupied and used the land and paid the taxes. In these circumstances we think the trial court correctly held the contract not to be taxable in 1913. If at the time it was executed Dundon had paid an amount large enough practically to insure his purchase of the land an entirely different question would be presented. In that case it might possibly be said that the transaction amounted to a sale with a part payment on the purchase price, for its character would be determined by its essential nature rather than by the name given it by the parties. But a thousand dollars was not an unreasonable amount to pay for a mere option of a year’s duration to take the property at $23,500. The contract was assessed at $23,500, obviously upon the theory that the transaction was in effect a sale for $1000 in cash and deferred payments of that amount. For the reasons stated we think that theory not tenable. The question whether Boger is required to pay taxes upon the contract for the year 1914, in case Dundon has paid the $500 and taken possession of the property, is not involved and can not be decided. The judgment appealed from was rendered on June 2,1913. The journal entry includes , a recital that the contract is held not to be taxable, but this must be interpreted as relating only to the conditions then existing. The judgment is affirmed.	[ 114, -6, -48, 111, 58, 96, 42, -104, 88, -11, 36, 95, -55, 26, 20, 101, -77, 121, 80, 104, -58, -78, 70, 2, -48, -13, -47, -35, -71, 77, -76, 69, 76, 33, -54, -107, -26, -125, -63, 24, 14, 4, -120, 76, -39, 64, 48, 125, 66, 75, 81, -54, -13, 46, 29, -53, 105, 44, 91, 33, -15, -72, -69, -115, 127, 15, -111, 4, -36, 71, -24, -116, -112, 61, 9, -24, 119, 38, -42, -12, 13, -71, 41, 98, 98, 3, 45, -3, -8, -104, 46, -9, -115, -89, 20, 88, -126, 73, -66, -97, 124, 20, 102, 118, -26, -123, 29, 109, 31, -113, -42, -125, 15, -2, -126, 1, -1, 3, 49, 112, -49, 34, 92, 71, 114, -101, -113, -35 ]
The opinion of the court was delivered by Larson, J.: Lyle Craig Sanders appeals his jury convictions and sentences from his second trial for first-degree murder (K.S.A. 1992 Supp. 21-3401) and an aggravated weapons violation (K.S.A. 21-4202 [Ensley 1988]). We reversed Sanders’ prior convictions on these charges stemming from the 1993 killing of Latonya Edmond in State v. Sanders, 258 Kan. 409, 904 P.2d 951 (1995), on the ground the trial court erred in failing to instruct on the lesser included charge of second-degree murder. In this appeal, Sanders raises five issues: (1) Did the trial court abuse its discretion in refusing to allow Sanders to cross-examine the detective who interviewed him regarding the detective’s resignation from the police force and successful diversion of a theft charge? (2) Did the trial court err in refusing to grant a mistrial after a State witness made an unsolicited comment regarding Sanders’ assertion of his right to silence during his police interrogation? (3) Did the trial court abuse its discretion in finding Sanders had failed to prove purposeful discrimination on the part of the State in the use of its peremptory strikes during jury selection? (4) Was the imposition of three consecutive life sentences pursuant to the Habitual Criminal Act an illegal sentence? (5) Was there sufficient evidence for the jury to convict Sanders of the aggravated weapons violation? The issues to be decided in this appeal do not necessitate a recitation of all the facts, which are substantially set forth in 258 Kan. at 410-13. Additional facts will be referred to as necessary during our discussion of the issues. Use of diversion agreement for impeachment At trial, the State moved in limine to prevent Sanders from questioning Wichita police detective Randy Lawson about his resignation from the police force and his successful diversion of a theft charge. The court ruled a diversion was not a conviction and thus was not proper impeachment and prohibited Sanders from inquiring as to why Lawson no longer worked for the Wichita Police Department. In raising this issue, Sanders first emphasizes that the credibility of Lawson was crucial to the State’s case. Lawson was the detective in charge of Edmond’s murder investigation and had testified that Sanders told him during an interrogation that he had gone to Edmond’s house around the time of the murder. Insofar as the alleged error is the ruling on the State’s motion in limine, we apply the abuse of discretion standard of review. State v. Bornholdt, 261 Kan. 644, 659, 932 P.2d 964 (1997). Further, we have said the admission or exclusion of evidence, subject to exclusionary rules, is within the trial court’s discretion. State v. Baacke, 261 Kan. 422, 427, 932 P.2d 396 (1997). A trial court may only be said to have abused its discretion when its action is arbitrary, fanciful, or unreasonable, or when no reasonable person would adopt the view of the trial court. K.S.A. 60-420 provides: “Subject to K.S.A. 60-421 and 60-422, for the purpose of impairing or supporting the credibility of awitness, anypariy including the party calling the witness may examine the witness and introduce extrinsic evidence concerning any conduct by him or her and any other matter relevant upon the issues of credibility.” K.S.A. 60-421 limits evidence of a conviction of a crime in order to impeach a witness’ credibility. It reads, in relevant part: “Evidence of the conviction of a crime not involving dishonesty or false statement shall be inadmissible for the purpose of impairing his or her credibility.” Further limitations upon the admissibility of evidence affecting credibility are set forth in K.S.A. 60-422: “As affecting the credibility of a witness . . . (c) evidence of traits of his or her character other than honesty or veracity or their opposites, shall be inadmissible; (d) evidence of specific instances of his or her conduct relevant only as tending to prove a trait of his or her character, shall be inadmissible.” In the present case, Sanders acknowledged evidence of the diversion for theft was evidence of a prior bad act, not a conviction. He may not now assert on appeal that the diversion was a conviction of a crime involving dishonesty such that 60-421 allows its admission, especially as he presents absolutely no argument or authority that a diversion constitutes a conviction for purposes of 60-421. Nor has Sanders presented any credible argument that evidence of this bad act is admissible for any purpose other than to impeach Lawson’s character trait of veracity. As such, the evidence must be excluded pursuant to 60-422(d). The trial court did not err in ruling this evidence was inadmissible to impeach Lawson. Sanders further contends, however, that the trial court’s ruling unconstitutionally denied him his right to confront and cross-examine Lawson, prevented him from presenting his defense, and precluded him from receiving a fair trial. In Bomholdt, we noted: “ ‘The Confrontation Clause of the Sixth Amendment affords the accused the right to cross-examination. [Citation omitted.] A proper and important function of the right to cross-examination is the exposure of the witness’ motivation in testifying. [Citation omitted.] Generally, the right to cross-examine witnesses is subject to evidentiary rules, and the trial court has broad discretion in controlling the examination. [Citation omitted.] “ ‘Error in restriction of cross-examination is subject to a harmless error standard if the reviewing court can declare beyond a reasonable doubt that the error had little if any likelihood of changing the result of the trial. [Citation omitted.] However, there are certain circumstances in which the denial of effective cross- examination amounts to a constitutional error of such magnitude that no showing of prejudice is required for reversal. [Citation omitted.]’ ” 261 Kan. at 654 (quoting State v. Rinck, 256 Kan. 848, 854, 888 P.2d 845 [1995]). Sanders has failed to show the evidence he sought to cross-examine Lawson aboüt had any bearing upon Lawson s motivation for testifying in this case. Sanders simply wanted to use this evidence to attack Lawson’s credibility, thereby impeaching his testimony. Restricting such cross-examination in no way deprived Sanders of his constitutional right to confront witnesses. As no error, constitutional or otherwise, was committed in the exclusion of these questions pursuant to our rules of evidence, this issue fails. Right to remain silent Sanders next claims the State improperly admitted his invocation of his Fifth Amendment right to silence during the direct examination of Lawson. He argues this reference was so prejudicial as to amount to reversible error. On the day Edmond’s body was discovered, Sanders contacted the police and agreed to come to the station to talk. Sanders was Mirandized, told he was not in custody, and informed he was free to leave at any time. Lawson and another officer interviewed Sanders for a little over an hour. A break was taken, and shortly after the interview resumed Sanders stated, ‘Tm not saying nothing else until I get me a lawyer.” Prior to the first trial, Sanders moved to prohibit the State from questioning the officers regarding Sanders’ decision to terminate the interview and speak to an attorney. The court in the first trial granted this motion and instructed the State to direct Lawson not to volunteer that information. However, the court ruled that Lawson could describe Sanders’ demeanor while he was questioned. Rulings on the motions from the first trial were carried over to the second trial by agreement of the parties. The testimony to which Sanders objects occurred during Lawson’s description of his interview with Sanders. The transcript reads as follows: “Q. And why did you show him these items? “A. Because there was a spot that appeared on one of the clothing, the pants, that appeared to be a bloodstain. “Q. And when you saw that — let me ask you this: Did you tell him that? “A. Yeah. I took the clothing in to him and asked him, and I told him that this looked to me — looked to be a bloodstain and asked him what it was. "Q. What did he tell you? “A. His whole demeanor changed. He became upset, told us he didn’t want to talk to us anymore. “Q. Did he tell you anything about blood? “MR. LOEFFLER: Your Honor, I’m going to object. May we approach?” At the bench, the prosecutor immediately noted: “I directed Lawson not to say anything about terminating the interview. What I was getting at was what did he say about the blood on the clothes. It was my understanding he understood that.” Sanders moved for a mistrial based on the fact that Lawsoris statement was a clear violation of the motion in limine, as Lawson had mentioned Sanders’ invocation of his right against self-incrimination. The court denied Sanders’ motion, stating: ‘What he said was, he told us he didn’t want to talk to us anymore. That can be taken a number of ways. He just — he didn’t say, I want — I’m exercising my Fifth Amendment rights; I want a lawyer. He didn’t say anything like that. That’s not what Mr. Lawson said from the witness stand.” Sanders did not ask the court to strike the testimony or request a limiting instruction. We addressed an almost identical issue in State v. Rice, 261 Kan. 567, 591, 932 P.2d 981 (1997). In Rice, we set forth our standard of review: “The trial court may declare a mistrial when prejudicial conduct makes it impossible to proceed with the trial without injustice to the defendant. K.S.A. 22-3423(l)(c). The decision to declare a mistrial lies within the sound discretion of the trial court and will not be reversed absent a clear showing of abuse of that discretion.” 261 Kan. at 592. We have further held that in order to show the trial court abused its discretion in failing to grant a mistrial, the party seeking the mistrial has the burden of showing the party was substantially prejudiced by the error. State v. McClanahan, 259 Kan. 86, 92, 910 P.2d 193 (1996). In Rice, we held the trial court had not abused its discretion by refusing to grant a mistrial after a witness had improperly mentioned Rice’s invocation of his Fifth Amendment rights. As our authority, we relied on State v. Barncord, 240 Kan. 35, Syl. ¶ 5, 726 P.2d 1322 (1986), and State v. Mitchell, 220 Kan. 700, 703, 556 P.2d 874 (1976), which focused the inquiry upon whether a limiting instruction was given, the degree of prejudice, and whether the erroneous admission of evidence was of such a nature as to affect the outcome of the trial. Although possibly improper, Lawson merely remarked that Sanders had said he did not want to talk to them anymore. As the trial court pointed out, Lawson did not state that Sanders pled the Fifth Amendment or asked to speak to a lawyer. Additionally, the State immediately proceeded to ask another question regarding another subject before Sanders’ counsel even lodged an objection. Furthermore, the State presented ample evidence to convict Sanders, including his own statements, the DNA evidence from the bloodstains, and his hat discovered at the crime scene. Sanders has failed to sustain his burden of proving he was prejudiced by Lawson’s remark so as to require reversal. The issue here is whether a mistrial should have been granted, and we hold the trial court did not abuse its discretion in refusing to do so. Batson challenges Sanders, an African-American, claims the State’s use of three of its peremptory challenges to strike minorities from the venire amounted to racial discrimination in violation of the 14th Amendment Equal Protection Clause of the United States Constitution and Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). Although the trial court did not specifically find Sanders had presented a prima facie case of racial discrimination and this issue might be handled as we did in State v. Sledd, 250 Kan. 15, 825 P.2d 114, cert. denied 506 U.S. 849 (1992), the court impliedly so found and clearly wanted to ensure a clear record was made concerning the exercise of the State’s peremptory strikes. When the State struck the minority members from the panel, Sanders requested race-neutral reasons, and the court permitted the State to explain its reasons for striking the jurors. The following day, additional argument was entertained regarding the challenged strikes. The manner in which we review a Batson challenge was recently set forth in State v. Vargas, 260 Kan. 791, 794-95, 926 P.2d 223 (1996), where we said: “In reviewing a Batson violation concerning the State’s use of a peremptory challenge, the applicable appellate standard of review is whether the trial court abused its discretion in determining if the challenged strikes were constitutionally permissible. State v. Walston, 256 Kan. 372, 373-74, 886 P.2d 349 (1994). Judicial discretion is abused only when exercised in an arbitrary, fanciful, or unreasonable manner, or in other words, when no reasonable person would take the view adopted by the trial court. Walston, 256 Kan. at 374 (citing State v. Wagner, 248 Kan. 240, 242, 807 P.2d 139 [1991]). “The Batson analysis involves a three-step process. First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Batson, 476 U.S. at 96-97. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. 476 U.S. at 97-98. Finally, the trial court must determine whether the defendant has carried his or her burden of proving purposeful discrimination. 476 U.S. at 98. “The Supreme Court recently elaborated upon this analysis in Purkett v. Elem, 514 U.S. 765, 131 L. Ed. 2d 834, 115 S. Ct. 1769 (1995). The Burkett court agreed that the Batson analysis is a three-step test. “The Burkett court observed that the second step of the Batson process does not demand an explanation that is persuasive, or even plausible, but requires merely facial validity of the prosecutor’s explanation. It determined further that unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral. It concluded that the ultimate burden of persuasion rests with, and never shifts from, the opponent of the strike. Burkett, 131 L. Ed. 2d at 839.” The first minority member the State struck was M.C., a Native American woman. The prosecutor declared she had already decided to strike M.C. before the prospective juror had announced she was Native American. Recalling that M.C. had indicated she would have trouble trusting people and had exhibited marked religious beliefs, the prosecutor stated in her experience “those of high religious beliefs have trouble judging people.” The prosecutor added, “She said she can’t judge other people; she has trouble doing that.” Later, the prosecutor set forth for the record that M.C. had indicated that she could not hold the State to its standard and that she may hold the State to a higher standard. The next minority member the State struck from the panel was E.B., an African American woman. The prosecutor explained that she was also striking E.B. due to her deep-seated religious beliefs, especially as she had said “Amen” following M.C.’s response that only God could judge people. The prosecutor pointed out that E.B. kept shaking her head with displeasure while defense counsel questioned the panel about having trouble with blacks. The prosecutor related that E.B. indicated she would have difficulty finding guilt without the murder weapon and that E.B. nodded in agreement when defense counsel spoke about the defendant not having to testify. Remarking that E.B. reminded her of her mother, the prosecutor added that her mother would be a horrible juror for the State. The prosecutor was further concerned with E.B.’s age, declaring that older women tend to have difficulty judging people. The State also struck the only remaining African-American on the panel, M.B. The prosecutor pointed out that M.B. was a teacher and that “teachers sometimes tend to be very sympathetic and do not make good State jurors.” She also mentioned that M.B. had “hemmed and hawed” when questioned about the handling of evidence in the O.J. Simpson trial. The next day, the prosecutor added that M.B. had mentioned problems with her job, as two other teachers were out sick. The next day, when further justifying her strikes of M.C. and E.B., the prosecutor stated: “As to [E.B.], who was the other black woman on the panel, she is an older lady. I told the Court yesterday that I generally tend to strike older women because I think they’re very sympathetic to the defense and don’t look at the hard facts. I indicated to the judge that she reminded me very much of my mother, a very religious person; and it’s been my experience when I run cases by my mom, she always votes for the other side. And it’s been my experience in 15 years of trying cases that elderly women are often very sympathetic and often have a hard time making decisions in a case like this. “I had Ms. [L.] on my list to strike for the very same reason, except defense got to her first. When — [M.C.], the American Indian woman — who was also an older lady and who didn’t want to be here; she wanted to be with her grandchil dren — she said she trusted people way too much. She made a comment that only one person can judge, and that’s God. [E.B.] went, Amen, which is fine; I think that’s great. But that’s one reason I struck her. Her skin color had absolutely nothing to do with it.” In ruling the State had presented race-neutral reasons for the strikes, the trial court noted that out of 60 people brought in to compose the venire panels, only 8 were members of minority groups. She indicated there were four African-Americans, one Vietnamese, one Hispanic, one Native American, and one of Lebanese origin. Of the four African-Americans, one did not make it onto a panel through random selection, and another was placed on the panel from which alternate jurors were chosen. Thus, out of the 36 people in the venire from which the jurors were selected, only 2 were African-Americans. Both were struck by the State. The State did not strike the African-American woman on the alternate panel. Of all the minority members, only the Lebanese man served on the jury. The trial court further and specifically stated: “And I want to point out that the reasons for striking [M.C.] and Mr. [N.J were patently obvious and obviously valid, and I find absolutely nothing that was a problem with them. . . . “. . . I want to point out that of those two [the African-Americans], . . . when [M.C.] made the comment about God was the judge of people, et cetera, or whatever the exact words she used, and [E.B.] said, Amen, I believed at that time that she was — would be struck. I believed at that time actually that both of them would be struck. It was a clear indication of some very strong feelings one way. “As to [M.B.], regarding the fact that she is a teacher, Ms. Fursthas made what I believe to be a clearly adequate record regarding her reason for striking [M.B.]. She is a teacher, and I will point out that when I was in the DA’s office, I struck just about every teacher on the panel as well.” In maintaining that the striking of M.C., E.B., and M.B. was racially motivated, Sanders claims the record indicates M.C. could have made a decision in the case. However, a reading of the cited record clearly indicates hesitation on the part of M.C. to judge a person, as well as a reluctance to apply the proper burden of proof, both of which qualify as race-neutral reasons for excluding a juror. The court’s determination that the strike of M.C. was patently obvious is not an abuse of discretion. Next, Sanders asserts the State’s antagonism towards persons of strong religious beliefs was not consistently applied. However, the State also struck two other jurors for this exact reason, and Sanders has failed to point out any other panel members that strongly exhibited this characteristic whom the State did not strike. The fact that E.B. responded “Amen” following statements that God is the only judge indicates her religious temperament and possible inability to pass judgment. Again, no abuse of discretion can be found in the trial court’s determination that E.B. was stricken for race-neutral reasons. Finally, Sanders argues the strike of M.B. on the grounds she was a teacher masked a discriminatory purpose because the State failed to strike a white teacher from the venire. When it struck M.B., the State pointed out that it had previously struck a white teacher for the same reason it struck M.B. When Sanders complained the State did not strike the remaining teacher from the panel, Ms. R., the State replied, “The difference in this one is that Ms. [R.]’s sister was the victim of an armed robbery and that case went to trial and so she has an idea of how victims feel. I feel she would be sympathetic to our dead victim, who nobody has to speak for.” In deciding whether the strike of M.B. was racially motivated, the court declared: “I do want to point out that her explanation for the reason that she left Ms. [R.] on the jury panel was a reasonable and valid exception for not striking her, whereas her tendency was to strike teachers. “Ms. [R.] was very clear that her sister had been the victim of a crime. There were a number of things in her comments that made it appear that the tendency to strike her as a teacher was overcome by other answers that she gave which might make Ms. Furst believe that she would be a good juror from the State’s perspective.” The reason for striking one teacher and not the other was clearly race neutral. In so finding, the trial court did not abuse its discretion. Sanders additionally argues a matter pertaining to the one remaining minority member of the venire who was left to serve on the jury. His claim is unsupported in the record, and the issue was not raised before the trial court. “An issue not presented to the trial court will not be considered for the first time on appeal.” State v. Alderson, 260 Kan. 445, Syl. ¶ 7, 922 P.2d 435 (1996). Sanders’ challenge to the composition of the jury panel fails. Consecutive life sentences Sanders was sentenced to three consecutive life terms for his conviction of first-degree murder pursuant to K.S.A. 21-4501(a) and 21-4504(b). Sanders now argues this sentence is illegal because its only purpose is to push back his parole eligibility date. We relied on State v. Beasley, 205 Kan. 253, 469 P.2d 453 (1970), cert. denied 401 U.S. 919 (1971), in upholding the enhancement of a life sentence pursuant to K.S.A. 21-4504 in State v. Baker, 237 Kan. 54, 56-57, 697 P.2d 1267 (1985). We also dismissed a similar argument regarding the alleged illegality of enhancing a sentence to postpone parole eligibility in State v. Evans, 251 Kan. 132, 141, 834 P.2d 335 (1992). Sanders has presented no compelling argument to convince us these cases were wrongly decided. Aggravated weapons violation Sanders contends no evidence was introduced at trial that would indicate the type or size of instrument used to murder Edmond, other than that the edge may have been serrated. Thus, he asserts the State failed to prove the element of possessing a dangerous knife, as required to establish an aggravated weapons violation contrary to K.S.A. 21-4202 (Ensley 1988). When the sufficiency of the evidence is challenged in a criminal case, our standard of review is whether, after a review of all of the evidence, viewed in the light most favorable to the prosecution, we are convinced that a rational factfinder could have found defendant guilty beyond a reasonable doubt. State v. Bowen, 262 Kan. 705, 942 P.2d 7 (1997). When the crime was committed, K.S.A. 21-4202 (Ensley 1988) provided that an aggravated weapons violation was a violation of the provisions of K.S.A. 21-4201 (Ensley 1988) by a person who had been convicted or released from imprisonment for a felony within the preceding 5 years. K.S.A. 21-4201(b) (Ensley 1988) prohibited the possession, with intent to unlawfully use against another, of any dangerous knife or other deadly weapon or instrument. This section also stated that “an ordinary pocket knife with no blade more than four inches in length shall not be construed to be a dangerous knife, or a dangerous or deadly weapon or instrument.” Language very similar to this was included in the jury instruction which set forth the elements of an aggravated weapons violation. The evidence clearly showed Sanders had been convicted or released from imprisonment for a felony within the preceding 5 years. In the present case, Edmond’s body was found beaten and strangled, and her throat had been cut numerous times. No weapon was discovered. In the kitchen, a drawer had been left open which contained kitchen utensils, including knives. Dr. Jill Gould, the forensic pathologist in the case testified the wounds on Edmond’s neck exhibited “numerous small, irregular but regularly-placed abrasions. This is something that we see that is consistent with the instrument having a serrated edge or a scalloped edge, like a steak knife or something like that, but an instrument that has a sharp, narrow blade with an irregular surface.” She also stated on a scale of 1 to 10, she would put the sharpness of the blade at 5, as it was not razor sharp. Dr. Gould indicated, “[W]e don’t see a nice, clean cut; we see a jagged cut like a more of a sawing action was used.” When asked if a pocketknife could have been used, she replied, “I guess one could have used a pocketknife, but I would think that the blade may have been longer. I don’t know.” Dr. Gould also testified that a cut on Edmond’s face was “consistent with an injury occurring due to a thin-bladed, sharp object. It could be a knife.” Although the pathologist was unable to state whether an ordinary pocketknife could have caused Edmond’s injuries, Sanders’ argu ment does not take into account the inferences the jury could reasonably have drawn from the evidence presented. As we pointed out in Sanders’ prior appeal, recently quoted in State v. Ordway, 261 Kan. 776, 804, 934 P.2d 94 (1997), “[i]f an inference is a reasonable one, the jury has the right to make the inference.” Sanders, 258 Kan. at 414. Here, it was reasonable for the jury to infer a knife was taken from the kitchen and used in the attack upon Edmond. Such a knife would fit the definition of a dangerous knife and would be consistent with the injuries described by the pathologist. Considering the evidence in the light most favorable to the State, we hold a rational factfinder could have found Sanders guilty beyond a reasonable doubt of an aggravated weapons violation. Affirmed. Lockett, J., not participating. Richard W. Wahl, Senior Judge, assigned.	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The opinion of the court was delivered by Davis, J.: Gordon R. Bames killed J.R. Santo after luring him to an isolated area in Sedgwick County. He appeals his convictions for first-degree murder and aggravated kidnapping and the hard 40 sentence imposed. He claims the Kansas competence statute is unconstitutional and that the evidence fails to establish his competence. He also contends the trial court erred in its instructions and its consideration of evidence upon sentencing. We find no reversible error and affirm. The body of 15-year old J.R. Santo was found by Sedgwick County Sheriff s officers buried underneath a 1956 Chevy in the defendant’s yard. The defendant was charged with premeditated first-degree murder and aggravated kidnapping in connection with Santo’s death. The defendant met Santo through his sister, Angela Barnes. Santo and Angela had both received treatment at St. Francis Hospital’s psychiatric ward in September 1993. Thereafter, Santo and Angela continued to correspond with each other and visit one another. The defendant met Santo and Angela one evening while they were shopping at the Best Buy store. The defendant was angry at the time because his truck was not working. Santo mentioned that his neighbor had a truck that would be easy to steal because it was usually left unlocked. On November 29, 1994, the defendant, Santo, and Angela stole the truck. In return for his help, the defendant gave Santo $50. The police questioned Santo the next day regarding the theft of the truck. Santo told police that he had spent the day with Angela and the defendant and knew nothing about the theft. Santo did tell police that the defendant worked as a mechanic for Coca-Cola in Wichita. The stolen truck was recovered in the parking lot of the Coca-Cola plant. The license tag on the truck was registered to the defendant. Police questioned Santo again, and he told them about the theft. Charges were filed against the defendant and Santo. According to Doug Anderson, a co-worker of the defendant at Coca-Cola, the defendant became upset that “some kid” was going to testify against him and that he would get jail time and be forced to pay restitution. Anderson stated that the defendant would frequently talk about his anger toward “this kid.” In March or April 1995, the defendant asked Anderson how a person might go about “getting rid” of someone. Anderson believed that the defendant was joking at the time. One night in mid-April, Anderson noticed that the defendant was working at the welding bench making a pair of axe heads. The defendant asked Anderson for some advice on attaching the heads to handles. According to Anderson, when the defendant finished making the axe heads, he painted them black and decorated the heads. Anderson did not find this activity unusual, as the defendant collected swords and other weapons. Another friend of the defendant, Kristy Wilson, testified that the defendant contacted her on April 29. He told her that he needed her help to “get rid” of a person who would be testifying against him in a truck theft. Wilson testified that she asked the defendant what he meant by “get rid” of the person. The defendant told her that he was going to kill the person and needed her to drive the car. Wilson asked the defendant if he really needed to kill the person, and the defendant stated that it was “the only way.” She agreed to help. Wilson did not really believe that the defendant would kill Santo and thought that the defendant might only beat Santo. The next night, Wilson called the defendant. The defendant asked her if she had a shovel that he could borrow but she said that she could not get it out of her house without being noticed. She picked the defendant up at his house. Again, she asked him if there was not some other way besides killing Santo; he again stated that killing Santo was “the only way.” The defendant explained to Wilson that Angela was to call Santo and tell him that she and Wilson were picking him up to go smoke marijuana out in the country. The defendant told Wilson that he would kill Santo, put the body in the trunk, and then dump the body out in the country. Before leaving to pick up Angela, the defendant put some trash bags in the trunk and took out the trunk light. The defendant also put a knife and an axe in the trunk. Wilson testified that they picked up Angela at a friend’s house. During this time, the defendant decided that he would hide in the trunk when they went to pick up Santo so that Santo would not know he was present. The group drove to Santo’s house, stopping a few blocks away so that the defendant could get in the trunk. Santo got into the car. Angela told Santo that they were going to a party but that first they would go out into the country and smoke some marijuana because she did not have enough to share with the people at the party. Wilson then drove out into the country and stopped at a location in Sedgwick County. The group got out of the car and began to smoke marijuana from a tomahawk-shaped pipe. Wilson told Santo that she was going to go back to the trunk to look for some more marijuana. Wilson opened the trunk, left it partially open, and returned to the front of the car where Santo and Angela were smoking marijuana. Approximately 5 minutes later, the defendant got out of the trunk and walked toward the group. He was dressed in a black shirt with a hood and black jeans. According to Wilson, the defendant walked up to Santo and stated in a monotone “[H]ey, J.R., how are you doing.” At this point, Angela yelled for Wilson to run, and both Wilson and Angela ran. Wilson testified that as she looked back, she saw the defendant raise his arm and strike Santo. She heard a “thump” and then heard Santo scream, “No,” “Please don’t,” and “Help.” Wilson put her hands over her ears because she did not want to hear anything else. After a short time, Wilson and Angela decided to go back to the car. They did not see the defendant or Santo. Wilson started the car and then saw the defendant near a line of trees. She then saw another car coming up the road toward them. The defendant yelled for them to drive past the oncoming car and turn around while he hid in the trees. They did so. When Wilson and Angela returned to the place where the attack had occurred, the defendant dragged Santo’s body from behind some trees. Wilson opened the trunk of the car, and she and the defendant placed Santo inside. Wilson testified that she heard Santo make a “gurgling” noise while she was helping to put him in the trunk. The defendant directed Wilson to drive to an area near 87th Street in Wichita. At 87th and Bluff, they found the street blocked by a locked gate. The defendant got out and tried to open the gate but was unsuccessful. He then told Wilson to take the body back to his house. Wilson realized that to get to the defendant’s house, they would have to drive down Broadway Street, and she was very nervous that they might get stopped. The defendant told Wilson and Angela that if they were stopped they should tell the police that he had threatened them and made them go along in the killing. Before turning onto Broadway, Wilson stopped the car and checked the outside for blood. The group arrived at the defendant’s house, and the defendant took Santo’s body out of the trunk. The defendant told Wilson that he was going to bum the shirt he had been wearing, and she gave him the gloves that she had been wearing to bum. The defendant then went outside to wash the car. The defendant washed the trank out with a hose and then drove to a car wash and washed off the outside. Wilson then went home. The next day, Brian McGilvray, another friend of the defendant, went over to the defendant’s house. When McGilvray arrived, the defendant told him that some strange things had been occurring inside the house, such as candles flickering on and off, but that the activity had stopped with McGilvray’s arrival. While he was there, the defendant told him that the defendant had “had to take care of somebody” and was disturbed by it. The defendant told Mc-Gilvray that he hit a person on the head with a tomahawk, that he stabbed the person with a knife, and that the person did not fight back. The defendant showed McGilvray where he had buried the body in the back yard. Two days after the murder, when the defendant showed up for work, Doug Anderson noted that the defendant’s face looked swollen, as if he been in a fight. That week was the defendant’s scheduled court appearance on the stolen track case, at which he plead no contest to theft and criminal damage to property charges. The defendant indicated to Anderson that the proceedings had gone well and the witness who was going to testify against him had not shown up. Later, the defendant told Anderson that the reason the witness did not show up was because he had used his sister to lure the witness into the country, and he had killed the witness with an axe. Anderson testified that the defendant told him that the body was making “gurgling” noises as the defendant was putting it in the trank of the car. Anderson also testified that, after this incident, whenever the defendant would get angry at work, the defendant would mutter that he would like to “dig [Santo] up” and use his head for a basketball or soccer ball. Isaac Ibarra, another friend of the defendant, stated that he was riding in a car with the defendant in May when the defendant suddenly slowed the car down and asked Ibarra if he had seen people in the road. Ibarra saw no one in the road. Later, the defendant showed Ibarra a pair of axes and stated he was ready for the spirits to come after him. The defendant told Ibarra that he had killed someone and the spirit of the dead person would be coming after him. Ibarra indicated that the defendant began wearing two axes on a string around his neck. The defendant was questioned on two occasions by law enforcement officers. During the second interrogation, he confessed to killing Santo and burying him 6 feet deep under the 1956 Chevy. Acting on this information, officers were able to recover Santo’s body. The defendant was charged with first-degree premeditated murder and aggravated kidnapping. The State filed a notice that it would be seeking the hard 40 sentence for the first-degree murder charge. Prior to trial, the defendant filed a notice that he would be asserting an insanity defense. The defendant also filed a notice of incompetency to stand trial and a motion to strike competency proceedings as unconstitutional. The defendant argued that K.S.A. 22-3302 violated his right to due process in that it did not set out an evidentiary standard to be used in competency proceedings. A hearing on the defendant’s competency was held on December 22,1995. Before presenting any evidence, the defense counsel raised an issue regarding which party had the burden of proof. The court took the motion under advisement. The State called Dr. Wayne Anderson, the Chief Psychologist for the Sedgwick County Department of Mental Health. Dr. Anderson testified that he had been asked to examine the defendant pursuant to a court order to determine competency. He stated that the defendant was brought to the examination area, at which time the defendant expressed reluctance to participate in the evaluation without first talking to his attorney. Dr. Anderson asked to have the defendant’s attorney contacted. Twenty minutes later, he received word that the defendant’s attorney would not be available for approximately one-half hour. Because the defendant did not want to have the examination without his attorney, the examination was canceled. Dr. Anderson testified that the defendant was polite, seemed calm, spoke in a clear manner, and responded logically. Dr. Anderson stated that he then had another opportunity to interview the defendant the day before the hearing. However, the defendant still did not wish to participate in the evaluation. Dr. Anderson stated that he found the defendant able to communicate in a normal manner and with logical speech. Dr. Anderson testified that as a result of the defendant’s refusal to take the evaluation, he was unable to render a professional opinion as to competency. Dr. Samuel Harrell, a licensed clinical psychologist, testified on behalf of the defendant. Dr. Harrell had interviewed the defendant for approximately 12 hours and had administered a battery of tests. According to Dr. Harrell, the tests indicated that the defendant was suffering with schizophrenia of the paranoid type, depressive disorder, and post-traumatic stress disorder with delayed onset. Dr. Harrell felt that the defendant was also suffering dementia from a possible childhood head trauma. In Dr. Harrell’s opinion, the defendant was not competent to stand trial. Dr. Harrell testified that the defendant was preoccupied with delusions and would not be able to testily in a rational manner or assist in his defense. Dr. Harrell felt that the defendant might possibly feel paranoid and believe his attorney to be against him and as a result might withhold information from his attorney. Further, Dr. Harrell was of the opinion that the defendant’s borderline mental retardation would make it difficult for him to understand the courtroom proceedings. Dr. Harrell stated that he questioned the defendant with regard to his understanding of court proceedings. The defendant stated that “the jury decides whether you live or die or just put[s] you away” and that the jury tells the judge its decision. According to Dr. Harrell, the defendant did not know the function of the judge but did know that his lawyer was to try to help him out as much as he could and “tell good things about him.” Dr. Harrell admitted on cross-examination that the defendant did understand the role of the defense attorney and the basic operation of the court. Further, the defendant took a test in which he filled in incomplete sentences wherein he stated that his greatest worry is “being in prison for the rest of my fife.” In another exercise, the defendant stated that he regrets “making bad decisions” and the only trouble he has is “making the right decisions.” Dr. Harrell also admitted that the defendant’s co-workers found him a fun person to be around and that he was able to competently perform his job as a mechanic. However, on redirect, Dr. Harrell noted that, according to his testing, the defendant loses 52% of his memory of things people have said to him within 30 minutes. According to Dr. Harrell, the normal person retains 90-100% of this auditory memory after 30 minutes. Dr. Harrell felt that this problem with auditory memory could affect his ability to relate to counsel and plan strategies. The State called Officer John Schilling in rebuttal. Officer Schilling testified that he was the detention deputy at the Sedgwick County Jail where the defendant was confined. According to Schilling, the defendant had no trouble following instructions at the jail and did not exhibit any behavior out of the ordinary. Schilling admitted, however, that the most complicated instructions he had given the defendant were to return to his room and shut the door. Dr. Harrell testified in surrebuttal that the defendant’s ability to follow jail rules has no bearing on the ability to stand trial. He did admit that his testing demonstrated that the defendant had an appreciation and understanding of his actions and the consequences of his actions. At the conclusion of the presentation of evidence, the court determined that there was no actual burden of proof under K.S.A. 22-3302, that competence was a question for the court based on the evidence presented, and further that the defendant was competent to stand trial. The court found the testing demonstrated that the defendant understood the charges against him and the potential penalties as well as the purpose of the proceedings and the role of his attorney. The court also noted that the defendant appeared to be cooperating well with his attorney. On January 22, 1996, the day of trial, defense counsel informed the court of a need to reopen the competency hearing. Defense counsel told the court that he had discussed the case with the defendant that morning and the defendant was having trouble understanding the nature of the proceedings. According to defense counsel, the defendant recalled the judge’s name and that the judge ran the courtroom but did not know why a judge was necessaiy if there was to be a jury. The defendant understood that the prosecution would tell its story and stated that the prosecution would try to “put some time on him.” He understood that his defense counsel would be raising insanity and self-defense issues but could not recall the facts that would establish those defenses. The court agreed to hear further evidence on competency. The defense called Dr. Harrell, who testified that he had again examined the defendant. According to Dr. Harrell, the defendant was having problems with things said in the courtroom. Dr. Harrell stated that the defendant told him that the judge was making statements that the defendant could not understand, that the prosecutor was taking information and turning it against him, and that the defendant knew the defense attorney was there to help him but could not explain why. Dr. Harrell testified that the defendant’s thought process was becoming fragmented and delusional and that he was evasive when answering questions. The defendant would sometimes engage in non-purposeful behavior like waving a pencil around in the middle of the tests. Dr. Harrell was of the strong opinion that the defendant was not “malingering” or manufacturing his symptoms. He did admit on cross-examination that the defendant was responsive to all of the tests. Dr. William LeVine, a psychiatrist, then testified. Dr. LeVine stated that he had interviewed the defendant at the request of the State on January 5 and January 17. During these interviews, he spoke with the defendant about the legal process. According to Dr. LeVine, the defendant knew he was charged with murder, who his lawyer was, and that the lawyer was paid to defend him. Further, the defendant knew that the prosecutor would be fighting against him and that he was not going to be released no matter what the result of the trial. Dr. LeVine testified that the defendant knew he could be sentenced to serve 40 years in prison without parole. Dr. LeVine testified that the defendant told him that when he was in the courtroom things made no sense to him. However, Dr. LeVine noted that the defendant was cooperative and answered questions in a coherent manner. Dr. LeVine stated that the defendant meets many of the factors that suggest malingering, including: (1) motive to malinger; (2) presence of an antisocial personality disorder; (3) sudden purported emergence of psychotic symptoms to explain antisocial behavior; (4) symptoms which arise in the context of a legal proceeding; (5) lack of objective corroboration of symptoms before the crime occurred; (6) inconsistency of information from different sources or from the same source at different times; and (7) weak conformance with known patterns of psychiatric disorders. In Dr. LeVine’s professional opinion, the defendant was competent to stand trial. He noted that in his conversations with the defendant, he saw no evidence of thought disorder or paranoid delusions and found that the defendant could remember the conversation from one visit to the next and understood generally the role of various components of the legal process. On cross-examination, Dr. LeVine admitted that he spoke to the defendant for 90 minutes on January 5 and 30 minutes on January 17 and conducted no actual testing during this time period, although he did review the reports of the testing done on the defendant. The trial court concluded that the defendant was competent to stand trial. The court indicated that it felt the defendant was malingering and ordered the case to proceed to trial. The defendant testified on his own behalf. He admitted that he participated in stealing the truck although he stated that it was Santo’s idea. The defendant also testified that Santo sent him a letter asking him to burglarize the house of one of Santo’s parents and split the money with Santo, but that he declined. The defendant indicated that trouble between himself and Santo began following their arrest for stealing the truck. According to the defendant, Santo wanted the defendant to clear him of wrongdoing. The defendant refused, and Santo threatened to have someone rape and disfigure the defendant’s sister. The defendant testified that he began hearing voices after a friend of his had accidentally shot himself when they were both playing with a gun in the woods. He stated that a voice began telling him to kill Santo after Santo threatened his sister. He identified the voice as the voice of his late grandmother, who had ordered him to protect his sister. The defendant testified that after Santo threatened his sister, he was afraid to let her be alone for fear that she would be harmed. The defendant stated that when the group went out in the country he was not going to kill Santo. Instead, he was going to severely beat Santo so that Santo would stay away from his sister. When he got out of the trunk, he noticed that Santo was holding a tomahawk-shaped peace pipe, and he knocked it out of Santo’s hand with his axe. He then hit Santo over the head with the axe and they struggled. He knocked Santo into a ditch and began slapping him around, stating, “[W]hat are you going to do now?” Then, according to the defendant, he “just kind of lost it,” pulled out a knife he was carrying, and stabbed Santo. The defendant also testified that he thought Santo would be coming back to life. He buried the body in the back yard so that he could keep watch on it. Other testimony introduced on behalf of the defendant included evidence of severe childhood abuse suffered by the defendant at the hands of his mother and maternal grandmother prior to his adoption by his current family. A former stepfather of the defendant, the defendant’s maternal aunt, the defendant’s babysitter, and the defendant’s sister all testified that the defendant suffered horribly at the hands of his mother and grandmother, who were both severely mentally ill. At the instructions conference, the defense asked that the jury be instructed on self-defense. The court declined to give the instruction. The defendant was convicted of premeditated first-degree murder and aggravated kidnapping. His sentencing hearing was held on April 16, 1996. At the hearing, the State decided to rest its evidence regarding imposition of the hard 40 sentence on the evidence presented at trial. The defense presented the testimony of Mary Hudson Goode, a mitigation specialist. Goode testified at length regarding the defendant’s family history, relating evidence showing how the defendant had been abused prior to being adopted by his current par ents. She testified in great detail about the problems for the defendant caused by the mental illness suffered by his mother and maternal grandmother. The defense also offered several notebooks of evidence regarding the defendant’s social and psychological history. At closing arguments, defense counsel urged the court to adjourn and review the information in detail. The court stated: “Back at the time there was an issue regarding admissibility in front of the jury, I did get an opportunity to scan those. That’s the best I can describe it, is scanning those, because literally if I were to read every document that was in there, I would probably have to recess this hearing for a month and block out the entire working hours for the next month to read those documents.” Defense counsel indicated that this procedure was exactly what he was suggesting. The court then stated that it had previously reviewed the information in the notebooks during the trial and that much of the information contained in them was not relevant. The court stated, however, that it would be glad to review any specific items the defendant wished to present. Defense counsel responded that he could not pull out any one document and designate it as more significant than others. The court then agreed to review the documents over lunch hour. The defendant was sentenced to the hard 40 on the premeditated first-degree murder charge and 178 months for the aggravated kidnapping charge, to run consecutively. His appeal follows. Before addressing the issues raised by the defendant, we note that his appeal is untimely. The defendant’s sentence was pronounced on April 16, 1996, and his notice of appeal was not filed until May 1, 1996, 15 days later. A criminal defendant has only 10 days from the date sentence is pronounced in which to appeal. K.S.A. 22-3608(c). Ordinarily, this court does not have jurisdiction to entertain an appeal in a criminal case where the notice of appeal is untimely. State v. Ortiz, 230 Kan. 733, 736, 640 P.2d 1255 (1982). However, an exception exists where the defendant was furnished an attorney for the purpose of filing a notice of appeal and the attorney failed to perfect and complete the appeal. State v. Shortey, 256 Kan. 166, 168, 884 P.2d 426 (1994). The defendant falls within the exception, and our jurisdiction vests under K.S.A. 22-3608(c). Constitutionality Of K.S.A. 22-3302; Determination Of Competency To Stand Trial The defendant contends that the procedure for determining whether a criminal defendant is competent to stand trial under K.S.A. 22-3301 and K.S.A. 22-3302 is unconstitutional. He argues that K.S.A. 22-3302 fails to provide for an appropriate evidentiary standard and is, therefore, unconstitutionally vague. He also argues that the same statute denies him due process of law by failing to provide him an adequate hearing. In regard to the defendant’s first contention, we have recently addressed this issue. In State v. Cellier, 263 Kan. 54, 948 P.2d 616 (1997), we held that K.S.A. 22-3301 and K.S.A. 22-3302 were not unconstitutional. We found that K.S.A. 33-3302 implicitly contains a standard of proof of preponderance of the evidence with the burden of proof imposed on the party raising the competency issue. 263 Kan. at 69-70. We further held that there is a presumption that the defendant is competent to stand trial. 263 Kan. at 70. The district court adopted the appropriate standard of preponderance of evidence in its determination that the defendant was competent to stand trial. While the district court did not have the benefit of the Cellier holding regarding burden of proof, it did not require the defendant to assume the burden of proof and based its decision upon all evidence presented. Our holding in Cellier is dispositive of the defendant’s first argument. The defendant also contends that K.S.A. 22-3302 fails to honor an accused’s right to a meaningful hearing in that it does not require the district court to appoint a psychologist to evaluate the capacity of the defendant, nor does it require an adversarial hearing. The defendant suggests that the absence of these requirements makes the statute unconstitutional. However, the defendant fails to present any authority holding that an adversarial hearing is required. In Medina v. California, 505 U.S. 437, 451, 120 L. Ed. 2d 353, 112 S. Ct. 2572 (1992), the Supreme Court held that the standard for assessing whether a State’s procedure for determining competency comports with due process is whether the procedure “affords the criminal defendant on whose behalf the plea of incompetence is asserted a reasonable opportunity to demonstrate that he is not competent to stand trial.” The Due Process Clause does not require a state to adopt one procedure over another on the basis that it may produce results more favorable to the accused. 505 U.S. at 451. The framework provided by K.S.A. 22-3302 gives the defendant ample opportunity to so demonstrate. It allows the defendant or his counsel to raise the issue and requires a hearing at which time the defendant is allowed to present evidence to establish his incompetence. The fact that the hearing may not afford the defendant the opportunity to cross-examine court-appointed physicians does not detract from his opportunity to demonstrate his incompetence. We conclude that K.S.A. 22-3302 provides a defendant with a procedure which is adequate to protect his right not to be tried while incompetent. Therefore, it is not unconstitutional. Did The District Court Err In Determining That The Defendant Was Competent To Stand Trial? The defendant contends that the evidence demonstrated his incompetence and the district court abused its discretion in finding him competent to stand trial. A criminal defendant is incompetent to stand trial when, because of a mental illness or defect, the defendant is unable to understand the nature and purpose of the proceedings against him or her or where he or she is unable to make or assist in making a defense. K.S.A. 22-3301. On appeal, a reviewing court’s inquiry regarding the decision of a district court that a defendant is competent to stand trial is whether the trial court abused its discretion. State v. Peckham, 255 Kan. 310, 325, 875 P.2d 257 (1994). Judicial discretion is abused where no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. State v. O’Neal, 256 Kan. 909, 911, 889 P.2d 128 (1995). In this case, the district court held a hearing from December 22, 1995, to January 2, 1996, and continued that hearing to permit new evidence on January 22,1996. During these competency hearings, the defense’s witness, Dr. Harrell, testified that tire defendant was suffering from schizophrenia of the paranoid type, depressive disorder, and post-traumatic stress disorder with delayed onset, as well as dementia from a possible childhood head trauma. In Dr. Harrell’s opinion, the defendant was not competent to stand trial because he was preoccupied with delusions and would not be able to testify in a rational manner or assist in his defense. Dr. Harrell felt that the defendant might possibly feel paranoid and believe his attorney to be against him and, as a result, might withhold information from his attorney. Further, Dr. Harrell felt that the defendant’s borderline mental retardation would make it difficult for him to understand the courtroom proceedings. However, when Dr. Harrell questioned the defendant with regard to his understanding of court proceedings, the defendant was able to relate the functions of many of the participants in the courtroom, including the function of the defense attorney. Although Dr. Anderson was unable to render a professional opinion because the defendant refused to allow himself to be evaluated without counsel present, he testified that he was able to speak to the defendant and that the defendant was able to communicate in a normal manner and the defendant’s speech was logical. Dr. William LeVine, who was able to interview the defendant, testified that the defendant understood the legal process and was able to cooperate and answer questions in a coherent manner. In Dr. LeVine’s professional opinion, the defendant was competent to stand trial. It is undeniable that the defendant has some mental problems. However, there is conflicting evidence on the question whether these problems would render him incompetent to stand trial. Both expert witnesses who testified indicated that the defendant had comprehension of the roles of the various participants in the trial and understood the crimes with which he was faced, as well as the possible ramifications of conviction of those crimes. As for his ability to help with his defense, the evidence indicated that the defen dant was able to respond appropriately in court and cooperate with his attorney to the extent that the defendant refused to be examined by Dr. Anderson without his attorney present. Although Dr. Harrell testified that the defendant’s alleged paranoia might cause him to fail to cooperate with his defense attorney, this was mere speculation, and diere was no indication that such paranoia surfaced during trial. The testimony regarding the defendant’s memory retention ability is an area of concern. However, although Dr. Harrell testified that the defendant was woefully deficient in this area, Dr. LeVine testified that he saw no problems with the defendant’s ability to recall recent events. Dr. LeVine also testified that the defendant met many of the factors which would at least indicate the defendant might be malingering. Based on these factors, the district court’s determination that the defendant was competent to stand trial was not one with which no reasonable person would agree. Under our standard of review, we conclude that the district court did not abuse its discretion. Did The District Court Err In Refusing To Instruct On Self-Defense? The defendant argues that the district court erred in failing to instruct the jury on self-defense. He contends that there was evidence which would establish that he believed that force was necessary in order to defend himself from Santo. We disagree. In a criminal action, the district court must instruct the juiy on the law applicable to defendant’s theories for which there is supporting evidence. When considering the refusal of a trial court to give a specific instruction, the evidence must be viewed by the appellate court in the light most favorable to the party requesting the instruction. See State v. Hernandez, 253 Kan. 705, 706, 861 P.2d 814 (1993). A defendant is entitled to an instruction on his or her theory of the case even though the evidence thereon is slight and supported only by the defendant’s own testimony. State v. Shortey, 256 Kan. at 172. In order to justify the giving of a self-defense instruction, the evidence must include some evidence to support each prong of a two-prong self-defense test. The first prong is subjective and requires a showing that the defendant sincerely and honestly believed it was necessary to kill to defend himself. The second prong is an objective standard and requires a showing that a reasonable person in the defendant’s circumstances would have perceived self-defense as necessary. State v. Tyler, 251 Kan. 616, 625, 840 P.2d 413 (1992). The defendant contends that there was evidence which would establish that he was engaged in mutual combat with Santo and that killing Santo was necessary to defend himself. He is wrong. The evidence in this case, including the defendant’s testimony, indicates that the defendant walked up to Santo and initiated the conflict by hitting Santo in the arm and head with his axe. Although he now argues on appeal that Santo was holding a tomahawk-headed smoking pipe at the time, there is no indication whatsoever that the defendant felt threatened by Santo at the time of the killing. Even if what happened after the defendant struck Santo could be characterized as mutual combat, an instruction would still not be necessary. The doctrine of self-defense cannot be invoked to excuse a killing done in mutual combat willingly entered into. State v. Gayden, 259 Kan. 69, 82, 910 P.2d 826 (1996). One willingly entering into a mutual combat is not justified or excused in taking life unless he or she has withdrawn in good faith and done all in his or her power to avert the necessity of killing. 259 Kan. at 82. There is simply no evidence which would allow a jury to determine that the defendant acted in self-defense in this case. The defendant’s own testimony establishes that he struck Santo with an axe; fought with him, rendering Santo helpless; and then stabbed him numerous times with a knife. Although the defendant now claims that he acted only to disarm Santo and then was forced to defend himself when Santo attempted to grab his axe, this argument is contradicted by the testimony at trial. In describing his actions, the defendant stated, “For some reason, I kind of pulled out [my axe], knocked [the pipe] out of his hand, hit him in the head. That’s when we started struggling.” Finally, the only evidence of the killing shows that the defendant had Santo at his mercy, and then drew his knife and began stabbing him. Did The District Court Fail To Consider Mitigation Evidence At Sentencing? The defendant’s final argument is that the district court failed to consider mitigation evidence contained in several notebooks submitted to the court at the sentencing hearing. The defendant contends that the court’s failure to read each and every one of the exhibits presented deprived him of his due process rights and requires that he be resentenced. K.S.A. 21-4635(b) provides that, in order to make a determination of whether to impose the hard 40, “the court may be presented evidence concerning any matter that the court deems relevant to the question of sentence and shall include matters relating to any of the aggravating circumstances enumerated in K.S.A. 21-4636 and any mitigating circumstances. Any such evidence which the court deems to have probative value may be received regardless of its admissibility under the rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements.” The defendant argues that the court refused to read the exhibits he presented in mitigation. From the tenor of the defendant’s brief, one might assume that the court absolutely refused to read any of the information submitted and that this was the only information presented in mitigation. Such is not the case, as a reading of the record reveals. In addition to the information contained in the notebooks, the defense presented the testimony of mitigation specialist Mary Hudson Goode, who testified at length regarding the defendant’s family history, including the defendant’s abuse prior to being adopted by his current parents and the defendant’s problems with the mental illness suffered by his mother and maternal grandmother. With regard to the notebooks of evidence regarding the defendant’s social and psychological history, the district court judge agreed to review die notebooks, but not to read them word for word, stating: “Well, I can’t feature that I really need to read them. I did scan them, because I glanced through — I went through in detail and logged one entire volume so I had an idea of the nature of the documents that were in there; and it includes things like grade cards of Angela’s, things that just couldn’t possibly relate to the issue that is before the Court here this afternoon. “But I know there are other items other than that in these documents. But, by scanning the rest of the notebooks, I have a flavor for what is in there and realize certainly I have had those at my disposal since the time of trial. They have been available that I could review them, but I have to say I have not had additional reviewing of them other than what I had during the trial, because I think that from my review at the time I could not see anything that needed more than the three and a half week trial that the Court already has been through, because I know a lot of that same information contained in the documentary form inside those exhibits has already been presented in the form of live witnesses in the courtroom. So, I can’t see that adding on to that would be of great value. “If you want to single out individual documents out of there for me to review, I will be glad to do that. If you think there’s some things that go specifically to the issue of mitigation or aggravation that I have not otherwise heard any evidence on that would relate to that, I will be glad to review those particular items. But, everything I was seeing in there was a duplication of what the witnesses were testifying about or they were so far out on the way of relevancy — as an example, Angela’s grade cards, I couldn’t see how they would have a bearing on aggravating and mitigating circumstances. “So, under one of those two theories I don’t see a reason for me to review every one of those documents, but I certainly will give you the opportunity if you want to single out specific documents that you think especially go to aggravating or mitigating circumstances that have not otherwise been presented by five testimony.” Defense counsel answered that he could not pull out any one document and designate it as more significant than others. The court then agreed to review the documents over lunch hour and did so. In support of his argument that this action by the district court violated his rights, the defendant cites Eddings v. Oklahoma, 455 U.S. 104, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982). In Eddings, the Supreme Court found that it was error for the district court to refuse to consider, as a matter of law, relevant mitigating evidence. 455 U.S. at 113-14. However, Eddings is not applicable to the situation in this case, where the district court did not as a matter of law refuse to consider relevant mitigating evidence. Instead, it is clear that the district court considered the evidence presented by the defendant in mitigation of punishment that it deemed relevant. Under K.S.A. 21-4635, the court has the discre tion to admit and consider such evidence as it finds relevant. The court allowed the defendant to present evidence through a mitigation specialist and also admitted and reviewed supporting documents, which the court had previously seen in the trial. Further, the court considered evidence from the trial regarding the same events depicted in the notebooks which the defendant urged the court to consider. Finally, the court informed the defendant that while it would not read every item contained in every one of the notebooks, it would certainly consider any individual items that the defendant might designate. The evidence in question was admitted into evidence by the district court. Contrary to the defendant’s contention, the court considered all evidence deemed relevant under the provisions of K.S.A. 21-4635. The court gave the defendant the opportunity to specify what documents within the eight notebooks that the defendant wished the court to consider. The defendant failed to avail himself of this opportunity, insisting that every document be considered. Under the circumstances, we conclude that the court considered the evidence. We further conclude that it is the trial court’s prerogative to determine relevancy. In this case, the defendant has demonstrated no abuse of discretion in the trial court’s consideration of the relevant evidence regarding sentencing. Affirmed.	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WHEREAS, on the 12th day of July, 1985, Richard E. Keithley, an attorney of Olathe, Kansas, admitted to the practice of law in Kansas, was convicted in the District Court of Johnson County, Kansas, of one count of aggravated incest in violation of K.S.A. 1984 Supp. 21-3603; and WHEREAS, on the 22nd day of August, 1985, an order was issued to said respondent to appear and show cause why he should not be disbarred from the practice of law in the State of Kansas; and WHEREAS, although the respondent failed to appear as ordered, he has advised this court of his intention to appeal his conviction; and WHEREAS, after full consideration the court finds that the license of respondent to practice law in Kansas should be indefinitely suspended pending the final determination of his appeal and until the further order of the court. NOW THEREFORE, IT IS ORDERED that Richard E. Keithley be and he is hereby indefinitely suspended from the practice of law in the State of Kansas pending the final determination of his appeal and until the further order of the court. Effective this 19th day of November, 1985. BY ORDER OF THE COURT.	[ -112, -54, -68, 93, 14, 96, -70, 54, -37, -13, -92, 83, -117, -38, 68, 121, 3, 109, 21, 121, -63, -73, 119, -63, -10, -5, -47, -35, -69, 93, -26, -75, 73, -80, 74, 21, -58, -55, -55, 28, -114, 4, -103, -4, 80, 6, 52, 127, 87, 14, 49, 31, -77, 106, 28, -63, -119, 108, -53, 111, 25, -79, -101, -107, 126, 16, -77, -124, -100, 7, -48, 63, -104, 59, 1, -19, 55, -122, -58, 116, 79, -23, 32, 102, 34, 32, 33, -83, -68, -120, 14, -14, -99, -89, -103, 88, 97, -120, -98, -97, 116, 20, 43, -4, -31, -59, 21, 108, 14, -53, -60, -77, -49, 54, -54, 24, -5, -81, 48, 117, -43, -76, 78, 70, 114, 27, -97, -12 ]
The opinion of the court was delivered by Schroeder, C.J.: Lawrence N. Booze (defendant-appellant) appeals his sentence as a second offender for driving under the influence of alcohol. K.S.A. 1983 Supp. 8-1567(d). The defendant contends that a conviction on the first offense did not precede the commission of the second offense; therefore, the “sequential relationship” requirement of State v. Osoba, 234 Kan. 443, 672 P.2d 1098 (1983), was not met. Accordingly, the defendant claims the trial court erred by failing to sentence him as a first offender on the second conviction. The defendant was cited for driving under the influence of alcohol on July 3, 1983, in Sedgwick County, Kansas. On December 23, 1983, the defendant entered into a diversion agreement with the State on this charge. The diversion was to last for one year, at the end of which — providing the defendant did not violate the terms of the agreement — the charges would be dismissed with prejudice. K.S.A. 1983 Supp. 22-2911. On November 30, 1984, approximately one month before the end of the diversion, the defendant was again cited for DUI in Sedgwick County, Kansas. Shortly thereafter, the State filed a motion to terminate the defendant’s diversion and reinstate prosecution on the first offense due to the defendant’s failure to comply with the terms of the agreement. The proceedings on.both the first and second DUI offenses occurred on February 21, 1985, in the Sedgwick County District Court. The defense counsel announced that an agreement had been reached with the State whereby the defendant would consent to revocation of his diversion and would plead guilty to both charges while the State would not oppose the defendant’s legal argument that he should be sentenced as a first offender on both convictions. The State also agreed to recommend the minimum sentences. Thereafter, the defendant did plead guilty to both charges. At the sentencing hearing on March 13, 1985, the trial judge informed the defendant that, according to his interpretation of K.S.A. 1983 Supp. 8-1567(i), the second DUI offense would be subject to mandatory enhancement and that he would pronounce sentence accordingly. The defendant was given an opportunity to withdraw his plea, but he declined to do so. The court then proceeded to sentence the defendant as a first offender on the original DUI charge, and as a second offender on the second DUI charge. This appeal followed. The sole issue in this case is whether a diversion agreement becomes a “conviction” for purposes of sentencing under K.S.A. 1983 Supp. 8-1567 when it is first entered into, or not until the diversion has been completed and the charges dismissed with prejudice. Under K.S.A. 1983 Supp. 8-1567, a previous conviction of the same offense is not an element of the substantive crime, but serves only to enhance punishment. The statute itself is a “self-contained habitual criminal act.” See State v. Loudermilk, 221 Kan. 157, 161, 557 P.2d 1229 (1976). The term “conviction” is defined in 8-1567(i) as follows: “For the purpose of determining whether a conviction is a first, second or third or subsequent conviction for the purpose of sentencing under this section, the term, ‘conviction includes being convicted of a violation of this section or entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of this section. For such purpose ‘conviction’ also includes being convicted of a violation of a law of another state or an ordinance of any municipality which prohibits the acts that this section prohibits or entering into a diversion agreement in lieu of further criminal proceedings in a case alleging a violation of such a law or ordinance. For the purpose of this section, only convictions occurring in the immediately preceding five years, including prior to the effective date of this act, shall be taken into account.” (Emphasis added.) The defendant argues that in order for a diversion to truly be “in lieu of further criminal proceedings,” the diversion must have been completed and all charges dismissed. Until that time, the charges may be reinstated if the defendant breaches his agreement, and “further criminal proceedings” had. In the case at bar, the second charge arose during the diversion period. Following this second offense, the charges on the first offense were reinstated and the defendant was later convicted — on the same day — of both charges. The defendant argues that this sequence — offense, offense, conviction, conviction — violates the “sequential relation” requirement for enhancement of sentences as stated in State v. Osoba, 234 Kan. at 444: “ ‘[F]or enhancement of sentence of a defendant as a second offender [under K.S.A. 8-1567], the previous conviction must have occurred prior to commission of the principal offense.’ ” Accordingly, the defendant claims the sentence on his second DUI conviction should not have been enhanced. The State, on the other hand, argues that the Osoba sequential relation requirement was complied with in this case because there was a “conviction” on the first offense at the moment the defendant entered into the diversion agreement. The State further argues that this court’s holding in State v. Clevenger, 235 Kan. 864, 683 P.2d 1272 (1984), is dispositive of the case at bar. In Clevenger, as in the instant case, the defendant was charged with his second DUI offense while he was on diversion for a previous DUI offense. Accordingly, charges on the first offense were reinstated. The defendant was then sentenced as a second-time offender on the second offense. The defendant appealed the enhanced conviction, claiming that considering diversion to be a “conviction” for purposes of sentencing constituted a violation of his constitutional right to due process since his guilt or innocence had not been adjudicated prior to entering into the diversion agreement. After considering the nature of diversion agreements and the public policy behind the enhanced sentencing statute, the court concluded that by entering into a diversion agreement, the defendant waived his rights to due process; therefore, construing “conviction” to include diversion did not violate his constitutional rights. Due to the factual setting of the case, the court, in order to reach its holding, necessarily assumed that K.S.A. 1983 Supp. 8-1567(i) includes a diversion, which has not been completed, in its definition of “conviction.” However, the issue of whether this was the correct interpretation of 8-1567(i) was not raised in Clevenger, and the court did not address it. Therefore, the instant case is not controlled by the decision in Clevenger, although much of the rationale of that case is persuasive. The question now before this court is one of statutory interpretation. Under K.S.A. 1983 Supp. 8-1567(i), the term “conviction” includes “entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of this section.” Must the diversion be completed before it operates as a “conviction” under the statute? The defendant argues that if the drafters of the statute had intended that the mere entry into a diversion agreement would be considered a “conviction,” they would not have needed the additional language “in lieu of further criminal proceedings.” The defendant points to the rule of statutory construction which states that effect must be given, if possible, to the entire act and every part thereof, and cites State v. Flummerfelt, 235 Kan. 609, 612, 684 P.2d 363 (1984), to support his argument. Since “further criminal proceedings” may be instigated up until the time the diversion is completed, the words “in lieu of further criminal proceedings” can only mean — according to the defendant — that the diversion has been completed. By focusing on the language “in lieu of further criminal proceedings,” the defendant has failed to read the operative language of the statute in its entirety. The whole phrase reads “entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of this section.” (Emphasis added.) If the drafters had ended the phrase after the word “diversion” (as defendant suggests they would have had they meant that simply entering into diversion operates as a “conviction”), it would have been possible to interpret the statute to mean entering into diversion on a charge other than for DUI. This was obviously not their intent. Therefore, the additional language “in lieu of further criminal proceedings on a complaint alleging a violation of this section” is necessary to specify what charge was diverted. Also, the language beginning “in lieu of’ was lifted directly from the diversion statutes (K.S.A. 22-2906 et seq.). For instance, K.S.A. 1983 Supp. 22-2909(c) provides: ”If a diversion agreement is entered into in lieu of further criminal proceedings on a complaint alleging a violation of K.S.A. 8-1S67 . . . , the diversion agreement shall include a stipulation.” (Emphasis added.) It is a well established canon of statutory construction that penal statutes are to be strictly construed against the State. State v. Dubish, 234 Kan. 708, 712, 675 P.2d 877 (1984). However, this rule of strict construction simply means that ordinary words are to be given their ordinary meanings. State v. Floyd, 218 Kan. 764, 766, 544 P.2d 1380 (1976). K.S.A. 1983 Supp. 8-1567(i) clearly states that “entering” into a diversion agreement is a conviction for purposes of enhancing sentence. If the drafters had intended that diversion would operate as a conviction only upon its completion, they could easily have said so. The rule of strict construction of penal statutes is also subordinate to the rule that judicial interpretation must be reasonable and sensible to effectuate legislative intent. State v. Fowler, 238 Kan. 213, 708 P.2d 539 (1985). In determining legislative intent, the court may properly look to the purpose to be accomplished, and the necessity and effect of the statute. State ex rel. Stephan v. Lane, 228 Kan. 379, Syl. ¶ 11, 614 P.2d 987 (1980). In Clevenger, 235 Kan. at 867, this court stated: “The nature of diversion in the context of DUI violations is particularly indicative of the diversion’s conviction-like natui'e. In order to enter into a diversion agreement, a defendant must stipulate to the facts constituting the offense. If the diversion program is not completed, a trial is had to the court based solely upon the stipulation. Thus, while there is not a guilty plea, there is an admission by the defendant of the commission of the offense.” The only real difference between diversion and being sentenced as a first offender (K.S.A. 1983 Supp. 8-1567[c]) is the incarceration. Under 22-2909(c), the defendant must pay the minimum statutory fine for a first offense or complete a set number of hours of community service, and he must enroll in and complete an alcohol and drug safety program. Moreover, the purpose behind the first offender sentence and the requirements of diversion are the same — both seek to rehabilitate. This court, in Clevenger, discussed the public policy behind considering a diversion a “conviction” for purposes of sentence enhancement and stated: “The intent of allowing diversion for the first DUI offense was the legislature’s recognition that although it had done away with plea bargaining, it deemed it appropriate to offer a less harsh option for a first offense. If, however, a defendant commits a second offense, there are no breaks. The purpose of sentence enhancement is to punish those who violate the law repeatedly. See State v. Lohrbach, 217 Kan. 588, 591, 538 P.2d 678 (1975). A repeated violator of the DUI law should be subject to sentence enhancement on a second offense regardless of whether the individual went to jail or sought diversion for the first offense.” 235 Kan. at 868. In view of the nature of diversion in DUI cases, and the public policy behind sentence enhancement in DUI cases, it is apparent that the legislature must have intended that once a defendant has entered into a diversion agreement, he will be considered as having been “convicted” for purposes of enhancing his sentence if he commits another DUI offense. There is no reason to presume the legislature intended that only a person who has successfully completed diversion should be treated as a repeat offender if he is again charged with DUI. Despite the clear meaning of the statute and the obvious intent of the legislature, the defendant contends that construing the statute as defining a diversion as a conviction prior to the completion of the diversion could result in various “absurd” consequences, and that a statute should be construed in such a way to avoid absurd results. The defendant first asserts that under the trial court’s interpretation of the statute he could have been sentenced as a third offender after having committed only two offenses: he received his first “conviction” when he entered into diversion, and his second and third when he plead guilty to both offenses. This argument is without merit. No court could consider a defendant twice convicted for the same offense when pronouncing sentence. The statute was not meant to be interpreted to bring about this “absurd” result. The defendant next asserts that if the mere act of entering into diversion is a “conviction,” absolutely no purpose is served by later trying the defendant on the stipulated facts if the diversion is revoked. By the same token, if the defendant’s diversion is revoked, he should be able to assert the defense of double jeopardy (since he has already been “convicted”) at his hearing on the stipulated facts. In asserting this argument, the defendant has forgotten that the diversion is considered a “conviction” only for purposes of sentence enhancement pursuant to 8-1567, and for purposes of determining whether he is a “habitual violator” pursuant to K.S.A. 8-285. If the diversion is revoked, the defendant must be tried on the stipulated facts. K.S.A. 1983 Supp. 22-2909(c). Since the defendant would not have entered a guilty plea prior to entering into diversion (K.S.A. 1983 Supp. 22-2910), it is possible the defendant may be acquitted on the charge. If he is acquitted, he will not be subject to sentence enhancement on a subsequent offense. If, however, he is found guilty, he will be subjected to the minimum penalties of 8-1567(c) and must be incarcerated. Moreover, his conviction will become a matter of public record. On the other hand, if the defendant successfully completes his diversion, the charges will be dismissed with prejudice. The fact that the defendant participated in diversion may then only be considered for purposes of enhancing sentence for a later DUI offense, or for determining whether he is a habitual traffic violator under 8-285. See K.S.A. 1983 Supp. 22-2911(d). For any other purpose, the defendant’s record will be cleared of his first DUI offense if he successfully completes diversion. Therefore, the defendant’s argument that no purpose is served by a hearing on the stipulated facts, subsequent to revocation of diversion, is without merit. Finally, the defendant asserts that an “absurd” result would follow if he commits a second DUI offense during diversion and is sentenced as a second offender based on the diversion being considered the equivalent of a “conviction,” but then he is later acquitted on the first charge. The simple rebuttal to this argument was stated in Clevenger, 235 Kan. at 868, as follows: “Should a defendant’s diversion later prove to be faulty for any reason, the defendant may use the new information to support an application for adjustment of sentence.” The defendant’s arguments have failed to show that the statute should not be interpreted according to its plain meaning. Therefore, we hold that, pursuant to K.S.A. 1983 Supp. 8-1567(i), entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of 8-1567 is to be considered a conviction for purposes of sentence enhancement. The judgment of the lower court sentencing the defendant as a second offender is affirmed.	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The opinion of the court was delivered by Miller, J.: This is a consolidated action to foreclose me chanics’ liens filed by the plaintiff, Star Lumber and Supply Company, Inc. After trial, judgment was entered against Star and foreclosure of its liens was denied. Star appeals, challenging the findings of the trial court and the reasons for its decision. The parties are Star Lumber, the plaintiff and lien claimant; the individual homeowners, whom we will presently identify in connection with each lien; Capital Construction Company, Inc., which built the homes and which formerly held legal title to the various tracts of land; the mortgagees; and a title insurance company. Capital filed for bankruptcy shortly after this action was commenced; Capital is not represented on appeal. Fidelity Savings Association of Kansas and Continental Illinois Bank and Trust of Chicago are the mortgagees on various properties, and Columbian National Title and Insurance Company insured the titles. The position taken by these companies parallels that of the homeowners. The facts are not in dispute. In August 1981, Capital was the record owner of two separate tracts of land. It entered into a contract with Geoffrey B. Payne and Cindy L. Payne to construct a home on one parcel. It entered into a separate contract with Clark A. Orebaugh and Sally L. Orebaugh to construct a home on another tract. Similarly, in September 1981, it entered into a contract with John E. Morrison and Shellee K. Morrison to build a home on a tract of land then owned by Shade Development Company. The date on which Shade conveyed the land to Capital is not reflected, but apparently that conveyance followed shortly after the execution of the contract. In early October 1981, Capital, the record owner of a fourth tract, entered into a contract with John A. Smith, Charles B. Smith and Sandra K. Smith to construct a home on that tract. None of the contracts were recorded. Capital contracted with Star Lumber for materials and in the winter of 1981-1982, Star delivered various items of lumber and materials to the four separate tracts. As construction progressed, the Paynes, the Orebaughs and the Morrisons, on separate occasions, visited the showrooms of Star and selected various components for their respective homes. All of the items furnished by Star were charged to Capital, and the records indicate to which of the four sites the items belong. Some items were picked up at Star’s place of business, but most were delivered by Star to the building sites. On February 16,1982, the deed from Capital to the Paynes was recorded. Similarly, a deed from Capital to the Orebaughs was recorded on February 9, 1982; a deed to the Morrisons was recorded on March 2, 1982, and a deed to the Smiths was recorded on April 5, 1982. After the Payne, Orebaugh and Morrison deeds were recorded, Star continued to furnish material to the respective jobs. The last material was furnished to each of those three jobs on March 9,1982. The last material for the Smith home was furnished on April 1,1982, four days before the Smith deed was recorded. Capital did not pay Star, and Star filed a separate mechanic’s lien against each property on April 23, 1982. Star’s lien statements against each property were similar. Each named Capital Construction Company, Inc., as the owner of the property and Star as the contractor and claimant; none of the lien statements named the then record title owners of the respective properties — the Paynes, the Orebaughs, the Morrisons or the Smiths. Each lien statement had appended to it a copy of a large number of invoices, each showing the items furnished to that particular tract, plus an adding machine tape of the total invoice charges, credits and balances due. The plaintiff brought four separate lawsuits to foreclose its liens. It joined as defendants various other lien claimants, but their claims have been disposed of and are not pertinent to this appeal. The homeowners, the lending agencies, and the title insurance company answered and the cases were tried to the court on October 24 and 25, 1983. On November 4, 1983, the trial court filed its order, denying relief to Star and granting judgment to the homeowners. It is from this order that Star appeals. The trial judge held that Star’s liens were invalid when filed. He held that the Paynes, Orebaughs, Morrisons and Smiths were the owners of the respective properties; that Capital was the contractor; and that Star was a subcontractor. He concluded that Star was required to file its lien as a subcontractor, pursuant to K.S.A. 60-1103. He further found that the lien statements were not verified when filed and were thus invalid for that reason. Additionally, he found that there was no valid evidence that the materials listed in the lien statements were delivered to any of the four job sites. Finally, he found that the lien statements were invalid since the officer signing them had no personal knowledge of the truth or correctness of the statements or their attachments, and he con- eluded that a lien statement signed only on information and belief is insufficient. The statutes with which we are concerned are K.S.A. 60-1101, -1102 and -1103. These statutes read: “60-1101. Liens of contractors; priority. Any person furnishing labor, equipment, material, or supplies used or consumed for the improvement of real property, under a contract with the owner or with the trustee, agent or spouse of the owner, shall have a lien upon the property for the labor, equipment, material or supplies furnished, and for the cost of transporting the same. The lien shall be preferred to all other liens or encumbrances which are subsequent to the commencement of the furnishing of such labor, equipment, material or supplies at the site of the property subject to the lien. When two or more such contracts are entered into applicable to the same improvement, the liens of all claimants shall be similarly preferred to the date of the earliest unsatisfied lien of any of them.” “60-1102. Filing and recording of lien statement, (a) Filing. Any person claiming a lien on real property, under the provisions of K.S.A. 60-1101, shall file with the clerk of the district court of the county in which property is located, within four (4) months after the date material, equipment or supplies, used or consumed was last furnished or last labor performed under the contract a verified statement showing: “(1) The name of the owner, “(2) the name of the claimant, “(3) a description of the real property, “(4) a reasonably itemized statement and the amount of the claim, but if the amount of the claim is evidenced by a written instrument, or if a promissory note has been given for the same, a copy thereof may be attached to the claim in lieu of the itemized statement. “(b) Recording. Immediately upon the receipt of such statement the clerk of the court shall enter a record in a book kept for that purpose, to be called the mechanic’s lien docket, which docket shall be ruled off into separate columns, with the headings as follows: ‘When filed,’ ‘Name of owner,’ ‘Name of claimant,’ ‘Amount claimed,’ ‘Description of property,’ and ‘Remarks’; and the clerk shall make the proper entry in each column.” “60-1103. Liens of subcontractors; limitations with respect to residential property, (a) Procedure. Any supplier, subcontractor or other person furnishing labor, equipment, material or supplies, used or consumed at the site of the property subject to the lien, under an agreement with the contractor, or a subcontractor of the contractor, may obtain a lien for the amount due in the same manner and to the same extent as the original contractor except that: “(1) The lien statement must state the name of the contractor and be filed within three months after the date supplies, material or equipment was last furnished or labor performed by the claimant; and “(2) if a warning statement is required to be given pursuant to subsection (c), there shall be attached to the lien statement the affidavit of the supplier or subcontractor that such warning statement was properly given. “(b) When a lien is filed pursuant to this section, the clerk of the district court shall enter the filing in the mechanic’s lien docket. The claimant shall (1) cause a copy of the lien statement to be served personally upon any one owner and any party obligated to pay the lien in the manner provided by K.S.A. 60-304, for the service of summons within the state, or by K.S.A. 60-308, for service outside of the state, (2) mail a copy of the lien statement to any one owner of the property and to any party obligated to pay the same by restricted mail or (3) if the address of any one owner or such party is unknown and cannot be ascertained with reasonable diligence, post a copy of the lien statement in a conspicuous place on the premises. The provisions of this subsection requiring that the claimant serve a copy of the lien statement shall be deemed to have been complied with, if it is proven that the person to be served actually received a copy of the lien statement. “(c)(1) A lien may be claimed pursuant to this section for the furnishing of labor, equipment, materials or supplies for the improvement of residential property only if the claimant has: “(A) Mailed to any one of the owners of the property a warning statement conforming with this subsection; or “(B) in the claimant’s possession a copy of a statement signed and dated by any one owner of the property stating that the general contractor or the claimant had given the warning statement conforming with this subsection to one such owner of the property. “(2) The warning statement provided for by this subsection, to be effective, shall contain substantially the following statement: ‘Notice to owner: (name of supplier or subcontractor) is a supplier or subcontractor providing materials or labor on Job No. _at (residence address) under an agreement with (name of contractor). Kansas law will allow this supplier or subcontractor to file a lien against your property for materials or labor not paid for by your contractor unless you have a waiver of lien signed by this supplier or subcontractor. If you receive a notice of filing of a lien statement by this supplier or subcontractor, you may withhold from your contractor the amount claimed until the dispute is settled.’ “(3) The warning statement provided for by subsection (c)(1) shall not be required if the claimant’s total claim does not exceed $250. “(d) Rights and liability of owner. The owner of the real property shall not become liable for a greater amount than the owner has contracted to pay the original contractor, except for any payments to the contractor made: “(1) Prior to the expiration of the three-month period for filing lien claims, if no warning statement is required by subsection (c); or “(2) subsequent to the date the owner received the warning statement, if a warning statement is required by subsection (c). “The owner may discharge any lien filed under this section which the contractor fails to discharge and credit such payment against the amount due the contractor. “(e) As used in this section, ‘residential property’ means a preexisting structure in which the owner resides at the time the claimant first furnishes labor, equipment, material or supplies and which is not used or intended for use as a residence for more than two families or for commercial purposes.” A Section 1101 lien statement arising out of a contract with the owner must be filed within four months after the last date on which material or supplies were furnished. A Section 1103 subcontractor’s lien, however, must be filed within three months after that date, and a warning statement and a copy of the lien statement must be served upon the owner. There is no dispute here but that the lien statements were filed less than two months after materials were last furnished. No copy of the lien statement and no warning statement were served upon the homeowners, who were the record owners when the liens were filed. We turn first to Star’s claim that the trial court erred in finding that the lien statements were invalid because they did not properly name the owners of the properties. Star Lumber relies upon Construction Materials, Inc. v. Becker, 8 Kan. App. 2d 394, 659 P.2d 243 (1983), in urging reversal. The homeowners rely upon Toler v. Satterthwaite, 200 Kan. 103, 434 P.2d 814 (1967), in urging affirmance. Each side contends that the case relied upon by the other is distinguishable. We find both cases helpful but not controlling here. In Construction Materials, Inc., Becker, a builder, bought a lot and built a duplex on it. He secured the building materials from Construction Materials, Inc. When the project was almost completed he entered into a contract to sell the improved property to Reese, he conveyed the lot to Reese by deed, and the deed was recorded. Some months later, Construction Materials filed its lien statement, naming Becker as the owner. Construction Materials then filed an action to foreclose its lien, naming Becker, Mr. and Mrs. Reese, and others as defendants. The trial court held that the lien statement was fatally defective; the Court of Appeals reversed, upholding the lien statement. The court concluded that Becker was the record owner and that he had entered into no contract to sell the property to others at the time he bought materials from the plaintiff. That was true until the structure was almost completed. Reese had no interest, legal or equitable, during most of the construction period. Becker was acting on his own behalf and not in the performance of any contractual duty owed to another person. We denied a petition for review on May 6, 1983. See 233 Kan. 1091. The factual background in Toler is much like the factual situation here. The Satterthwaites entered into a written contract with Bontz to purchase a home which was to be built by Bontz on a certain lot. Bontz then bought the lot and recorded its deed. Next, it bought materials from Toler and built the house. Finally, it conveyed the property to the Satterthwaites and they recorded their deed. Sometime thereafter, Toler filed a subcontractor’s lien under Section 1103, naming the Satterthwaites as the owners, Bontz as the contractor and Toler as the claimant and subcontractor. A copy of the lien statement was served upon the Satterthwaites. In the lien foreclosure suit that followed, the defense contended that Bontz, not the Satterthwaites, was the owner. The trial court upheld the lien and we affirmed. We held that during all of the time that the labor was performed and materials were furnished, the Satterthwaites had title to an equitable interest or estate in the property; their equitable interest in the property was increased as construction progressed, they were the record title owners of the property when the lien statements were filed, and, thus, the lien statement was in compliance with the statute. We said: “To hold that the appellees’ [Toler’s] lien statements must state the name of Bontz as the owner of the property would be to require something of them which the statute does not require; and to hold that a statement of the names of the appellant as owners at the time the lien statements were filed was insufficient, would be to deprive the appellees of liens when they had fully complied with the requirements of the statute.” (Emphasis supplied.) 200 Kan. at 110-11. Another factually similar case is Logan-Moore Lumber Co. v. Black, 185 Kan. 644, 347 P.2d 438 (1959). Prior to June 10, 1955, the Blacks entered into a contract with Lewis to build a house according to agreed specifications on a certain lot. They advanced some funds. Lewis then bought the lot, and on June 10, 1955, under contract with Lewis, Logan-Moore Lumber Company began supplying building materials for construction of the house. On November 29,1955, the lumber company made its last delivery of materials. The Blacks were then in possession of the premises. On December 16, 1955, the deed from Lewis to the Blacks was placed of record. On March 5, 1956, the lumber company filed a mechanic’s lien statement naming the Blacks as the owners. The lien statement was filed under what is now K.S.A. 60-1101 and -1102. It alleged that the materials were furnished under contract with the Blacks. It did not name Lewis either as owner or as contractor. Logan-Moore then sought to foreclose its lien, and during the pendency of that action was granted leave to amend the lien statement to substitute the name of Lewis as the owner rather than the Blacks. We reversed, holding that the lien statement was fatally defective when filed since the lumber company did not have a contract with the Blacks, and the amendment was improper and unauthorized. It would have the effect of creating a lien after the four-month period had expired. Syllabus ¶ 2 of the Black opinion is helpful. It reads: “Where an owner of a tract of land contracts to sell it to another and build a house on it for a single price he continues to be the owner until the deed is given, so that he may charge the property with mechanics’ liens as an owner, and the lien claimant need not serve a written notice of the filing of the lien upon the person intending to purchase the property.” 185 Kan. 644. Similarly, in Logan-Moore Lumber Co. v. Foley, 181 Kan. 984, 317 P.2d 467 (1957), we held that a Section 1101 lien statement could not be amended to insert the name of a contractor and thus convert the Section 1101 lien to a Section 1103 subcontractor’s lien, long after the time when a subcontractor’s lien could have been filed. The basis for a lien claimed under Section 1101 is a contract with the owner of the property and the furnishing of labor and materials used or consumed in improving that real estate. The basis for a subcontractor’s lien under Section 1103 is the furnishing of labor or materials to the contractor. Under the facts before us, Capital was the owner of each of the tracts of real estate. Its title was known to the public by virtue of its recorded deed to the premises. It was in possession and was making improvements on the property. Although it entered into contracts to convey each tract upon completion of construction, those contracts were not filed of record and were not notice to the public of the equitable interest of the purchasers. In addition to being the record owner, however, Capital was actually a contractor building the homes for itself and for the future homeowners. We conclude that under such circumstances, where the record owner of real property makes improvements thereon with materials furnished under contract by a supplier, and meanwhile the owner sells and conveys the real estate to third parties, the supplier may perfect a mechanic’s lien under either K.S.A. 60-1101 or K.S.A. 60-1103. The supplier may file a lien statement naming as owner the original record title owner with whom the supplier dealt or, as some of the other lien claimants in this action did, the supplier may file a subcontractor’s lien, designating the original record title owner and the subsequent pur chasers (the homeowners) as owners, and designating the construction company and former owner as contractor. Star chose the first alternative. We hold that Star Lumber did all that is required of it by statute in naming as owner Capital Construction, the record owner at the time it commenced and continued to make improvements on the property, and with whom plaintiff dealt, and thus the trial court erred in holding that the lien statements were invalid for failure to name the proper owner. We turn next to the question whether the lien statements were properly verified. All of the statements were signed by Robert Goebel, vice-president of Star, and bore the usual verification indicating that they were subscribed and sworn to on a given date before a notary public in Sedgwick County, Kansas. On direct examination, Goebel testified that when he signed the verifications in the attorney’s office, the attorney told him that the verifications were sworn statements and that he was under oath when he signed them. They waited until the attorney’s secretary was present because she was the notary public. Goebel testified that he was under oath when he signed the statements. On cross-examination he testified that he could not remember if he had been asked to raise his hand and be sworn. Based upon this testimony the trial court found that the statements “were not sworn to by the claimant nor was anything done which amounted to the administration of an oath before an officer having authority by law to administer and certify oaths and affirmations.” We believe this was error. The documents themselves, from their wording and from the signature and seal of the notary public, are prima facie evidence that the person signing the affidavit was properly sworn. A notary’s certificate, or jurat, is presumptive evidence that the oath was administered, and so long as the jurat is unimpeached it is conclusive. See 2A C.J.S., Affidavits § 39; 3 Am. Jur. 2d, Affidavits § 16. The witness testified that he was under oath when he signed the lien statements. The fact that he could not, some months or years later, recall precisely the procedure is not sufficient to overcome the presumption. There was no evidence that Goebel was not under oath when he signed the documents. The trial court also found that the lien statements were invalid because Goebel had no knowledge of the truth or correctness of the statements or their attachments. Goebel, as executive vice- president of Star Lumber, relied upon the company’s records and other officers and employees of the company who compiled them. The building supply business of today is much different from the small lumber yard, operated by a single proprietor, of yesterday. It is highly improbable that any single employee of a large supplier would have personal knowledge of the delivery of each item to a building site. To require that the individual signing the lien statement on behalf of a corporation have personal knowledge of the delivery of each item would constitute an impossible barrier. Business records, however, are kept of each transaction, and reference to those records must be made in order to determine what items were sold, where delivered, and to whom charged. In a large organization, possibly 30 or 40 or more people are involved. Goebel testified that he was familiar with Star’s business records and how they were kept, and that his verification was based upon those records and his knowledge and belief of their accuracy. The wording of the verification is distinguishable from that found in the case of Lewis v. Wanamaker Baptist Church, 10 Kan. App. 2d 99, 692 P. 2d 397 (1984). Just as business records are admissible in evidence as an exception to the hearsay rule, K.S.A. 1985 Supp. 60-460(m), we conclude that verification under oath, based upon those records, is sufficient. The lien statements were proper. The trial court found that Star failed to prove delivery of the materials and supplies to the four job sites. Star claims this was error. We therefore review the evidence. Copies of the invoices were attached to the lien statements, which showed the items delivered and the address to which they were delivered, and many showed the name of the person who signed the receipt for the items when they were delivered. Some of the homeowners visited Star and selected certain materials. The invoices show that those materials were delivered. Mrs. Polan, who works in Star’s credit department, testified that she was familiar with the plaintiff s record-keeping, and that the invoices reflected what had been ordered and where it had been delivered. Capital’s president testified that he contracted with Star for delivery of materials over quite a period of time, and that in his opinion the prices Star Lumber charged Capital were reasonable. He identified some of the names of persons who had signed the invoices, acknowledging that they were authorized to pick up and receive materials for Capital. There were some names, however, with which he was not familiar. He said on only a couple of occasions was there any question as to the delivery of the material listed; on those occasions the questions were resolved, to the best of his knowledge. He testified that Capital had an open account with Star. Capital had certain authorized people to sign for pickup, and orders would be placed by phone or in person. There was no evidence that any specific items included within the invoices or lien statements were not delivered to the particular job site to which they were assigned. There was no specific evidence from truck drivers or other personnel stating that a particular item was delivered to the job site or to representatives of Capital on a given date. The evidence, however, demonstrated a course of delivery over the entire period of time in which the homes were being built, by which Star would deliver upon request — either to the job site or to representatives of Capital — various building materials for use in each of the four separate projects. Most of the orders came by telephone. There was no delivery by Star to Capital’s warehouse or to any central distribution point; each invoice indicated the specific job site where the materials included in that invoice were destined. Viewing all of the evidence on the issue of delivery, including the business records of Star, we conclude that this evidence made out a prima facie case of delivery. There was no testimony controverting that evidence. Accordingly, we conclude that the trial court erred in finding that there was no proof of delivery. Finally, we turn to plaintiff s claim that the trial court erred in failing to grant default judgment against the Smiths. At the commencement of trial, the Smiths did not appear personally and plaintiff moved for a default judgment against them. The Smiths had previously filed an answer in the case and had appeared by counsel; counsel for Fidelity Savings appeared at the trial and informed the court that in a way he was representing the Smiths since Fidelity had an executory contract with the Smiths. K.S.A. 60-255(a) provides in substance that a written notice of a motion for default judgment must be served upon any party who has appeared in the action at least three days before the motion for default may be heard. There is nothing in the record before us to indicate that such notice was given to the Smiths. We conclude that the trial court did not err in refusing to grant Star a default judgment against the Smiths. We affirm the order of the trial court denying plaintiff s motion for default judgment as against the Smiths. We reverse the trial court’s order dismissing Star Lumber’s action in the four cases. 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The opinion of the court was delivered by Holmes, J.: The Kansas Department of Revenue (KDR or Department) appeals from an order of the State Board of Tax Appeals (BOTA) holding that advertising supplements of K-Mart Corporation (K-Mart) distributed in local newspapers across the state are not subject to the Kansas compensating or use tax set forth at K.S.A. 79-3701 et seq. K-Mart contested the KDR assessment of $25,198.00 tax and $9,165.00 interest for the period January 1, 1980, through December 31,1982. Upon appeal that assessment was abated by the BOTA. The KDR appealed that decision to the Court of Appeals pursuant to K.S.A. 1984 Supp. 74-2426(b)(2). The appeal was subsequently transferred to this court as provided by K.S.A. 20-3018(c). An identical factual situation was previously before this court in In re K-Mart Corp., 232 Kan. 387, 654 P.2d 470 (1982), hereinafter K-Mart I. The facts stated in K-Mart I were: “The dispute concerns the purchase, by K-Mart, of certain advertising circulars for distribution in Kansas. K-Mart, for reasons of economy, high-quality impact, and national uniformity of style, purchases the circulars from a print source in Michigan. The printer, pursuant to its contract with K-Mart, then drop-ships the circulars to various newspaper companies throughout the nation as designated by K-Mart. The newspaper companies then, pursuant to a separate agreement with K-Mart, insert the advertising supplements into certain editions of their papers for distribution to their subscribers and other consumers. No sales tax on the supplements is paid by K-Mart to the State of Michigan." In K-Mart I the BOTA had upheld the order of the KDR assessing the compensating tax and that order was upheld upon appeal to the district court. K-Mart’s appeal from the district court was dismissed due to a lack of jurisdiction based upon procedural deficiencies. It is noted that the statute which provided for appeals to the district court has been amended and that step in the appeal process has been eliminated for certain types of orders of the BOTA. See K.S.A. 1984 Supp. 74-2426(b)(2). Additional facts necessary for the resolution of the various issues on appeal will be set forth as they become necessary. K.S.A. 79-3703, which provides for the imposition of the compensating tax, provides: “There is hereby levied and there shall be collected from every person in this state a tax or excise for the privilege of using, storing, or consuming within this state any article of tangible personal property. Such tax shall be levied and collected in an amount equal to the consideration paid by the taxpayer multiplied by the rate of three percent (3%). All property purchased or leased within or without this state and subsequently used, stored or consumed in this state shall be subject to the compensating tax if the same property or transaction would have been subject to the Kansas retailers’ sales tax had the transaction been wholly within this state." It has long been recognized that the retailers’ sales tax act (K.S.A. 79-3601 et seq.) and the compensating tax act (K.S.A. 79-3701 et seq.) complement each other and are to be construed together. See J.G. Masonry, Inc. v. Department of Revenue, 235 Kan. 497, 680 P.2d 291 (1984), and cases cited therein. The compensating tax was enacted to assure that purchases outside of Kansas of tangible personal property, which is brought into and used in Kansas, are subjected to the same rate of tax as if the purchase were made within the state. As with the sales tax, the consumer or use tax is to be paid by the ultimate consumer of the product. K.S.A. 79-3705a; Southwestern Bell Tel. Co. v. State Commission of Revenue and Taxation, 168 Kan. 227, 233, 212 P.2d 363 (1949). K.S.A. 79-3702(b) provides that words and phrases defined in K.S.A. 79-3602 shall, when applicable, have the same meaning under the compensating tax act. K.S.A. 79-3602 provides, in pertinent part: “(e) ‘Retail sale’ or ‘sale at retail’ means all sales made within the state of tangible personal property or electrical energy, gas, water, services or entertainment for use or consumption and not for resale. “(1) ‘Ingredient or component part’ means tangible personal property which is necessary or essential to, and which is actually used in and becomes an integral and material part of tangible personal property or services produced, manufactured or compounded for sale by the producer, manufacturer or compounder in its regular course of business. The following items of tangible personal property are hereby declared to be ingredients or component parts, but the listing of such property shall not be deemed to be exclusive nor shall such listing be construed to be a restriction upon, or an indication of, the type or types of property to be included within the definition of ‘ingredient or component part’ as herein set forth: “(4) Paper and ink used in the publication of newspapers.” K.S.A. 79-3606 specifies certain exemptions from the tax and provides in part: “The following shall be exempt from the tax imposed by this act: “(m) all sales of tangible personal property which become an ingredient or component part of tangible personal property or services produced, manufactured or compounded for ultimate sale at retail within or without the state of Kansas; and any such producer, manufacturer or compounder may obtain from the director of taxation and furnish to the supplier an exemption certificate number for tangible personal property for use as an ingredient or component part of the property or services produced, manufactured or compounded.” The BOTA, in determining that the K-Mart advertising supplements were not subject to the compensating tax, concluded that the purchase of the supplements was not a “sale at retail” and, in addition, that the supplements are a component part of the newspaper. We now turn to the issues on appeal. Appellant asserts that the action of the BOTA was arbitrary because it failed to follow the earlier ruling in K-Mart I and did not articulate its reasons for not following the earlier ruling. The rule in Kansas, which is acknowledged by the appellant in its brief, is that the doctrine of stare decisis is inapplicable to decisions of administrative tribunals. Warburton v. Warkentin, 185 Kan. 468, 345 P.2d 992 (1959); Ryan, Kansas Administrative Law with Federal References p. 18-3 (2d ed. 1985). There is no rule in Kansas that an administrative agency must explain its actions in refusing to follow a ruling of a predecessor board in a different case or that it must articulate in detail why the earlier ruling is not being followed. The order in K-Mart I consisted of only three pages, completely lacked any authority to support either party’s position and concluded by summarily stating the supplements were not obtained for purposes of later resale nor were they an integral part of the newspaper. In comparison, the order in this case is comprehensive, examines cases and authorities from other jurisdictions and ultimately determines the issues in favor of K-Mart. We find no merit in appellant’s first issue. The next issue asserted by the KDR is that K-Mart’s contracting with the printers for the advertising supplements, and their later delivery to the newspapers for distribution, is a sale of tangible personal property at retail. K.S.A. 79-3704(b) exempts transactions “other than at retail; as defined in K.S.A. 79-3602” from the compensating tax. Appellant contends that K-Mart purchases the advertising supplements out of state and does not resell them to the newspaper. While this is true, it does not take into consideration the true nature of the advertising contracts between K-Mart and the newspapers. Generally, a newspaper contains three types of advertising supplements: supplements printed by printers and sold to advertisers; supplements printed by printers and sold to the newspapers; and supplements printed by the newspaper. Newspapers also contain run of the press (ROP) advertising, which is the advertising appearing on the same pages as the news articles and other features making up the main body of the newspaper. In addition to the three types of advertising supplements, there are other supplements which are not printed by the newspaper, such as the Sunday comics, Sunday magazine and weekly television schedules, which are also delivered as a part of the newspaper. All of the advertising, whether ROP or supplement, is charged by the newspaper to the advertiser on a per line or column inch basis. With supplements printed and paid for by the advertiser, in this case K-Mart, there is a 2% to 6% discount from the regular advertising rate because of the paper, ink and processing provided by the advertiser. Whether the supplement is supplied by the advertiser or the newspaper, the nature of the contract between the two is the purchase of advertising. Both parties agree that the purchase and sale of advertising within the state is not subject to the retail sales tax. The arguments of appellant ignore the basic principle that a sales or use tax is to be paid only once on any particular item and that payment is to be made by the ultimate consumer. In Southwestern Bell, 168 Kan. 227, the court explained the theory and application of the tax: “Thei'e is one basic principle about our sales tax act. It is that the ultimate consumer should pay the tax and no article should have to carry more than one sales tax. The intention was that in the various steps between a loaf of bread and the wheat field the person who bought the wheat from the farmer should not pay a sales tax nor the mill that bought it from the elevator man nor the jobber who bought the flour from the mill nor the baker who bought the flour from the jobber. To prevent such a result as nearly as possible, G.S. 1947 Supp. 79-3602(k) was enacted. It had to be so. It should be noted that for each step from the wheat field to the bakery the title to the wheat and flour passed. It was bought each time with the idea of the title passing and there being a resale. This is not true of the property in question here. When the telephone company buys a pole and sets it in the ground the pole belongs to it and the title does not pass to anyone of the telephone company’s service. When the baker buys a new oven or the shoemaker a new machine or the shirtmaker a new sewing machine, he pays a sales tax on these purchases because they are the ultimate consumers, the title has come to rest, no further transfer of title is contemplated.” 168 Kan. at 233. Thus it is clear that the intent of the statutes is that the ultimate consumer pays the tax. Generally, the principal source of income for a newspaper is its advertising revenue. It is the amount of this revenue which determines the ultimate price of the newspaper to the subscriber. While subscription prices do not fluctuate from day to day or month to month based upon the amount of current advertising, there is no doubt that the average revenue generated from advertising is a major factor in the ultimate determination of the subscription price. Preprinted supplements generate substantial advertising revenue for the newspaper and if they were not accepted and delivered as a part of the newspaper, rates to other advertisers or the subscription price or both would have to be higher to generate sufficient revenue to justify the continued existence of the newspaper. In Southwestern Bell, the court pointed out that the passing of title to the ultimate consumer was of significant importance. Here, there can be no doubt that title to the supplements ultimately vests in the subscriber who pays a sales tax upon his purchase of the entire newspaper, including the supplements. The KDR argues that when the printer bills K-Mart, the sale is complete and in support thereof points out that K-Mart pays the compensating tax on that portion of the supplements delivered to the K-Mart retail outlets for use therein. K-Mart readily concedes that each of its stores receives several copies of each supplement to be used by its employees and for the convenience of the customers. Obviously K-Mart is the ultimate consumer of those supplements and it has no objection to paying the tax thereon. A similar distinction was recognized in Sears, Roebuck & Co. v. State Tax Commission, 370 Mass. 127, 345 N.E.2d 893 (1976). In Sears, supplements distributed to Sears stores in Massachusetts were taxed, but Sears argued that supplements shipped to newspapers and inserted into the newspaper were not subject to sales or use tax. The Massachusetts court found that as the supplements furnished to the newspaper were part of the newspaper and that as the sale of newspapers was exempt from the tax, there was no tax owed by Sears on the supplements shipped directly to the newspapers. In Eagerton v. Dixie Color Printing Corp., 421 So. 2d 1251 (Ala. 1982), the court found that the subscriber or purchaser of a newspaper was the ultimate consumer, stating, “The individual who purchases a newspaper that contains the supplement, along with all other sections of the newspaper, is the ultimate consumer and pays a retail sales tax on that purchase.” p. 1253. We hold that the BOTA was correct in finding that the purchase by K-Mart of preprinted supplements is not subject to compensating tax as a “sale at retail.” The third issue raised by appellant is whether K-Mart’s supplement became an ingredient or component part of the news paper. K.S.A. 79-3606(m) exempts from tax “all sales of tangible personal property which become an ingredient or component part of tangible personal property . . . produced, manufactured or compounded for ultimate sale at retail . . . .” K.S.A. 79-3602(1) defines “ingredient or component part” as “tangible personal property which is necessary or essential to, and which is actually used in and becomes an integral and material part of, tangible personal property . . . manufactured or compounded for sale by the producer, manufacturer or compounder in its regular course of business.” In its order, the BOTA found that the K-Mart supplements are a component part of the newspapers into which they are incorporated and fall within the exemption provided in K.S.A. 79-3606(m). The BOTA’s conclusion is supported by Sears, Roebuck & Co. v. State Tax Commission, 370 Mass. 127; Eagerton v. Dixie Color Printing Corp., 421 So. 2d 1251; and Daily Record Co. v. James, 629 S.W.2d 348 (Mo. 1982). In Friedman s Express v. Mirror Trans. Co., 71 F. Supp. 991 (D.N.J. 1947), aff'd 169 F.2d 504 (3rd Cir. 1948), the court exempted trucks used to transport comic sections from the printer to the newspaper from coverage by the Interstate Commerce Act under a section for vehicles “used exclusively in the distribution of newspapers.” The court, in its opinion, described a newspaper: “The present-day newspaper, in addition to carrying ‘items of general news interest,’ contains enormous quantities of advertising, political comment, chess problems, cross word puzzles, what are called (and very often with lamentable inaccuracy) comics, and special features of unending variety. The sum total is known as a newspaper, and generally regarded as such. . . . Enormous amounts of advertising are the main source of revenue of dailies, weeklies and monthlies. . . . “All of this melange is contained in what are known as special sections of the paper. . . . Each section is thus an integral part of the newspaper, made so not because it is physically folded in a news section, but because it has assumed the character of the journal of which it is a part . . . .” 71 F. Supp. 991-992. In Eagerton, 421 So. 2d 1251, the court was faced with an advertiser who contracted with a printer to provide advertising supplements to newspapers. In Eagerton, the Alabama Commissioner of Revenue took almost an identical position to that of the KDR in the instant case. The court rejected the State’s contention that supplements were not component parts of a newspaper, stating: “The commissioner urges that Moore-Handley [the advertiser] did not manufacture any product in which it included the supplements and was, in fact, the consumer of these supplements. We agree that Moore-Handley did not manufacture the supplements, or any product of which they became a part, but we do not agree that it consumed them. The supplements were printed with the intended purpose of being inserted and resold as part and parcel of the newspaper. The commissioner acknowledges that had the newspapers purchased the supplements from the same printer for insertion in the newspaper, the ‘component part’ exemption would apply and no tax would be due. The supplements are just as much a part of the newspaper when ordered by Moore-Handley as they are when ordered by the newspaper. We see no reason why the tax consequences of identical transactions should differ, based entirely and solely on who makes the purchase.” 421 So. 2d at 1253. Appellant relies on a number of cases which have upheld the assessment of use tax on supplements. In K-Mart Corp. v. S.D. Dept. of Revenue, 345 N.W.2d 55 (S.D. 1984), the court refused to recognize that advertising supplements are component parts of newspapers for tax exemption purposes. Cf. Caldor, Inc. v. Heffernan, 183 Conn. 566, 440 A.2d 767 (1981); Ragland, Commr. v. K-Mart Corp., 274 Ark. 297, 624 S.W.2d 430 (1981). Obviously there is a division of opinion in the case law dealing with this question. The BOTA, in reaching its decision, relied on those cases which hold that a supplement is a component part of a newspaper. In particular, the BOTA adopted much of the reasoning found in Eagerton. We agree that the conclusions reached in Eagerton and similar cases state the better rule. Advertising, whether run of the press, preprinted supplements provided by the newspaper or preprinted supplements provided by the advertiser, is a component part of the newspaper and we so hold. Our determination of the foregoing issues requires affirmance of the BOTA order and we see no need to further extend this opinion. We have considered the other issues raised by the appellant and find them to be without merit. The order of the BOTA abating the assessment of compensating tax against K-Mart is affirmed.	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The opinion of the court was delivered by Miller, J.: Defendant Eldon E. Kee, Jr., was convicted by jury trial in Allen County District Court of theft, K.S.A. 21-3701, and, upon a separate trial, of making a false writing, K.S.A. 21-3711. Motions for new trial were denied. Defendant was sentenced, fined and placed on probation. He appeals from both convictions. The State cross-appeals from the granting of a directed verdict on one of the charges. The defendant was originally charged in a single information with seven felony counts. The first five counts alleged that he had stolen certain oil field equipment from two different leases, contrary to K.S.A. 21-3701. The sixth count alleged that he had made a false writing with the intent to induce official action, contrary to K.S.A. 21-3711. The seventh count alleged that he had committed theft by deception against the Western Fire Insurance Company, contrary to K.S.A. 21-3701. Upon motion of the defendant, the trial court severed count No. 6, the false writing charge. The theft charges were tried first, and defendant was convicted of the theft of oil field equipment as charged in count No. 5. About thirty days later, trial was held on the false writing charge, and defendant was again convicted. We will discuss first the errors claimed in the first trial, which resulted in the theft conviction. We need not concern ourselves with the charges of which defendant was acquitted, except as evidence of those offenses may be involved in particular arguments raised in this appeal. THE THEFT CHARGE Count No. 5 of the information charged in substance that in July 1983, in Allen County, Kansas, Eldon E. Kee, Jr., did unlawfully, feloniously and willfully obtain or exert unauthorized control over one Cook brand No. 16 oil pump jack having a value of more than $100, with the intention to permanently deprive the owner, Yankee Energy Group d/b/a Monarch Oil Resources, Inc., of the possession, use or benefit of that property. It was the State’s theory that Kee had ordered an employee, Rusty Beal, to remove the pump jack from the oil and gas lease where it was operating. Beal testified that he was an oil field supervisor, or crew chief, employed by Union Corporation and the defendant; he took his orders from the defendant. At Eldon Kee’s direction, Beal took a Cook pump jack from the Hendricks lease and moved it some forty or fifty miles to a farm owned by Jerry Burris, near Cherryvale. His father, Olan Beal, helped him move it. Olan Beal testified that he helped load and move the pump jack from the Hendricks lease, and that they unloaded it into a back corner of the Burris farm, in a location not visible from the roadway. Mrs. Constance Leudecke testified that she was the president of Yankee Energy Group, a corporation, and that Monarch Oil Resources, Inc., was a subsidiary of Yankee, operating in Kansas. She was the secretary of Monarch, and a member of its board of directors. She stated that Monarch owned an oil lease in Allen County, Kansas, known as the Hendricks lease. Four wells were drilled on this lease. Mrs. Leudecke testified that she purchased a Cook pump jack from B & B Steel of Yates Center, that the jack was placed on the No. 4 well on the Hendricks lease, and that oil was produced therefrom and sold. She identified, and there were received in evidence, invoices dated September 3, 1982, from B & B Steel to Monarch, showing the purchase price of the pump jack to be $2,880.40, and showing the price of related equipment, including a three-horsepower motor which was on the jack, to be $3,200.99. She made partial payment of about $1,000 to B & B on these invoices. She received a telephone call from Bernie Blevins, the owner of B & B Steel, in September 1983. He was angry because the pump jack was not on the lease and he thought she had sold it. She had not sold it and did not know it was gone. She was the only person who could have authorized the removal of equipment from the Hendricks lease, and she did not authorize Rusty Beal, Eldon Kee, or anyone else to remove that equipment. Bernie Blevins, a seller of oil field equipment, testified that he does business at Yates Center as B & B Steel. He sold Constance Leudecke two Cook pump jacks. One was a No. 16 jack, larger than most pump jacks used in that area. He thought this jack was put on the No. 4 well, furthest from the highway. When he heard that it was missing from the lease, he went out and checked; he then drove around other leases, looking for this particular pump jack, but did not find it. After looking for several days, he finally gave up. Mrs. Leudecke paid him for some of the first things she bought from him, but she has not paid for the pump jacks and other equipment and still owes him between ten and eleven thousand dollars. The first challenge is that the State did not present sufficient evidence to establish ownership of the pump jack. The information charged that the owner of the jack was Yankee Energy Group d/b/a Monarch Oil Resources, Inc. In State v. Pink, 236 Kan. 715, 729, 696 P.2d 358 (1985), we said: “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. [649, 667-68, 675 P.2d 848 (1984)]; State v. Douglas, 230 Kan. 744, 745-56, 640 P.2d 1259 (1982).” The testimony of Mrs. Leudecke and the invoices received in evidence, coupled with the testimony of Mr. Blevins, was sufficient to make out a prima facie case of ownership of the pump jack. Under the evidence, a rational factfinder could well have found that Yankee, doing business as Monarch, was the owner of the equipment. Kee also claims that the trial court erred in not instructing the jury on the lesser included offense of misdemeanor theft. He does not contend that the evidence was insufficient to establish the value of the pump jack at more than $100. Instead, he advances the novel argument that the purchaser did not completely pay for the pump jack and there were many liens against the leasehold estate and, thus, the owner’s interest in the pump jack had a net value of less than $100. We do not find this argument persuasive. It is the value of the personal property stolen, not the interest that the owner has in it, which determines the offense. K.S.A. 21-3701 provides in applicable part: “Theft of property of the value of one hundred dollars ($100) or more is a class D felony. Theft of property of the value of less than one hundred dollars ($100) is a class A misdemeanor.” (Emphasis supplied.) In this case, there was no evidence that even hinted that the pump jack was worth less than $100; value was not substantially in issue. An owner of a motor vehicle may owe more on the vehicle than it is worth; he or she, however, still remains the owner, and so long as the value of the car is more than the statutory amount, the car could be the subject of felony theft. Here it matters not that the owner had not fully paid for the pump jack; it is the value of that item, and not one’s interest therein, that determines whether its theft amounts to felony or misdemeanor. As his third point, defendant contends that the State committed reversible error by introducing evidence of a prior K.B.I investigation of him and evidence of prior crimes. The reference to the K.B.I. investigation came in during the testimony of Rusty Beal. The question and answer were as follows: “Q And when did you start working for Bluestem? “A Best of my remembrance it was some time in ‘81. It was when there was another KBI investigation going on at the time.” Defendant did not interpose an immediate objection, but at the next recess defendant moved for a mistrial. The trial court denied the motion. There was no reference by the witness to the defendant, and no indication as to what the investigation was about or who was the subject thereof. The statement was unsolicited, and it was vague. Under the circumstances we find no error in the court’s ruling, and no prejudice to the defendant. The prior crimes evidence complaint also arose during the testimony of Rusty Beal. Beal testified that he moved several pieces of equipment from the Watts lease at the direction of the defendant, including a 100-barrel oil tank. He testified that he removed some rejected oil from the tank and hauled it to defendant’s son’s lease and pumped it into his tank. This was done some thirty to sixty days before he removed the tank. Defendant was charged with theft of the 100-barrel tank but not with the theft of the oil therein. The removal of the oil was obviously accomplished in order to facilitate the moving of the tank. The movement of the oil was a part of the overall operation and the evidence was not introduced to show a separate offense. In State v. Gray, 235 Kan. 632, Syl. ¶ 2, 681 P.2d 669 (1984), we said: “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 them and the inference or result which they are designed to establish.” The evidence complained of was a part of the res gestae, and was admissible independently of K.S.A. 60-455. No limiting instruction was required. See State v. Gray, 235 Kan. 632, Syl. ¶ 3, which reads: “It is not error for the trial court to fail to give a limiting instruction on the purpose of evidence of other crimes when the challenged evidence is admissible independently of K.S.A. 60-455.” We find no error. Next, the defendant contends that the trial court erred in overruling his amended motion for new trial based upon jury misconduct and in overruling his motion to subpoena jurors pursuant to Supreme Court Rule 181 (235 Kan. cxviii). Defendant filed a motion for new trial which was overruled. He then filed an amended motion for new trial, stating merely that jurors interviewed admitted they had read a news article and were aware that the defendant was facing numerous other charges; that the State had provided statements to the press during trial which the State knew had the potential of affecting the fairness of the trial in progress; and that the foreman of the jury indicated in an interview that the fact there were other charges pending had an effect upon how the jurors decided this case. When the motion was heard, counsel argued that if the jurors were called to testify it was counsel’s belief, based upon interviews with the jurors, that they would testify that they read articles in the newspaper; that they knew the defendant was awaiting trial on additional counts; and that that had an influence on their decision. No affidavits of jurors or others were submitted to the court, no copies of the newspaper articles were offered in evidence and no evidence of any sort as to the statements allegedly made by the prosecution to the press or of juror misconduct was offered at the time of the hearing on the motion. Thus, the issue before us is not whether there was jury misconduct but whether a written motion and oral argument thereon — without any supporting affidavits or evidence — is sufficient to require the trial court to order that jurors be called for hearing on the motion for new trial. In the recent case of Walters v. Hitchcock, 237 Kan. 31, 697 P.2d 847 (1985), Syllabus ¶¶ 1 and 2 are instructive. They read: “In a hearing seeking an order recalling jurors for inquiry into alleged juror misconduct pursuant to Supreme Court Rule 181 (232 Kan. clvi), the burden is on the moving party to show the necessity for the order.” Syl. ¶ 1. “Generally, an affidavit of counsel containing statements purportedly made by jurors to the counsel is an insufficient basis on which to predicate error in a trial court’s refusal to issue an order pursuant to Supreme Court Rule No. 181 (232 Kan. clvi) for the recall of jurors for inquiry of alleged juror misconduct.” Syl. ¶ 2. Also the earlier case of Roy v. State, 213 Kan. 30, 514 P.2d 832 (1973), is particularly relevant. In that opinion we said: “Appellant next contends his constitutional rights were infringed upon by the prosecution releasing information on evidentiary matters to the press, and by juror misconduct in reading newspaper articles concerning the trial during recesses. We are concerned here with eighteen newspaper articles published during the period of approximately three years. We consider first the issue of juror misconduct. This court has consistently adhered to the well-settled principle applicable both to civil and criminal cases, that a juror’s reading of newspaper articles pertaining to the trial is not grounds for reversal, new trial, or mistrial unless the articles are of such a character that they might have resulted in prejudice to the losing party.” 213 Kan. at 32. Similarly, in State v. Fenton, 228 Kan. 658, Syl. ¶ 1, 620 P.2d 813 (1980), we said: “In recent years, this court has consistently adhered to the rule in both civil and criminal cases that juror misconduct is not a ground for reversal, new trial, or mistrial unless it is shown to have substantially prejudiced a party’s rights. The party claiming prejudice has the burden of proof.” The trial judge in the case now before us was not a resident of Allen County where the case was tried, and whether he was aware of the content of the newspaper articles referred to by counsel, we do not know. The articles themselves were not in evidence and are not a part of the record on appeal. Thus, we cannot tell whether the articles themselves were prejudicial. We are faced with the same situation as was the trial court: There is no evidence in the record to support this claim of error. The trial court did not err in refusing to authorize the calling of jurors or in overruling the amended motion for new trial. THE CROSS-APPEAL Before turning to defendant’s other contentions, all of which relate to the false writing conviction, we turn to the State’s cross-appeal which arose out of the theft trial. Prior to trial, the judge, on motion of the defendant, severed the false writing charge. The theft charges were to be tried first, the false writing charge at a later date. At the conclusion of the theft trial and after both parties had rested, the defendant moved for acquittal on the charge contained in count No. 7, theft by deception from Western Fire Insurance Company, for the reason that the State had presented no evidence of that offense. The trial court sustained defendant’s motion. The problem arose prior to trial when the secretary of the administrative judge wrote a letter to counsel giving them a schedule of trial dates set by Judge Ashley in the various Kee cases. She indicated that trial on the “five-count case” would commence on August 27, 1984. The State proceeded to present evidence of the theft charges included in count Nos. 1 through 5. Count No. 6 had been severed. Count No. 7 was also a theft charge and had not been severed. There was no discussion of this problem until all parties had rested and the matter was ready to be submitted to the jury. Defendant then made his motion for acquittal on count No. 7. Although the letter from the judge’s secretary was incorrect in stating trial would be on five counts instead of six, that letter cannot serve as an order of the trial court to sever one of the counts in the information. The granting to a single defendant of a separate trial upon one or more charges contained within an information lies within the sound discretion of the trial court, and a ruling thereon will not be reversed on appeal absent a showing of an abuse of that discretion. State v. Howell, 223 Kan. 282, 573 P.2d 1003 (1977). The State does not challenge the trial court’s severance of the false writing charge, but instead contends that the trial court abused its discretion under the circumstances in sustaining the motion for judgment of acquittal. It is clear that count No. 7 was not severed by the trial judge. The State offered no evidence to support that charge. There was no abuse of discretion in sustaining defendant’s motion for acquittal. Additionally, a judgment of acquittal entered by the trial court on a motion made by a defendant at the close of the evidence is final and not appealable by the State, except in those special circumstances when the question reserved by the State is of state-wide interest and is vital to a correct and uniform administration of the criminal law. State v. Lamkin, 229 Kan. 104, Syl. ¶ 3, 621 P.2d 995 (1981). We find no special circumstances here and nothing vital to a correct and uniform administration of the criminal law. The cross-appeal by the State must be dismissed. THE FALSE WRITING CHARGE Count No. 6 of the information charged in substance that on or about November 4,1983, in Allen County, Kansas, Eldon E. Kee, Jr., did unlawfully, feloniously and willfully, and with intent to induce official action, cause to be made or drawn a written instrument, being a note extension agreement between Dale D. McKinsey and the Bank of Bronson, with knowledge that said writing falsely represented some material matter, or was not what it purported to be. The evidence established that the defendant and his son, Lyle Kee, were officers and shareholders of the Bank of Bronson. Both had substantial loans from the bank, and defendant’s note had been extended. State bank examiners had recently examined the Bank of Bronson, considered it to be a problem bank, and directed it to correct certain matters. One of the matters criticized was the McKinsey loan, which was not secured and was not supported by documentation. Dale McKinsey sold his part of an oil and gas lease to Eldon and Lyle Kee. They paid McKinsey $75,000, and they still owed him $25,000. The Kees could not borrow further sums from the bank so they induced McKinsey to sign a note to the Bank of Bronson for $25,000. He received that money, completing payment for the lease. Lyle Kee promised McKinsey that he would pay the principal and interest on the note. Lyle did make one or more interest payments. When the note became due, it either had to be paid or an extension agreement secured in order to satisfy the bank examiners. The evidence was that defendant was quite concerned about the bank examiners. In order to keep the examiners from pursuing their objection to the McKinsey note, defendant directed Jiggs Butts to sign Dale McKinsey’s name to an extension agreement. Butts signed McKinsey’s name to the extension agreement and defendant then gave the document to an employee of the bank, instructing him to take it to the bank and to say that McKinsey had signed it. Most of the conversation relating to this matter was taped and the tape recording was introduced in evidence. McKinsey testified that the signature on the extension agreement was not his. Defendant’s first claim of error on the false writing conviction is that the statute under which the charge was brought is unconstitutionally vague. The statute, K.S.A. 21-3711, reads: “Making a false writing is making or drawing or causing to be made or drawn any written instrument or entry in a book of account with knowledge that such writing falsely states or represents some material matter or is not what it purports to be, and with intent to defraud or induce official action.” (Emphasis supplied.) The general rules of statutory construction were recently stated in State v. Thompson, 237 Kan. 562, 563, 701 P.2d 694 (1985): “This court adheres to the proposition that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and before the statute may be sticken down, it must clearly appear the statute violates the constitution. Moreover, it is the court’s duty to uphold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. City of Baxter Springs v. Bryant, 226 Kan. 383, 598 P.2d 1051 (1979). We have stated that 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.” The rules regarding vagueness and overbreadth are concisely stated in State ex rel. Murray v. Palmgren, 231 Kan. 524, 532, 646 P.2d 1091 (1982): “ ‘The test to determine whether a criminal statute is unconstitutionally void by reason of being vague and indefinite is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. If a statute conveys this warning it is not void for vagueness. Conversely, a statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process. At its heart the test for vagueness is a commonsense determination of fundamental fairness.’ State v. Kirby, 222 Kan. 1, 4, 563 P.2d 408 (1977).” And see also State v. Cantrell, 234 Kan. 426, 434-35, 673 P.2d 1147 (1983); J. G. Masonry, Inc. v. Department of Revenue, 235 Kan. 497, Syl. ¶ 3, 680 P.2d 291 (1984). One further familiar rule which should be mentioned is that a statute may be constitutional as applied to one set of facts and unconstitutional as applied to another. See State v. Smiley, 65 Kan. 240, 69 Pac. 199 (1902), aff'd 196 U.S. 447, 49 L.Ed. 546, 25 S.Ct. 289 (1905); U.S.D. No. 503 v. McKinney, 236 Kan. 224, 231, Syl. ¶ 5, 689 P.2d 860 (1984). We must, therefore, consider the statute in context, not in isolation. Defendant contends that the concluding phrase of the statute, “or induce official action,” is vague and ambiguous. We cannot see how the defendant in this case could have been confused or misled by that language. Defendant and his son were both officers of the Bank of Bronson, and as such were subject to a limitation on the amount of money each could borrow from the bank. The son was already over that limit. The McKinsey “loan” was actually a loan to defendant and his son, and represented money they had in effect borrowed from the bank to complete purchase of an interest in an oil lease. McKinsey was not the borrower; Lyle was the actual borrower, and Lyle was obligated to McKinsey to make payment of both principal and interest on McKinsey’s note. The bank examiners, of course, did not know the factual background behind the McKinsey note. When the note became due, defendant needed to have an extension agreement in the bank’s possession in order to prevent the bank examiners from further investigation into the McKinsey note. There was evidence that the defendant was concerned that the bank examiners would return the following Monday morning, and that he wanted the matter taken care of. For this reason he had someone else sign McKinsey’s name to the extension agreement. In other words, he caused this document to be falsified in order to appease the bank examiners, to prevent them from learning the truth about the McKinsey note, to keep them from taking official action which would have followed that discovery, and to entice them into approving the bank’s loan portfolio. “Official action,” as used in K.S.A. 21-3711, means acts which are authorized by law or which are done under color or by virtue of office. The state bank commissioner, the assistant commissioner and bank examiners are required by law to visit each bank at least every eighteen months, and may do so more frequently, for the purpose of making a full and careful examination of the condition of the bank’s affairs. They are authorized to administer oaths and to'examine the bank officers, directors and employees under oath. The examiner is required by law to prepare a written report which must contain a full, true and careful statement of the condition of the bank. See K.S.A. 9-1701 etseq., as amended. If the bank commissioner determines that a bank is conducting its business in an unlawful or unsound manner, he or she may, through a special deputy commissioner, take immediate charge of the operation of the bank. K.S.A. 9-1714. It is clear beyond dispute that bank examinations and proceedings conducted in connection therewith are “official action.” Under the facts before us, K.S.A. 21-3711 is not unconstitutionally vague or ambiguous. The making of a written instrument, knowing it to falsely state some material matter with intent to induce official action by a bank examiner, is clearly outlawed by the statute. The next issue raised is a claim that the trial court erred in denying the defendant’s motion for a bill of particulars. At the hearing on the motion, defendant’s counsel informed the court that what the defendant wanted was for the State to set out what official action the State was alleging that the defendant intended to induce' with the false writing. The trial court, after argument, denied the motion. The trial transcript in this case makes it abundantly clear what the State’s theory was, as we have noted in some detail above. The affidavit attached to the original complaint states in substance that the defendant told Butts to sign McKinsey’s name to the note extension so that Kee would not have to explain McKinsey’s overdue note, and that the Kansas bank commissioner was conducting an audit of the Bank of Bronson close to the time when the note extension was signed. While we do not have a transcript of the preliminary examination before us, the State contends in its brief that Stan Welch, a state bank examiner, testified at the preliminary examination and was available for cross-examination. At trial, Welch testified fully about the procedure followed by the auditors in reviewing the financial records of a bank, including review of documents supporting loans and the preparing of a written report which may criticize certain loans or loan practices. He stated that the approval or the criticism of a loan is an official act. K.S.A. 1984 Supp. 22-3201(5) provides in part that “the court may, on written motion of the defendant, require the prosecuting attorney to furnish the defendant with a bill of particulars.” Thus, whether under'the circumstances the prosecuting attorney should be required to furnish the defendant with a bill of particulars is a matter left to the sound discretion of the trial court. In this case the State could well have stated on the record, in answer to defendant’s query, precisely what official action the State contended the defendant attempted to induce. However, it is abundantly clear from the record what the State contended, and the defendant was in no way misled. We find no abuse of discretion on the part of the trial court in overruling the motion. Defendant contends that there was insufficient evidence to support his conviction on the false writing charge. We have already stated the rules to be applied and we have reviewed the evidence extensively and need not repeat it here. The evidence, when viewed in the light most favorable to the prosecution, is amply sufficient to convince this court, and does convince this court, that a rational factfinder could have found the defendant guilty of the false writing charge beyond a reasonable doubt. Finally, defendant argues that he was not brought to trial on the false writing charge within 180 days of arraignment and, therefore, the charge should have been dismissed. The 180-day time limitation, and exceptions thereto, are provided by K.S.A. 22-3402. That statute provides in applicable part: “(2) 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). “(3) The time for trial may be extended beyond the limitations of subsections (1) and (2) of this section for any of the following reasons: “(d) Because of other cases pending for trial, the court does not have sufficient time to commence the trial of the case within the time fixed for trial by this section. Not more than one continuance of not more than thirty (30) days may be ordered upon this ground.” Both parties agree that trial on the false writing charge, count No. 6, was originally set to commence on September 4, 1984, well within the 180-day limit. On that date, trial on the theft charges was still in progress. The trial judge’s minutes state: “9-4-84 Case scheduled for this date (false writing) continued on court’s order due to scheduling conflicts.” The trial was subsequently commenced early in October, well within thirty days after the expiration of the 180-day period after arraignment. Defendant has included as an appendix to his brief a copy of the trial judge’s notes. The September 4 notation is at the bottom of one page, in chronological order, and is printed, while the judge’s notes are for the most part in cursive writing. Defendant argues that “[I]t is obvious that someone had gone back to the trial judge’s notes and added an entry on September 4, 1984.” The printing is different from the handwriting above it; however, there is no showing that someone “had gone back” and made that entry. The notation may well have been made at the judge’s direction, or by him. There is no evidence to support this argument. There is nothing improper about the continuance in question. State v. Steward, 219 Kan. 256, 261-62, 547 P.2d 773 (1976), holds that a trial court may continue a case on its own initiative. There is no requirement that a formal hearing be held before a continuance is ordered. Scheduling conflicts — the continuance of the earlier case into the day allotted for trial of this case— would appear to be just the sort of situation contemplated by subsection (d) of the statute. We have considered other arguments advanced by the defendant, but find nothing improper in the matter. The judgment is affirmed, and the State’s cross-appeal is dismissed.	[ -16, -24, -7, 29, 12, -32, 42, -102, 65, -91, -26, 83, -51, -54, 5, 123, -61, 87, -11, 97, -10, -77, 79, -15, -42, -77, -7, -59, -70, 91, -90, -43, 8, -64, -54, 21, 6, 64, 71, -36, -114, 4, -88, -16, 89, 8, 36, 42, 54, 11, 113, 13, 115, 43, 24, -61, 109, 44, -21, -84, 73, -47, -29, 77, 79, 16, -94, 6, -100, 69, -40, 47, -104, -16, 32, -24, 115, -90, -122, 116, 111, -117, 9, 38, 98, 35, 29, -49, 108, -120, 31, -34, -97, -89, -104, 88, 107, 2, -98, -99, 115, 22, 15, -12, -30, -108, 95, 108, 2, -49, -48, -111, 13, 33, -120, -102, -21, 34, 48, 97, -51, -94, 93, 86, 122, 31, 79, -76 ]
The opinion of the court was delivered by Miller, J.: Glenna F. Nail was injured in a fall at her optometrist’s office. She brought suit in the district court of Ford County against the owner of the office building, Doctor’s Building, Inc., and two doctor tenants for damages. The case was submitted to the jury under comparative negligence instructions, pursuant to K.S.A. 60-258a, and the jury returned a verdict fixing plaintiff s damages at $312,000 and finding that she was 50% negligent. Since plaintiff s negligence was not less than that of the defendants, judgment was entered for the defendants. Plaintiff appealed, contending that the trial court’s instruction on comparative negligence was clearly erroneous. The Court of Appeals agreed and, in an unpublished opinion filed May 2, 1985, reversed the judgment and remanded for a new trial. We granted defendants’ petition for review. The pertinent portion of the statute reads: “60-258a. ... (a) The contributory negligence of any party in a civil action shall not bar such party or said party’s legal representative from recovering damages for negligence resulting in death, personal injury or property damage, if such party’s negligence was less than the causal negligence of the party or parties against whom claim for recovery is made, but the award of damages to any party in such action shall be diminished in proportion to the amount of negligence attributed to such party.” (Emphasis supplied.) Pattern Instructions for Kansas, Civil (2d ed. 1977), provides a suggested pattern instruction to be given in every comparative negligence case. That instruction, PIK Civ. 2d 20.01, reads: (1) “This case must be determined on the basis of comparative fault of the parties. In deciding the case you will need to know the meaning of the terms ‘negligence’ and ‘fault.’ ” (2) “Negligence is the lack of ordinary care. It is the failure of a person to do something that an ordinary person would do, or the act of a person in doing something that an ordinary person would not do, measured by all the circumstances then existing.” (3) “A party is at fault when he is negligent and his negligence caused or contributed to the event which brought about the injury or damages for which claim is made.” (4) “It will be necessary for you to determine the percentage of fault of the parties. It also will be necessary for you to determine the amount of damages sustained by any party claiming damages.” (5) “The laws of Kansas applicable to this case require me to reduce the amount of damages you have awarded to any party by the percentage of fault that you find is attributable to that party.” (6) “A party will be entitled to recover damages if his fault is less than 50% of the total fault of all parties. A party will not be entitled to recover damages, however, if his fault is 50% or more.” The trial court gave the first five paragraphs of this proposed instruction, but it omitted paragraph six. Thus the jury was informed (by paragraph 5) that the judge would reduce the amount of damages awarded to the plaintiff by the percentage of fault attributable to her; but the jury was not told (omitted paragraph 6) that plaintiff could recover nothing unless her fault was found to be less than 50% of the total fault. K.S.A. 60-251(b) provides: “60-251. Instructions to jury. . . . “(b) When waived. No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he or she objects and the grounds of his or her objection unless the instruction is clearly erroneous.” (Emphasis supplied.) During the trial of this case, plaintiff made no objection to the instruction as given, and thus appellate review is precluded unless the instruction was clearly erroneous. K.S.A. 60-251(b); and see Arterburn v. St. Joseph Hospital & Rehabilitation Center, 220 Kan. 57, 60-63, 551 P.2d 886 (1976); Prentice v. Acme Machine & Supply Co., 226 Kan. 406, 407, 601 P.2d 1093 (1979); Sieben v. Sieben, 231 Kan. 372, 375, 646 P.2d 1036 (1982). An instruction is clearly erroneous when the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility that the jury would have returned a different verdict. State v. Maxwell, 234 Kan. 393, Syl. ¶ 5, 672 P.2d 590 (1983), following State v. Stafford, 223 Kan. 62, Syl. ¶ 2, 573 P.2d 970 (1977). In this case the jury was instructed that the judge would reduce the amount of damages by the percentage of fault attributable to that party. The jury was thus assured that the plaintiff would receive a judgment for her damages, reduced by the percentage of her fault. That was not the result. Four jurors, signing almost identical affidavits, indicated that they intended to give plaintiff half of her damages, and that the verdict would have been different if the jury had known a 50% negligence verdict would give her nothing. A brief review of two earlier decisions will be helpful. In Thomas v. Board of Trustees of Salem Township, 224 Kan. 539, 582 P.2d 271 (1978), the trial court had given the jury in substance all of PIK Civ. 2d 20.01 set forth above, including paragraphs Nos. 5 and 6. We held that this was not error. Our ruling is concisely stated in Syllabus ¶ 2: “It is not error in a comparative negligence action under K.S.A. 60-258a for the trial court to inform the jury as to the legal effect of its special verdicts in the form of a general instruction advising the jury of the theory and legal effect of comparative negligence.” In the body of the opinion, Justice Prager, speaking for a unanimous court, anticipated precisely what happened in the case at hand when he said: “Whether to permit the jury to be informed as to the legal effect of its answers in a comparative negligence case is essentially a policy decision. We have considered the pros and cons and have concluded that it is not error for a trial court in this state to inform the jury as to the legal effect of its answers in a comparative negligence case, where a general instruction is given informing the jury of the theory and legal effect of comparative negligence as is done in PIK 2d (Civil) 20.01. We believe the better rule should be one based not on distrust of juries, but rather one which recognizes that jurors collectively represent the conscience of the community and will do their best to follow the law as contained in the instructions of the court. It seems to us that, as a matter of policy, it is better to have the trial judge explain the operation of the law to the jury rather than to permit the jury to speculate as to the effect of its findings in a comparative negligence case. The rule which forbids the jury to be informed of the legal effect of its answers assumes that a jury should not concern itself with the practical effect of its apportionment of negligence and that a jury will operate more effectively in a vacuum. In our judgment, the rule ignores the reality that jurors often do concern themselves with the practical effects of their findings, and without being informed by the court, will undoubtedly speculate as to the result of their verdict. Under the Kansas comparative negligence statute, if a jury finds that the defendant and plaintiff are equally at fault, the plaintiff recovers nothing. Expecting the defendant to recover fifty percent of his damages, the unknowingjury may insure that he receives nothing.” (Emphasis supplied.) 224 Kan. at 551. Salem Township was followed by Cook v. Doty, 4 Kan. App. 2d 499, 608 P.2d 1028, rev. denied 228 Kan. 806 (1980). That case was tried two months before our Salem Township opinion. The trial court refused to instruct the jury as to the effect of its allocation of fault on the award of damages. The Court of Appeals affirmed, holding that our decision in Salem Township need not be applied retroactively. The court’s opinion quoted Syllabus ¶ 2 from Salem Township, and then stated: “There was thus ample justification for the trial court’s decision in the state of the law at the time the decision was made, and even Thomas does not say it was error not to give the instruction. Nevertheless we read Thomas as promulgating a rule to be followed by our trial courts; a trial court refusing to give the substance of the PIK instruction in the face of Thomas would, in our opinion, face a sure reversal.” (Emphasis in original.) 4 Kan. App. 2d at 500. Upon a careful review of the record in this case, we hold that the instruction on comparative negligence as given by the trial court was clearly erroneous. The trial court erred in giving the next-to-the-last paragraph of PIK Civ. 2d 20.01 without giving the concluding paragraph. As given, the instruction misstated the law and we conclude that it misled the jury. In order to prevent misunderstanding by juries in the future, we adopt the rule suggested in Cook v. Doty: After the date of this opinion, PIK Civ. 2d 20.01, or the substance thereof, including both of the last two paragraphs, should be included in the jury instructions in all comparative negligence cases. Failure to so instruct the jury may well be reversible error. Three other issues were raised in the initial briefs of the parties, and were all correctly handled and decided by the Court of Appeals. We adopt that court’s resolution of those issues. The decision of the Court of Appeals is affirmed. The judgment of the trial court is reversed, and the case is remanded for a new trial. Schroeder, C.J., dissenting: After the jury heard all the evidence in this comparative negligence case, it was properly instructed on the law of negligence and fault. It was then instructed “to determine the percentage of fault of the parties.” The jury was also properly instructed “to determine the amount of damages sustained by any party claiming damages.” Further instructions in PIKCiv. 2d 20.01 relate to the duties of the judge after the jury makes its findings in accordance with the foregoing instructions. Application of the law to the facts found by the jury in this case permits the plaintiff to recover nothing. The substance of what the court has done in the majority opinion is to give the jury the opportunity to make its own law and give the plaintiff what the jury thinks the plaintiff should recover from the defendant in spite of applicable law to the contrary. Actually there is no point in having established laws to determine the rights of the various parties in a lawsuit, if jurors are permitted to determine both the facts and the law to be applied. The shortcut to this state of affairs would simply be to instruct the jury, after it hears the evidence, to go into the jury room and decide how much it wants to award as damages to any party claiming damages in the lawsuit. This seems to be our jury system as perceived by the court. See my dissenting opinion in Merando v. A.T. & S.F. Rly. Co., 232 Kan. 404, 418, 656 P.2d 154 (1982). There the jury was permitted to emasculate the law of comparative negligence when it awarded the plaintiff a big verdict which was not reduced by plaintiff s negligence. Where the jury has awarded the plaintiff excessive damages, the fact that the jury did not know the law because it was not instructed has been held immaterial and the jury award affirmed in Walters v. Hitchcock, 237 Kan. 31, 38, 697 P.2d 847 (1985). There the issue did not surface until misconduct of the jury was asserted on the motion for a new trial. It is respectfully submitted the judgment of the trial court should be affirmed and the judgment of the Court of Appeals should be reversed. McFarland, J., dissenting.	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The opinion of the court was delivered by Miller, J.: William H. Mason was convicted by jury trial in Leavenworth District Court of murder in the second degree, K.S.A. 21-3402, and aggravated burglary, K.S.A. 21-3716. He was sentenced on June 6, 1975, to serve a minimum term of fifteen years for the murder and a minimum term of five years for the aggravated burglary, the sentences to run concurrently and to commence as of March 1, 1974. (K.S.A. 21-4501 [Weeks], then applicable, fixed the maximum term for murder in the second degree at life imprisonment, and the maximum term for aggravated burglary at twenty years.) Notice of appeal was filed on June 11, 1975. The appeal, however, was not docketed until 1984, when an order was entered by this court granting leave to docket the appeal out of time. This is a direct appeal from the judgment of conviction and sentence. Defendant contends that the trial court erred in refusing to admit the results of a polygraph test, in refusing to instruct the jury on voluntary and involuntary manslaughter, in its instruction to the jury relating to the defendant’s confession, in improperly instructing the jury on the issue of intent, and in failing to instruct the jury that a killing, to constitute second-degree murder, must be intentional. Since defendant does not challenge the sufficiency of the evidence to establish the offenses, we need not discuss the evidence extensively. The seventy-six-year-old victim, Mrs. Barbara Chmidling, lived alone in her home in Leavenworth. She rented a nearby house to the defendant, William H. Mason, where he, his wife, and their eighteen-month-old daughter lived. On January 24, 1974, Kenneth Chmidling, son of the victim, became concerned when his mother did not answer her telephone or contact other members of the family. He went to his mother’s home, entered with his key, and found her body in the bedroom. Initially, no foul play was suspected. Mr. Chmidling called the undertaker, and he took the body to the funeral home. There, in preparing the body, the undertaker discovered that Mrs. Chmidling had been strangled by a green Army sock knotted around her neck. An intensive police investigation followed. Mrs. Chmidling’s billfold, a shotgun, and a coin collection were found to be missing from her home. On February 28, 1974, defendant was questioned by an agent of the K.B.I. at the Leavenworth police department headquarters. Defendant was first advised of his Miranda rights. He acknowledged in writing that he understood them, and he agreed to talk with the officer. The questioning began about 8:45 p.m. and concluded about 2:00 a.m. on the following morning, with a number of breaks being taken during the interrogation. Defendant confessed to the murder of Mrs. Chmidling by strangulation with a sock, and admitted that he took her wallet with him when he left the residence. There was no mention made in the statement about the shotgun or the coin collection. Defendant stated that he had thrown the billfold over a nearby bridge; none of the items were ever recovered. The evidence disclosed that the victim was raped, but the defendant denied that he had any sexual contact with her. The defense was that the defendant was innocent, and that he only gave the officers a confession because he was a confused and brain-damaged individual who did not handle stressful situations well and might agree to things that were not true in order to relieve stress and anxiety. Most of the facts of the crime had already been reported in detail in the local newspaper before defendant confessed, and it was argued that defendant got the details set forth in his confession from reading newspaper accounts of the atrocity. Defendant was only eighteen years of age at the time the offense was committed. There was evidence that he was a native of Indiana, serving in the United States Army at Fort Leavenworth at the time of the occurrence. He had not done well in school but had been active in Boy Scouts, and he had no prior criminal record. His wife found him to be normal and mentally alert in all respects. We turn first to the polygraph test result issue. Prior to his arrest, defendant was given a polygraph examination at the instigation of police officers. The test results indicated that the defendant had no guilty knowledge of the case. Defendant sought to introduce the result of the test into evidence, but the trial court refused to admit it. Defendant contends this was error. In State v. Wise, 237 Kan. 117, 123-24, 697 P.2d 1295 (1985), we recently stated our rule with reference to polygraph evidence. We said: “The Kansas rule has been frequently stated and is clear: In the absence of a stipulation between the parties, the results of a polygraph examination are not admissible in evidence. State v. Crossman, 229 Kan. 384, 389, 624 P.2d 461 (1981); State v. Nemechek, 223 Kan. 766, Syl. ¶ 3, 576 P.2d 682 (1978); and State v. Blosser, 221 Kan. 59, Syl. ¶ 1, 558 P.2d 105 (1976). Here there was no stipulation. To permit the defendant to introduce the results of the test, or even to refer to the giving of the test, would have been improper.” Similarly, there was no stipulation in the present case. The trial court did not err in refusing to admit the test results in evidence. Next, we turn to the defendant’s contention that the trial court erred by refusing to instruct the jury on the lesser included offenses of voluntary and involuntary manslaughter. The defendant did not testify in this case and we do not have the testimony of eyewitnesses to the occurrence. The evidence is that the victim was strangled; that strangulation caused her death; and that certain items were thereafter found missing from her home. There was no evidence of a sudden quarrel or heat of passion, and no evidence of an unintentional killing in the wanton commission of an unlawful act not amounting to a felony, or in the commission of a lawful act in an unlawful or wanton manner. In short, there was no evidence to support the giving of manslaughter instructions, and no evidence upon which the defendant might reasonably have been convicted of those offenses. Defendant contends that there was evidence that he had been drinking on the night of the homicide and that drunkenness may reduce homicide from murder to manslaughter. The defendant did state in his confession that he had had some drinks on the night in question. However, he did not claim that he was drunk or intoxicated. The only other evidence relating to his condition on that night was to the effect that he was normal, acted the same as he always did, talked with his wife and made sense, and that he was not drunk. We have held that voluntary intoxication may be used to demonstrate an inability to form a particular state of mind necessary for a specific intent crime. State v. McDaniel & Owens, 228 Kan. 172, Syl. ¶ 2, 612 P.2d 1231 (1980). However, to reduce a homicide from murder to manslaughter, drunkenness must be so extreme as to prevent the formation of an intent to kill. See State v. Crispin, 234 Kan. 104, 110, 671 P.2d 502 (1983), quoting from State v. Seelke, 221 Kan. 672, 678, 561 P.2d 869 (1977). There was no showing here that defendant was in that condition, and his memory of the events of the evening was remarkably clear. Under the circumstances, the trial court was correct in refusing the request to instruct the jury on manslaughter. We now turn to the defendant’s contention that the trial court erred in instructing the jury concerning the defendant’s confession. The trial court gave the jury a lengthy instruction requiring it to determine that the confession was voluntarily made before the jury might consider it in its deliberations. The defendant argues that the giving of this instruction was error for two reasons: First, it is the province of the judge and not the jury to determine the voluntariness of a confession; second, the instruction did not require the jury to weigh and determine the truthfulness and reliability of the confession. In support of the first of these contentions, the defendant relies upon Lego v. Twomey, 404 U.S. 477, 30 L.Ed.2d 618, 92 S.Ct. 619 (1972). That case, however, does not support defendant’s claim that it is error to submit the issue of voluntariness to the jury. Lego contended that even though the trial judge had ruled upon his claim of coercion in a Jackson v. Denno hearing, he was entitled to have the matter submitted to the jury and to have the jury decide the claim anew. The Supreme Court decided that Lego was not entitled to “a second forum for litigating his claim,” 404 U.S. at 490. Simply stated, the rule is that once a trial court has ruled upon the voluntariness of a confession at a Jackson v. Denno hearing, the accused is not entitled under the Constitution to have the matter resubmitted to and redetermined by a jury. Our court has also held that it is not necessary for a trial court to submit the issue of voluntariness of a confession to a jury, or to instruct on that matter. See State v. Stephenson, 217 Kan. 169, 173, 535 P.2d 940 (1975). See also State v. Shaffer, 229 Kan. 310, 624 P.2d 440 (1981); State v. Harwick, 220 Kan. 572, 552 P.2d 987 (1976); State v. Milow, 199 Kan. 576, 433 P.2d 538 (1967); K.S.A. 22-3215(5). The instruction given by the trial court in this case followed PIK Crim. 52.17 as it read at the time of trial. In response to Stephenson, that instruction was later removed and the PIK committee now recommends that a separate instruction on confession need not be given. The instruction as given in effect gave the defendant a second bite at the apple. Not only did the judge determine that the confession was voluntary, but the jury was given an opportunity to make its own determination on that issue and to reject the confession if the jury determined that it was not voluntary. Under the trial court’s instructions in submitting this issue to the jury, the only possible prejudice was to the State, not to the defendant. The second part of defendant’s attack on the confession instruction is that the jury was not told to weigh or determine the truthfulness or the reliability of the confession. To the contrary, we have held in several cases that a special instruction bearing on the credence to be given a confession is not required when the jury is given a general instruction bearing on the credibility of the testimony of every witness. See State v. Shaffer, 229 Kan. at 316, and State v. Harwick, 220 Kan. at 578. Here, the trial judge gave the jury the usual instruction: “It is for you to determine the weight and credit to be given the testimony of each witness.” We conclude that the instruction complained of was not error. Additionally, we note that no objection was made at trial to the instruction given, and there was no request for an instruction directing the jury to weigh the truthfulness and reliability of the confession. K.S.A. 22-3414(3) provides in applicable part that: “No party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he objects and the grounds of his objection unless the instruction is clearly erroneous.” The instruction given was not “clearly erroneous.” A more difficult issue is presented by defendant’s claim that the trial court erred in its jury instruction on intent. Again, there was no contemporaneous objection to the instruction as given. We therefore examine it to determine whether it was “clearly erroneous.” The instruction reads: “7. There is a presumption that a person intends all the natural and probable consequences of his voluntary acts. This presumption is overcome if you are persuaded by the evidence that the contrary is true.” This instruction is verbatim to PIK Crim. 54.01 as promulgated by the Pattern Jury Instructions Committee of the Kansas District Judges Association in the original volume of PIK Criminal, 1971. The trial court also instructed the jury as follows: “2. The law places the burden upon the State to prove the defendant is guilty. The law does not require the defendant to prove his innocence. Accordingly, you must assume that the defendant is innocent unless you are convinced from all of the evidence in the case that he is guilty. “You should evaluate the evidence admitted in this case and determine the innocence or guilt of the defendant entirely in accordance with these instructions. The test you must use is this: If you have a reasonable doubt as to the truth of any of the claims made by the State, you should find the defendant not guilty. If you have no reasonable doubt as to the truth of any of them, you should find the defendant guilty.” Four years after the trial in this case, the United States Su preme Court decided the case of Sandstrom v. Montana, 442 U.S. 510, 61 L.Ed.2d 39, 99 S.Ct. 2450 (1979). In that case, the trial court had given the jury a one-sentence instruction which parallels the first' sentence of instruction No. 7 above: “ ‘The law presumes that a person intends the ordinary consequences of his voluntary acts.’"” 442 U.S. at 513. Trial counsel in Sandstrom objected to the instruction on the ground that it impermissibly shifted the burden of proof on the issue of purpose or knowledge (intent) to the defendant. The Supreme Court reversed and remanded, holding that the instruction might have been interpreted by a reasonable jury as a conclusive presumption, or as one requiring the defendant to come forward with evidence to prove his mental state. Following Sandstrom, we were called upon several times to review cases in which an instruction along the lines of No. 7 above was given, and we held that the two-sentence instruction creates a permissive presumption and does not shift the burden of proof to the defendant. State v. McDaniel & Owens, 228 Kan. at 179-80; State v. Costa, 228 Kan. 308, 320, 613 P.2d 1359 (1980); State v. Egbert, 227 Kan. 266, 267, 606 P.2d 1022, cert. denied 449 U.S. 965 (1980); State v. Acheson, 3 Kan. App. 2d 705, 712-15, 601 P.2d 375, rev. denied 227 Kan. 927 (1979). Also, following the Supreme Court’s opinion in Sandstrom, the PIK Committee revised PIK Crim. 54.01 and since 1979 it appears as follows: “Ordinarily a person intends all of the usual consequences of his voluntary acts. This inference may be considered by you along with all the other evidence in the case. You may accept or reject it in determining whether the State has met its burden to prove the required criminal intent of the defendant. This burden never shifts to the defendant.” The revised instruction, of course, was not given in the case at hand. The Committee’s initial notes and comments to the revised instruction, however, are instructive. They read: “Notes on Use “The committee has revised the above instruction on the basis of State v. Acheson, decided by the Kansas Court of Appeals on October 15, 1979, 3 Kan. App. 2d 705, 601 P.2d 375 (1979) [following Sandstrom]. “This instruction must not be confused with PIK 54.01 — A, General Criminal Intent. The above instruction is a rule of evidence and does not fulfill the required element of criminal intent necessary for conviction in those cases where criminal intent is a necessary element of the offense. State v. Clingerman, 213 Kan. 525, 516 P.2d 1022 (1973). “Comment “The committee is of the opinion that the prior PIK 54.01 is not constitutionally defective, when considered with the other usual instructions given including the burden of proof and presumption of innocence. However, consistent with the Acheson case, this instruction is modified to ‘make it crystal clear that it is only a permissive inference, leaving the trier of fact free to consider or reject it. . . .’ “It is only where the jury might interpret the instruction as creating a conclusive presumption on the issue of intent and shift the burden of persuasion to the defendant, does Sandstrom v. Montana, 442 U.S. 510, 61 L.Ed.2d 39, 99 S.Ct. 2450 (1979), apply. In Sandstrom the Court held that the giving of the first sentence only of prior PIK 54.01 could infer to a jury that it was incumbent upon the defendant to prove the contrary by some quantum of proof. “Sandstrom is consistent with earlier Kansas cases holding that PIK 54.01 does not shift the burden to the defendant on the issue of intent. See State v. Warbritton, 211 Kan. 506, 506 P.2d 1152 (1973); State v. Lassley, 218 Kan. 758, 545 P.2d 383 (1976), wherein the Court held PIK 54:01 valid where the jury is informed that the burden to prove criminal intent is on the prosecution beyond a reasonable doubt and that the presumption does not dispose with this burden nor nullify the presumption of innocence; and State v. Woods, 222 Kan. 179, 563 P.2d 1061 (1977), reaffirming Lassley.” PIK Crim. 54.01 (1979 Supp.). After the briefs were filed in this case, the United States Supreme Court announced its opinion in Francis v. Franklin, 471 U.S. _, 85 L.Ed.2d 344, 105 S.Ct. 1965 (1985), and diligent counsel for the appellant have called that case to our attention as well as a more recent case of the United States Court of Appeals for the Tenth Circuit, which we will discuss later in this opinion. In Francis, the court stated the issue before it as follows: “This case requires that we decide whether certain jury instructions in a criminal prosecution in which intent is an element of the crime charged and the only contested issue at trial satisfy the principles of Sandstrom v Montana, 442 U.S. 510, 61 L.Ed.2d 39, 99 S. Ct. 2450 (1979). Specifically, we must evaluate jury instructions stating that: (1) ‘[t]he acts of a person of sound mind and discretion are presumed to be the product of a person’s will, but the presumption may be rebutted’ and (2) ‘[a] person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts, but the presumption may be rebutted.’ App. 8a-9a. The question is whether these instructions, when read in the context of the jury charge as a whole, violate the Fourteenth Amendment’s requirement that the State prove every element of a criminal offense beyond a reasonable doubt.” 471 U.S. at__(85 L.Ed.2d at 350.) It is interesting to note that intent was not only an element of the crime charged but “the only contested issue at trial.” The court noted that the instruction concerning the presumption was cast in mandatory language, followed by a statement that the presumption “may be rebutted.” The court concluded: “When combined with the immediately preceding mandatory language, the instruction that the presumptions ‘may be rebutted’ could reasonably be read as telling the jury that it was required to infer intent to kill as the natural and probable consequence of the act of firing the gun unless the defendant persuaded the jury that such an inference was unwarranted. The very statement that the presumption ‘may be rebutted’ could have indicated to a reasonable juror that the defendant bore an affirmative burden of persuasion once the State proved the underlying act giving rise to the presumption. Standing alone, the challenged language undeniably created an unconstitutional burden-shifting presumption with respect to the element of intent.” 471 U.S. at__(85 L.Ed.2d at 356.) The court then went on to hold that the trial court’s general instructions did not cure the defect and that, under the facts of the case, intent being the primary issue at trial, the giving of the instruction was not harmless error. Following the publication of the Supreme Court’s opinion in Francis, the United States Court of Appeals for the Tenth Circuit announced its decision in Wiley v. Rayl, 767 F.2d 679 (10th Cir. 1985). Wiley was convicted in the District Court of Butler County of rape and aggravated kidnapping. Upon exhaustion of his state remedies, he sought habeas corpus in the federal courts under 28 U.S.C. § 2254 (1982), contending among other things that his due process rights were violated by the trial court when it instructed the jury: “ ‘There is the presumption that a person intends all of the natural and probable consequences of his voluntary acts. This presumption is overcome if you are persuaded by the evidence that the contrary is true.’ ” 767 F.2d at 681. Wiley objected to the instruction at trial. The Kansas Supreme Court heard the case after the Sandstrom opinion was published and found no Sandstrom violation. State v. Wiley, No. 50,726, unpublished opinion filed July 18, 1980, cert. denied 449 U.S. 1087, reh. denied 451 U.S. 977 (1981). The Tenth Circuit, noting that intent was an issue and the challenged instruction was specifically argued to the jury in the prosecution’s closing argument, vacated Wiley’s kidnapping conviction. It found that the trial court’s instruction violated the rule of Francis v. Franklin, and “effectively removed from the state the task of proving, and from the jury the duty of determining, that the defendant had the requisite intent to kidnap.” 767 F.2d at 683. In Francis, the accused’s intent at the time the crime was committed was the only contested issue at trial. His sole defense was a lack of the requisite intent to kill. He offered evidence of lack of intent to kill. The facts did not overwhelmingly preclude that defense — Franklin had fired through a closed door, killing the victim who was inside. Here, in contrast, intent, while an element of the offense, was not the issue. Neither counsel mentioned intent to kill in closing argument. Neither referred to instruction No. 7 in argument. Unlike Francis, the jury in this case did not request a clarifying instruction on intent. The facts — victim strangled by a sock tightly knotted around her throat by an assailant — leave little room for argument on the intent issue. As in Francis, intent was an issue in Wiley, and the PIK instruction was specifically relied upon by the prosecution and emphatically called to the jury’s attention during closing argument. Under the facts, as the Tenth Circuit points out: “[T]he evidence was far from overwhelming that the victim unwillingly accompanied . . . Wiley to his trailer and that Wiley intended to rape her once they arrived.” 767 F.2d at 683. Further, Wiley objected to the instruction .at trial. In the case at hand, intent was not a hotly contested issue; intent — or lack of it — was not argued to the jury; the challenged instruction was not argued to the jury; and the evidence of intent was strong, as we noted above. Finally, Mason lodged no objection to the instruction at trial and none at the argument on his motion for a new trial. The instruction itself, while somewhat similar to that twice repeated in Francis, does not contain the “may be rebutted” language and instead tells the jury that the presumption “is overcome if you are persuaded by the evidence that the contrary is true.” This does not suggest to the jury that the defendant must come forth with evidence in rebuttal, but directs the jury to carefully weigh the evidence before applying the presumption. This means all of the evidence — the State’s evidence and the defendant’s evidence, if any. The jury must weigh the evidence and make that determination. “Rebut” implies a duty to come forward with contrary evidence, a shifting of the burden. Instruction No. 7 contains no such implication. It is reasonable to conclude that a rational person, under ordinary circumstances, does intend the natural and probable consequences of his or her voluntary acts. A person who en dorses a check and deposits it in the bank intends to secure credit for the amount of the check, and intends that the check will go through commercial channels to the bank of the drawer, where it will be debited against that person’s account. One who turns the knob and pushes obviously intends to open the door. One who aims a firearm at another, at point blank range, and pulls the trigger, intends to fire the weapon, to cause it to eject a projectile, and to have that projectile strike the other person. Likewise, one who wraps a sturdy cloth around the neck of another and pulls the cloth tight enough to interfere with that person’s breathing obviously intends that action to compress the neck of the victim and to cut off his or her supply of air. The evidence in a particular case, however, may indicate that the person did not know all of the facts or for some reason did not intend certain usual and ordinary consequences to follow. Thus, one must consider all of the attendant circumstances — weigh all of the evidence — in determining whether or not the ordinary presumption applies. Upon a careful examination of the jury instructions here given, the issues upon which this case was tried, the facts developed by the evidence, the arguments of counsel, and the case law cited above, we hold that instruction No. 7 does not state a mandatory presumption and does not impermissibly shift the burden to the defendant. The instruction, as given, was not “clearly erroneous” and, since no objection was lodged during trial, does not constitute reversible error under K.S.A. 22-3414(3). In State v. Knapp, 234 Kan. 170, 671 P.2d 520 (1983), Justice Holmes concisely stated in Syllabus ¶ 7: “In determining that a federal constitutional error constitutes harmless error, a court must be able to declare the error had little, if any, likelihood of having changed the result of the trial and the court must be able to declare such a belief beyond a reasonable doubt.” And see Chapman v. California, 386 U.S. 18, 17 L.Ed.2d 705, 87 S.Ct. 824, reh. denied 386 U.S. 987 (1967), where the court said: “[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” 386 U.S. at 24. Here we are of the belief beyond a reasonable doubt that a change in or a complete deletion of instruction No. 7 would not have changed the result of this trial. We therefore hold that in this case the instruction, if erroneous, was harmless error. Finally, defendant contends that the trial court committed reversible error because it failed to instruct the jury that a killing, to constitute murder in the second degree, must be intentional. There was no objection to the instruction given, therefore our review is limited to a determination of whether the instruction given by the court is clearly erroneous. State v. Maxwell, 234 Kan. 393, Syl. ¶ 5, 672 P.2d 590 (1983); K.S.A. 22-3414(3). This is the second-degree murder instruction given by the trial court: “4. The offense of murder in the first degree with which the defendant is charged in Count One of the information includes the lesser offense of murder in the second degree. If you do not find the defendant guilty of murder in the first degree, you shall consider if he is guilty of murder in the second degree. “To establish the charge of murder in the second degree, each of the following claims must be proved: “1. That the defendant killed Barbara Chmidling; “2. That such killing was done maliciously; and “3. That this act was done on or about the 24th day of January, 1974, in Leavenworth County, Kansas.” Tbe instruction is the one proposed in' PIK Crim. 56.03 as it existed at the time of trial. The court then defined “maliciously” in the following manner: “As used in these instructions the word ‘maliciously’ means willfully doing a wrongful act without just cause or excuse.” That instruction parallels PIK Crim. 56.04(a) as it then existed. The jury was thus instructed that the killing must be done maliciously, and that maliciously means willfully. Willfully, in common conversation, means deliberately and intentionally, governed by one’s will, and not by accident or chance. A trial court is not required to define words in common usage, words which are widely used and are readily comprehensible to the average person. State v. Griffin, 221 Kan. 83, 84, 558 P.2d 90 (1976). While the PIK committee has, since this trial, revised PIK Crim. 56.03 to include the word “intentionally,” the instruction on second-degree murder given in this case was not clearly erroneous and does not constitute reversible error. The judgment is affirmed.	[ -16, -30, -3, -65, 27, 96, -86, -72, 82, -31, -95, 123, -23, -37, 5, 105, 27, 45, 85, 105, -15, -105, 55, -63, -78, -13, 27, -43, -69, 95, -4, -65, 8, 96, 10, -43, -26, -118, 69, 92, -50, 5, -104, -13, -47, 82, 52, 105, -12, 15, -15, -98, -77, 42, 22, -57, 41, 44, 90, 45, 80, -71, -94, 5, -33, 22, -77, -122, -100, -81, 112, 38, -40, -75, 0, -24, 35, -122, -122, 116, 103, -119, -84, 102, 66, 33, 17, -20, 32, -103, 15, 118, -83, -89, -104, 56, 96, 32, 30, -1, 118, -12, 46, 124, -17, 6, 29, 100, -120, -49, -76, -111, -55, 124, -68, -104, -21, -91, 32, 113, -115, -30, 76, 99, 113, -69, -114, -80 ]
The opinion of the court was delivered by Prager, J.: This is a consolidated appeal of two criminal cases which arose following the deposit of an allegedly worthless check by the defendant, Peter Ringi, in a Wichita bank. For purposes of this appeal, the facts are undisputed and are essentially as follows: On the 24th day of January, 1984, defendant Ringi went to Eastside Bank and Trust in Wichita and deposited a check drawn on the Ringi Investment Account in the United American Bank of Memphis, Tennessee. The check, which was in the amount of $5,000, was deposited in Ringi’s business account at Eastside Bank and Trust. The evidence at the preliminary hearing showed that at the time the check was deposited the actual balance in the Memphis bank was well under $5,000. On the next day, January 25, 1984, the defendant went back to Eastside Bank and Trust and obtained a cashier s check in the amount of $7,000 from that bank based in part upon the deposit made the previous day. Then the Memphis bank check bounced. The funds in defendant’s account at Eastside Bank and Trust were insufficient to pay the cashier’s check issued on January 25, 1984. On August 30,1984, criminal Case No. 84 CR 1420 was filed in Sedgwick County charging defendant with giving a worthless check in violation of K.S.A. 1984 Supp. 21-3707. On November 8, 1984, a preliminary hearing was held. Defendant was bound over for trial on the charge of giving a worthless check. A jury trial was scheduled for January 7,1985. Prior to the trial date, the assistant district attorney and the defense counsel discussed the possibility that the defendant had not been properly charged, because he had not received anything of value from the bank at the time the Memphis bank check was deposited. A hearing was held before the Honorable Paul W. Clark on defendant’s motion to dismiss the charge. The basic legal argument made to Judge Clark was that on January 24, 1984, at the time the check was deposited defendant did not receive anything of value because the defendant did not receive the cashier’s check until the next day, January 25, 1984. Defendant contended that defendant should have been charged with theft by deception under K.S.A. 1984 Supp. 21-3701(b) and not on a worthless check charge. The court accepted the argument of the defendant and dismissed the worthless check charge. On January 8,1985, the State filed a new complaint/information in Case No. 85 CR 30, charging the defendant Ringi with theft by deception contrary to K.S.A. 1984 Supp. 21-3701(b). On January 31, 1985, a preliminary hearing was held before the Honorable Montie Deer on the charge of theft by deception and defendant was bound over for jury trial. On February 4, 1985, the State filed an appeal to the appellate courts from the order of the district court dismissing the worthless check charge in Case No. 84 CR 1420. Defendant then filed a motion to dismiss Case No. 85 CR 30 on the basis that the district court lacked jurisdiction over the case because of the appeal filed by the State in Case No. 84 CR 1420. On May 1, 1985, the Honorable James Beasley dismissed 85 CR 30 on the basis that the court lacked jurisdiction in view of the appeal in the prior case. The State then appealed the dismissal of Case No. 85 CR 30 and the two pending appeals were consolidated and transferred to the Supreme Court for hearing. We will first consider the appeal in Case No. 84 CR 1420. The basic issue presented in that appeal is whether the district court erred in dismissing that case in which defendant was charged with giving a worthless check under K.S.A. 21-3707 on the basis that the defendant did not receive something of value for the check at the time defendant issued and delivered the check for deposit to Eastside Bank and Trust of Wichita. The worthless check statute (K.S.A. 1984 Supp. 21-3707) provides as follows: “21-3707. Giving a worthless check. (1) Giving a worthless check is the making, drawing, issuing or delivering or causing or directing the making, drawing, issuing or delivering of any check, order or draft on any bank, credit union, savings and loan association or depository for the payment of money or its equivalent with intent to defraud and knowing, at the time of the making, drawing, issuing or delivering of such check, order or draft, that the maker or drawer has no deposit in or credits with the drawee or has not sufficient funds in, or credits with, the drawee for the payment of such check, order or draft in full upon its presentation. “(2) In any prosecution against the maker or drawer of a check, order or draft payment, of which has been refused by the drawee on account of insufficient funds, the making, drawing, issuing or delivering of such check shall be prima facie evidence of intent to defraud and of knowledge of insufficient funds in, or on deposit with, the drawee unless the maker or drawer pays the holder thereof the amount due thereon and a service charge not exceeding $3 for each check, within seven days after notice has been given to the maker or drawer that such check, draft or order has not been paid by the drawee. As used in this section, ‘notice’ includes oral or written notice to the person entitled thereto. Written notice shall be presumed to have been given when deposited as restricted matter in the United States mail, addressed to the person to be given notice at such person’s address as it appears on such check, draft or order. “(3) It shall be a defense to a prosecution under this section that the check, draft or order upon which such prosecution is based: “(a) Was postdated, or “(b) was given to a payee who had knowledge or had been informed, when the payee accepted such check, draft or order, that the maker did not have sufficient funds in the hands of the drawee to pay such check, draft or order upon presentation. “(4) Giving a worthless check is a class E felony if the check, draft or order is drawn for $150 or more. Giving a worthless check is a class A misdemeanor if the check, draft or order is drawn for less than $150.” The predecessor to K.S.A. 1984 Supp. 21-3707, which was G.S. 1915, § 3471, was construed by this court in State v. Avery, 111 Kan. 588, 207 Pac. 838 (1922). In Avery, the defendant contended that the offense of giving a worthless check is related to the false token and false pretense group of crimes, and, consequently, in order to constitute a crime, the check must be given with intent to defraud, and fraud must be accomplished by procuring money or other valuable thing. This court rejected that contention, holding that the purpose of the statute was to discourage overdrafts and resulting bad banking, to stop the practice of check-kiting, and generally to avert the mischief to trade, commerce and banking which the circulation of worthless checks inflicts. The statute was to be regarded as creating a new and distinct offense, and, therefore, it was not necessary that fraud had been accomplished by procuring money or other valuable thing. The worthless check statute was again before the court in Foor v. State, 196 Kan. 618, 413 P.2d 719 (1966). There the defendant entered a plea of guilty to issuing a $350 worthless check in violation of G.S. 1949, 21-554. Subsequently, defendant filed a motion to vacate the judgment and his sentence on the basis that he was not guilty of issuing a worthless check because he had received no money or valuable thing at the time the check was issued. The defendant had issued a check to a car dealer for a down payment on an automobile. The defendant argued that although he issued the check he received no money. The automobile was never titled in his name nor a finance plan consummated, and the automobile was returned to the dealership when the defendant was arrested. This court rejected the argument of the defendant, holding that the worthless check statute is not concerned with whether or not the offender was able to keep his ill-gotten gains and that it is the uttering, issuing, or delivering of the check which constitutes the offense. The statute in effect at the time the defendant deposited the Memphis bank check in this case on January 24, 1984, contained essentially the same language as the previous statutes. K.S.A. 21-3707 was amended effective May 17, 1984, but that amendment did not change the basic elements of the offense. The constitutionality of K.S.A. 21-3707 was upheld in State v. Haremza, 213 Kan. 201, 515 P.2d 1217 (1973). The statute was again before the court in State v. Powell, 220 Kan. 168, 551 P.2d 902 (1976). In Powell, it was held that the gravamen of the offense of giving a worthless check as proscribed by K.S.A. 21-3707 is the act of putting a negotiable check into circulation with knowledge that sufficient funds or credit are not on deposit to pay the amount specified in the instrument. The offense is complete when such an instrument is issued with intent to defraud, and it is not necessary to show that the check was presented for payment at the drawee bank in order to prove the crime. The court quoted State v. Haremza, 213 Kan. 201, where the court stated that: “ ‘The statutory elements of the offense are that the defendant issued a check, that the defendant knew there were insufficient funds in the bank at the time the check was issued and that the defendant did so with intent to defraud. When these elements are established the crime is complete.’ ” p.173. The most recent case interpreting the statute is State v. McConnell, 9 Kan. App. 2d 688, 688 P.2d 1224 (1984), which followed the decisions of this court previously handed down in Foot v. State, 196 Kan. 618, and State v. Powell, 220 Kan. 168. Based upon those decisions interpreting K.S.A. 21-3707 and its predecessors, we hold that it is not necessary for the worthless check or draft to be used to obtain possession of money or merchandise or anything of value in order to constitute the crime of passing a worthless check. K.S.A. 1984 Supp. 21-3707 (1) provides that giving a worthless check is the making, drawing, issuing, or delivering of any check, order, or draft on any bank, credit union, savings and loan association or depository for the payment of money or its equivalent with intent to defraud and knowing at the time of the making, drawing, issuing or delivering of such check, order or draft that the maker or drawer has no deposit in or credits with the drawee or has not sufficient funds for the payment of such check, order or draft in full upon its presentation. The words “for the payment of money or its equivalent” simply describe the type of instrument necessary for the offense to be committed. The check, order, or draft issued must direct the payment of money or its equivalent. The statute does not require that money or its equivalent actually be received by the defendant at the time the worthless check is issued or delivered. This interpretation is clearly required by the prior decisions of the Kansas appellate courts discussed heretofore. We hold that the district court erred in dismissing Case No. 84 CR 1420 on the basis that, at the time the check was issued and delivered by the defendant for deposit, he did not receive money or something.of value for the check. We turn now to the appeal from the order of the district court dismissing Case No. 85 CR 30 on the basis that the district court lacked jurisdiction in view of the State’s appeal then pending in the prior worthless check case, 84 CR 1420. In dismissing that case Judge Beasley made the following findings: “1. That the subject matter of the instant criminal proceeding is the same subject matter as the proceeding filed by the Sedgwick County District Attorney’s Office in 84 CR 1420, charging the defendant herein of the crime of giving a worthless check, contrary to K.S.A. 21-3707; “2. That 84 CR 1420 was dismissed on January 7,1985, by the Honorable Paul W. Clark, Judge of the Eighteenth Judicial District; that said dismissal is being properly appealed by the State of Kansas pursuant to K.S.A. 22-3602(b)(1); “3. That the State’s appeal in 84 CR 1420 causes jurisdiction of the subject matter of both 84 CR 1420 and 85 CR 30 to be only in the Supreme Court of the State of Kansas; that therefore, the Court should sustain the defendant’s motion to dismiss for lack of jurisdiction; “4. That permitting the prosecution to proceed in this case would compel the defendant to defend himself in two criminal courts at once upon the same subject matter; “5. That permitting the prosecution the opportunity to prosecute the defendant twice upon the same subject matter places an unfair financial burden upon the defendant; “6. That the State’s arguments have not satisfactorily resolved in this Court’s opinion the potential double jeopardy problems in proceeding in two prosecutions upon the same subject matter against this defendant.” We have concluded that the trial court erred in dismissing the prosecution for theft by deception as charged in Case No. 85 CR 30. It is clear the charge of theft by deception was a separate crime from the worthless check charge in the prior case. The worthless check was issued and delivered on January 24, 1984. The cashier’s check was obtained on January 25, 1984, by the defendant from the bank which relied on the $5,000 check deposited the previous day. Thus, according to the allegations of the complaints, the worthless check offense was committed on January 24,1984, and the crime of theft by deception occurred on a different day, January 25, 1984. The fact that Kansas has adopted a worthless check statute does not prohibit a prosecution under the theft by deception statute where the criminal acts occur on different days. There are a number of Kansas cases which hold that a person may be charged and convicted of obtaining money or property by false pretense where a worthless check is used in order to obtain the money. See, for example, State v. Hinshaw, 92 Kan. 1007, 142 Pac. 960 (1914); State v. Baker, 57 Kan. 541, 46 Pac. 947 (1896); State v. McCormick, 57 Kan. 440, 46 Pac. 777 (1896). In Boxer v. Kirkwood, 119 Kan. 735, 736, 241 Pac. 451 (1925), it was stated; “The mere giving of a check without qualifying words is said to amount to a representation that the funds to meet it are on deposit — sometimes with the alternative that the drawer has reasonable ground to believe it will be honored.” The Court quoted Eaton v. State, 16 Ala. App. 405, 406, 78 So. 321 (1918), to the effect that, “The giving of the check, if given without an explanation to the contrary, was in and of itself a representation, symbol, or token that the defendant had money on deposit in the bank on which the check was drawn.” The elements of theft by deception under K.S.A. 21-3701(b) are discussed in depth in State v. Finch, 223 Kan. 398, 573 P.2d 1048 (1978), where it is stated that in order to convict a defendant of theft by deception under K.S.A. 21-3701(b), the State must prove that the defendant with the required intent obtained control over another’s property by means of a false statement or representation. To do so the State must prove that the victim was actually deceived and relied in whole or in part upon the false representation. More recently in State v. Hamilton, 6 Kan. App. 2d 646, 631 P.2d 1255 (1981), it was held that to prove theft by deception under K.S.A. 21-3701(b), the representation must be of a past or present existing fact. An assurance as to a future transaction, however false or fraudulent it may be, is not a false pretense that lays the foundation for a criminal prosecution. At the present state of this litigation, we cannot determine the truth of the allegations contained in the informations charging issuance of a worthless check on January 24, 1984, and theft by deception for the cashier’s check obtained by the defendant from the bank on January 25, 1984. We simply hold that the two crimes are separate and independent and that defendant may be charged for both offenses. Under the circumstances, the district court erred in Case No. 85 CR 30 by dismissing the charge of theft by deception contained in the information in that case. For the reasons set forth above, the judgments in the district court in each of the two cases dismissing the charges are reversed. Both cases are remanded to the district court for further proceedings.	[ -80, -24, -24, -33, 10, -32, 42, -102, 27, -91, -80, 83, -87, -26, 4, 121, 82, 63, -44, 97, -34, -77, 39, 65, -38, -5, -87, -43, -71, -39, -28, -42, 74, 48, -94, 29, 102, 66, -57, 88, -114, 0, 105, -47, 121, -120, 32, -21, 1, 11, 49, -68, -13, 57, 26, 66, 105, 44, 27, -82, 64, -5, -113, 5, -35, 20, -93, 4, -118, 5, -8, 47, -40, 49, 2, -24, 115, -106, -126, 84, 107, -71, 13, 102, 98, 32, 52, -17, -96, -124, 22, -9, -99, -25, -80, 88, 1, 47, -98, -100, 119, 20, 14, -60, -21, 30, 57, 108, 3, -50, -48, -109, 13, 60, 14, -21, -17, -85, 0, 97, -114, -126, 92, 87, 58, 123, -82, -79 ]
The opinion of the court was delivered by Schroeder, C.J.: This is an appeal in a criminal action from a jury verdict finding Thomas P. Bird (defendant-appellant) guilty of criminal solicitation. K.S.A. 1984 Supp. 21-3303. The defendant was sentenced to a term of not less than two and a half and not more than seven years’ imprisonment. The defendant contends the trial court erred in numerous aspects, including the admission of certain hearsay statements of Lorna Anderson, the taking of and admission of deposition testimony of a State’s witness, the admission of evidence concerning Martin Anderson’s life insurance, and the failure to give certain cautionary instructions. In addition, the defendant contends the complaint information did not charge an offense, and that the prosecutor was guilty of misconduct during closing argument. The facts, which are complex, will be stated as briefly as possible since the defendant does not challenge the sufficiency of the evidence. The State’s case was developed primarily through the testimony of Darrel Carter. Mr. Carter was a life-long resident of Lyon County, Kansas, who worked as a self-employed business contractor at the time of trial. He had been married for nineteen years and had three children. He testified that he had become acquainted with Martin and Lorna Anderson through a social sorority. Although he at first claimed he was only socially acquainted with Lorna, he later admitted to having had sexual relations with her. Carter testified that in May 1983, Lorna approached him and asked him to meet with her at the Faith Lutheran Church in Emporia where she worked as the secretary. She did not tell him what the meeting would be about. A few days later, Carter went to the church as requested. He met with Lorna in her secretarial office and she introduced him to the pastor of the church, the defendant in this case. Lorna told Carter that the defendant was going to help them kill Martin Anderson. Carter initially said that he didn’t want to have anything to do with a murder. He then asked the defendant why he didn’t counsel Lorna and Marty or talk to Lorna about getting a divorce. The defendant told Carter that Lorna didn’t want a divorce because Martin Anderson had a large insurance policy and she wanted the money and not the divorce. The defendant also said that he loved Lorna and he was doing this to help her. The defendant said he planned to preside over the funeral so that he could be close to Lorna — he indicated that since he was the minister, no one would suspect him. When Carter asked them why they thought he’d participate in the plan as he’d never done anything like it and was not a cold-blooded killer, Carter testified the defendant said, “ T have — I haven’t either . . . I’m a man of God and I’m going to kill Martin Anderson.’ ” Carter then testified that the defendant and Lorna outlined two alternative plans to kill Martin Anderson. The first plan was to drug Anderson or get him drunk at his home, load him into his car, take him to a place in the country where there was a bend in the road and a bridge with a 50-foot drop-off into the water, and then push the car over the embankment. Carter was asked if he would be willing to pick the defendant up after he pushed the car over and bring him back to town, thus enabling Lorna to stay at home to establish an alibi. The second plan, which Carter was not asked to help with, involved the defendant’s faking a robbery and shooting Anderson to death in a house where Anderson stayed while attending his monthly military reserve meeting in Topeka. After hearing the plans, Carter became concerned for his own safety, and instead of giving them a definite answer, he said he needed some time to think it over. As he was leaving the church, the defendant told him if anyone asked him why he was there to tell them he’d been discussing the possibility of the church’s youth group selling fireworks at Carter’s annual fireworks stand. A few days after the meeting at the church, the defendant came to a job site where Carter was working and asked if he’d made a decision. Carter said that he had not made up his mind. Later, Carter telephoned the defendant and told him he would not help. Carter testified that neither the defendant nor anyone claiming to act on behalf of the defendant contacted him to advise him the defendant was no longer going ahead with the plan. Two other State’s witnesses testified that Carter had told them in May or June 1983, that he’d been asked to help kill someone. Neither of the witnesses knew whether or not to believe Carter. In November of 1983, Darrel Carter’s brother Dan was arrested in connection with the shooting death of Martin Anderson in Geary County earlier that month. Dan Carter confessed to having received money from Lorna Anderson. He was charged with conspiracy to commit murder. Darrel Carter contacted his attorney, Michael Patton, to represent Dan. Patton met with the Carter brothers at the Lyon County jail in the early morning hours of November 18, 1983. Darrel took Patton aside and said, “There’s a lot more involved here. This concerns the death of Reverend Bird — not the death of Reverend Bird, Sandy Bird; and the Reverend Bird is involved in this.” Darrel Carter then told Patton of his May meeting with the defendant and Lorna and about the two murder plans they had outlined. On December 1, the defendant contacted Jennifer Peterson, a woman with whom Darrel Carter was having a sexual affair, and informed her that he needed to talk to Darrel Carter. Jennifer Peterson relayed the message to Carter, who, in turn, informed his attorney. Patton notified a KBI agent, and it was decided that Carter should phone the defendant in order to set up a meeting. Carter did this and the phone call was recorded and later played to the jury. Carter and the defendant met in a parking lot on December 10, 1983. Their conversation was recorded and this was also played to the jury. The details of the recorded conversation are not pertinent for purposes of this appeal. Following Darrel Carter’s assistance to the KBI, Danny Carter pled guilty to the reduced charge of criminal solicitation and was released on four years’ probation. The balance of the State’s evidence was testimony that indicated the existence of a romantic involvement between the defendant and Lorna Anderson.. The purpose of this testimony was to establish a motive. Although Lorna Anderson was called by the State, she refused to testify, pleading the Fifth Amendment privilege against self-incrimination. The defendant took the stand on his own behalf. He claimed that the meeting with Carter was for the sole purpose of discussing whether the church youth group could sell fireworks at Carter’s stand. He also denied any involvement beyond that of boss-employee/counselor-client with Lorna Anderson. A good deal of his testimony was spent explaining what he had meant by various statements in the recorded conversation. After hearing the evidence, the jury found the defendant guilty of criminal solicitation to commit first-degree murder, and the defendant duly perfected this appeal. Further facts will be developed when necessary to discuss the issues raised. The defendant first contends that the information was defective in that it did not charge a crime or, if it did, was not of sufficient definiteness and certainty to apprise him of the nature and cause of the accusation. The original information charged: “[T]hat during the month of May, 1983 in Lyon County, Kansas, one THOMAS E. [sic] BIRD, then and there being, did then and there unlawfully and intentionally request another person, to wit: Darrel D. Carter, to aid and abet in the commission of a felony, to wit: first degree murder, contrary to the form of K.S.A. 21-3303, and against the peace and dignity of the State of Kansas. (Class D Felony)” An affidavit was attached to the information which specified the details of the meeting between defendant, Lorna Anderson, and Darrel Carter. It also detailed the alleged “plans” for the murder and the way in which Darrel Carter was to participate. A full preliminary hearing was held on May 31, 1984, and at that time the defendant heard the details of the State’s case. At no time did the defendant move for a bill of particulars or move to dismiss or quash the complaint pursuant to K.S.A. 22-3208(3). On July 20, 1984, a journal entry was filed which contained an amended information charging: “[T]hat during the month of May, 1983 in Lyon County, Kansas, one THOMAS P. BIRD, then and there being, did then and there unlawfully and intentionally encourage or request another person, to wit: Darrel D. Carter to aid and abet in the commission of a felony, to wit: first degree murder of Martin K. Anderson, contrary to the form of K.S.A. 21-3303, and against the peace and dignity of the State of Kansas. (Class D Felony.)” The journal entry was approved by both parties and by the district judge. The amended information was then read to prospective jurors in open court without objection by the defendant. The amended information — and its inclusion of Martin Anderson’s name in order to avoid confusion — was mentioned by the court during the discussion of proposed instructions. Again, the defendant did not object, but approved the instruction on criminal solicitation which named Martin Anderson as the intended victim. The defendant, on appeal, argues the information is fatally defective because it does not allege: (1) that the defendant’s conduct was felonious; (2) in what manner or means Darrel Carter was to aid and abet in the murder; (3) whom Darrel Carter was requested to aid and abet; and (4) whom the intended victim of the murder was. In a felony action, the indictment or information is the jurisdictional instrument upon which the accused stands trial. State v. Howell & Taylor, 226 Kan. 511, 601 P.2d 1141 (1979). A conviction based upon an information which does not sufficiently charge the offense for which the accused is convicted is void. Failure of an information to sufficiently state an offense is a fundamental defect which can be raised at any time, even on appeal. See K.S.A. 22-3208(3); State v. Robinson, Lloyd & Clark, 229 Kan. 301, 624 P.2d 964 (1981); State v. Minor, 197 Kan. 296, 416 P.2d 724 (1966). Sufficiency of the indictmentor information is to be measured by whether it contains the. elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet, and by whether it is specific enough to make a plea of double jeopardy possible. Russell v. United States, 369 U.S. 749, 763-64, 8 L.Ed.2d 240, 82 S.Ct. 1038 (1962). Although the accused has the right to know the nature of the charges against him, the information need not set forth all the specific evidentiary facts relied on to sustain the charge. However, if the allegations in an information fail to constitute an offense in the language or meaning of an applicable statute, the information is fatally defective. State v. Robinson, Lloyd & Clark, 229 Kan. 301; State v. Doyen, 224 Kan. 482, 580 P.2d 1351 (1978). In this state, the sufficiency of the information is governed by the guidelines of K.S.A. 1984 Supp. 22-3201(2), which provides: “The complaint, information or indictment shall be a plain and concise written statement of the essential facts constituting the crime charged, which complaint, information, or indictment, drawn in the language of the statute, shall be deemed sufficient.” This court has repeatedly held that an information which charges an offense in the language of the statute is sufficient. State v. Garner, 237 Kan. 227, 237, 699 P.2d 468 (1985); State v. Lucas, 221 Kan. 88, 89, 551 P.2d 1296 (1976); State v. Barry, 216 Kan. 609, 619, 533 P.2d 1308 (1974). In this case, the defendant was convicted of criminal solicitation in violation of K.S.A. 1984 Supp. 21-3303, which provides: “Criminal solicitation is commanding, encouraging or requesting another person to commit a felony, attempt to commit a felony or aid and abet in the commission or attempted commission of a felony for the purpose of promoting or facilitating the felony.” The information, as amended, clearly followed the wording of the statute and alleged each element of the offense. . Although the vyord “feloniously” was not used in the information, it was clearly stated that the charge was characterized as a felony. Since the statute does not include the word “feloniously,” it was not a fatal defect to omit it from the information, especially in light of the use of the words “unlawfully and intentionally” to designate the accused’s state of mind. Nor was it a fatal defect that the information did not allege in what manner or means Darrel Carter was to aid and abet in the murder. The information stated that the defendant intentionally requested Darrel Carter to “aid and abet” in the commission of a felony. This is an essential element of the crime of solicitation. It was unnecessary to add to this the evidentiary details of the “plans” in which Carter was asked to participate in order to charge a crime within the meaning of the statute. The term “aid and abet” has been defined by case law and statute. See State v. Burton, 235 Kan. 472, 681 P.2d 646 (1984); K.S.A. 21-3205. Moreover, it is a commonly understood term. Additional specificity was not required in'the information. Had the defendant wanted the “manner or means” specified to aid him in his preparation of a defense, he could have requested a bill of particulars pursuant to K.S.A. 1984 Supp. 22-3201(5). This he failed to do. The defendant also argues that the information did not charge a crime because it failed to allege whom Darrel Carter was to aid and abet. However, this fact is not a necessary element to the crime of solicitation as stated in K.S.A. 1984 Supp. 21-3303. Therefore, the information does not fail on this point. The defendant further argues that the information is fatally defective because it does not include the name of the intended victim. This argument is wholly without merit, as the amended information clearly sets forth the intended victim’s name. The defendant has failed to indicate to this court how he was misled or disadvantaged by the information. A full preliminary hearing was held and he was aware of the State’s evidence. The defendant at no time moved to quash the information or requested a bill of particulars. We conclude that this information, which employed fully the words of the criminal statute, was sufficient and within the guidelines of K.S.A. 1984 Supp. 22-3201(2). Since the information charged a crime, the defendant waived any further objections to the definiteness or certainty of the information by failing to raise these objections prior to submission of the case to the jury. K.S.A. 22-3208(3). The defendant next contends the trial court erred by permitting the State to proceed by deposition in the presentation of the testimony of Jennifer Peterson. Prior to the trial of this case, on July 20, 1984, the State moved to be allowed to depose Jennifer Peterson, a previously endorsed witness, pursuant to K.S.A. 1984 Supp. 22-3211. At that time, the prosecutor stated: “We are making our motion pursuant to K.S.A. 22-3211 which does provide for a procedure whereby a witness can be deposed in the event the Court were to find that the witness may be unable to attend or prevented from attending a trial or hearing; that the witness’s testimony is material and that it is necessary to prevent a failure of justice.” The court heard testimony from Ms. Peterson’s doctor, who was of the opinion that if she were to testify in a public trial, there was an 80% chance that she would have a nervous breakdown and that she might be unable to attend or give testimony. The doctor had been treating Ms. Peterson because she had become distraught, emotionally unsettled, anxious and depressed after an emotional disturbance at her home. Ms. Peterson told the doctor that her stress was caused by her marriage and her involvement in this case. The doctor had hospitalized Ms. Peterson in July and placed her on Triaval, an anti-depressive drug. He had subsequently released her from the hospital but she remained on medication. The doctor indicated that the drug would not affect Ms. Peterson’s ability to give testimony. The doctor was of the opinion that if she were to testify, her problems would recur. The doctor was unable to state whether it would be injurious to Ms. Peterson’s emotional health to be deposed, but he thought she would do better with a deposition than she would in open court. Following this testimony, the prosecutor informed the court that: “[T]he testimony will show that on or about the first day of December of 1983 that the Defendant went to the residence of Jennifer Peterson; that she resided approximately three houses south of the Defendant’s residence here in Emporia; that he went to the residence of Jennifer Peterson, had a conversation with Jennifer Peterson and the Defendant indicated that he would like to reaffirm a trust or a friendship with Darrel Carter and he asked Jennifer Peterson to relay this message to Darrel Carter inasmuch as he felt confident she would be seeing him. Jennifer Peterson indicated that she would have Darrel Carter call the Defendant, and the Defendant at that time in a rather nervous fashion said, ‘No, no phones;’ and he wanted the contact made in some other way. Jennifer Peterson will testify, in the State’s belief, that she thereafter did in fact relay this conversation which she had with the Defendant to Darrel Carter and consequently and thereafter, Darrel Carter did indeed contact the Defendant. In addition, Your Honor, this thing is woven into the taped transcript which the State intends to offer at the time of trial. There was reference at the time of the conversation which was tape recorded between the Defendant and Darrel Carter and which the State does intend to introduce that in fact — and I can’t recall the exact wording and I don’t have that transcript. It was something to the effect that Darrel Carter said, ‘The party that told me doesn’t know anything about that;’ and the Defendant at that time indicated that he was playing an ace in the hole when he contacted Darrel Carter by the use of Jennifer Peterson. I feel the testimony will also show that Jennifer Peterson and Darrel Carter were at one point at least or I should say the testimony would show that Jennifer Peterson and Darrel Carter had previously had sexual relations.” The defendant then argued that Jennifer Peterson was not an “essential witness” as that term is used in K.S.A. 1984 Supp. 22-3211(4), and, therefore, it was improper to allow her to be deposed. The court sustained the State’s motion to take the deposition pursuant to K.S.A. 1984 Supp. 22-3211, but reserved for trial the issue of the admissibility of the deposition. At the time of trial, the judge stated the defendant’s only question with respect to the admissibility of the deposition was whether or not Jennifer Peterson was an “essential witness.” The court ruled that she was and then allowed her deposition to be read into evidence. The defendant now argues that the trial court erred by finding Jennifer Peterson an “essential witness” and, therefore, it was error to allow her deposition to be taken. Further, the defendant argues that the use of the deposition at trial was a denial of his Sixth Amendment right to confront witnesses. K.S.A. 1984 Supp. 22-3211 sets forth four situations in which a witness’ deposition can be taken in a criminal proceeding. Subsection (1) provides that upon motion of the defendant, the court may order the deposition if it appears the witness will be unavailable, that this testimony is material and that it will prevent an injustice. Subsection (1) is not applicable in this case. Subsection (2), which is also inapplicable, deals with when the witness himself moves to be deposed. Subsection (3) sets forth the situation when a prosecutor may have a witness deposed. It provides: “The prosecuting attorney may apply to the court for an order authorizing the prosecuting attorney to take the deposition of any witness for any of the reasons and subject to the limitations stated in subsection (1). Upon the filing of such application, the court shall set the matter for hearing and shall order the defendant to be present at such hearing. If, upon hearing, the court determines that a prospective witness may be unable to attend or prevented from attending a trial or hearing, that the witness’ testimony is material and that it is necessary to prevent a failure of justice, the court may authorize the prosecuting attorney to take the deposition of the witness.” (Emphasis added.) Subsection (3) gives a trial judge the discretionary power to permit the taking of a deposition of a witness. Finally, subsection (4) provides that the prosecutor may seek a deposition in a felony case if the witness sought is an “essential witness.” If the court finds the witness is essential, it shall permit the deposition; the court has no discretionary power if the court finds the witness is essential. “Essential witness” is defined by K.S.A. 1984 Supp. 22-3211(10). There seems to be a discrepancy between the parties in this case as to whether the State was proceeding under subsection (3) or (4). The defendant assumes that thé State was using subsection (4) and, since Jennifer Peterson was not “essential,” the deposition was improper. The trial judge, at the time of trial, stated that Ms. Peterson was an “essential witness.” It seems apparent to this court, after reading the State’s motion, that the State was requesting the court to permit a deposi tion pursuant to K.S.A. 1984 Supp. 22-3211(3). The State specifically followed the statutory language in stating its motion. Evidence was presented to establish that the witness would probably be unable to attend because of sickness. The prosecutor outlined the witness’ testimony in order to establish its materiality. The court then exercised its power of discretion and permitted the taking of the deposition. The deposition was properly taken under K.S.A. 1984 Supp. 22-3211(3), and as defense counsel acquiesced in the fact the witness was too sick to testify at trial, the deposition was properly admitted at trial. See K.S.A. 1984 Supp. 22-3211(8)(c). The trial judge’s statement at trial that the witness was “essential” was unnecessary. In State v. Schlicher, 230 Kan. 482, 485, 639 P.2d 467 (1982), this court stated: “[G]ranting the right to take depositions in criminal cases is discretionary with the trial court. The court’s ruling is to be based on the possible unavailability of the witness at the trial.” (Emphasis in original.) We find that the trial court did not abuse the exercise of its power of discretion in allowing Jennifer Peterson to be deposed. The probability of her unavailability was established at the hearing. Her testimony supported the testimony of Darrel Carter about the events leading to the taped conversation and was thus material. Justice was best served by allowing the deposition. Therefore, the requirements of K.S.A. 1984 Supp. 22-3211(3) were met. In State v. Hernandez, 227 Kan. 322, 607 P.2d 452 (1980), this court held that the use of a deposition taken pursuant to 22-3211 does not deprive a defendant of his constitutional right to confront the witness. We noted that a deposition taken pursuant to 22-3211 by its very nature presupposes a strong possibility that the deposition may be used at trial in lieu of the witness; the purpose of 22-3211 is to perpetuate testimony and, therefore, counsel must proceed accordingly. 227 Kan. at 327-28. The defendant was present at the taking of the deposition where the witness was thoroughly cross-examined by the defense counsel. Further, the defendant himself testified — on direct examination — about his meeting with Jennifer Peterson. Moreover, the defendant did not object when the court ruled that the deposition could be read into evidence. Accordingly, we find the defendant was not prejudiced by the use of this deposition at trial. The trial court did not err by ordering the deposition to be taken or by having it read into evidence. The defendant next contends that the trial court erred in allowing certain witnesses to testify as to statements made to them by Lorna Anderson. Darrel Carter, Jan Mead, and Esther Aldrete each testified to statements made to them by Lorna Anderson at times prior to the May meeting when the solicitation allegedly occurred. The defendant argues that all of these statements were erroneously admitted because Lorna Anderson was not charged as a coconspirator in the crime — or identified as a non-charged coconspirator — and the statements were made prior to the conspiracy. Therefore, he contends, the hearsay statements did not meet the requirements of K.S.A. 60-460(i)(2) (the conspiracy exception to the hearsay rule) and should not have been admitted. Defendant first claims error in the court’s admission of testimony by Darrel Carter as to Lorna Anderson’s initial contact with him in early May to set up the meeting at the church. However, the defendant made no contemporaneous objection at the times these questions were asked at trial. Because the defendant failed to make timely, specific objections to the testimony he now urges was erroneously admitted, the point is not properly before this court on appeal. State v. Murdock, 236 Kan. 146, 153, 689 P.2d 814 (1984); K.S.A. 60-404. The defendant next contends the court erred in allowing Jan Mead to testify concerning statements made to her by Lorna Anderson concerning Lorna’s “affair” with the defendant. Jan Mead, who lived in Wichita and supervised Lorna’s work in the Heart Association campaign in Emporia, was permitted to testify that on January 27,1983, she and Lorna went to a local club for a drink and the conversation turned to men. Lorna confided in Jan Mead about some of her extramarital affairs and her unhappy marriage. Lorna continued to confide in Jan Mead and in February or March, her conversations began to focus on one individual. It was in February that Jan learned Lorna was working part time at the church; Jan testified that, in explaining her job, Lorna said, “ ‘Tom and I are seeing each other, and this is one chance that we have to be alone and I enjoy working there.’ ” Jan further testified that in March, Lorna began using her part-time work for the Heart Association as an excuse for afternoon trips to Wichita or Topeka. According to Jan, Lorna would call her and say, “ Tve told my husband I’m going to meet with you in Wichita; and if he calls, would you tell him that I’m on my way to or from to meet with you.’ ” Also in March, Lorna said to Jan, “ ‘He’s pretty good in bed for a minister.’ ” Jan testified that on April 19, Lorna met her for a cup of coffee and told her that things between her and her husband were much worse, and that she was getting much more involved with the defendant. Jan testified Lorna said, “ T know this sounds really awful but sometimes I just wish something would happen to Marty and his wife so Tom and I could spend the rest of our lives together.’ ” During the latter part of March or early April, Lorna told Jan about a trip to a small town that she and the defendant had taken within the last few days. Lorna said it was nice to be in a small town so she could walk down the street holding hands with the defendant. Finally, Jan Mead testified that in early April Lorna said that one of her daughters had seen her kissing Tom. Lorna was afraid the child might mention it to her father, Martin Anderson. The defendant argues these statements were not admissible as statements of a coconspirator under K.S.A. 60-460(i)(2), since they were made prior to the alleged solicitation and since Lorna was not charged or identified as a coconspirator. At the time of trial, the State contended the statements which Lorna Anderson made to Jan Mead were admissible under K.S.A. 60-4600) and did not argue that the statements were admissible under K.S.A. 60-460(i). A hearing was held outside the presence of the jury in order to determine the trustworthiness of the statements. Counsel for defendant was permitted to cross-examine the witness during this hearing. The court ruled the testimony was trustworthy and admissible as statements against interest under 60-4600). In making its ruling, the trial court stated: “It would appear to the Court that at the time the Declarant made these statements she was a married woman and the Defendant was a married man, and it would certainly — that type of a statement would I believe in this community and most others subject the declarant to the object of hatred, ridicule or social disapproval in the community. And so the Court would find that based upon what I’ve seen here now and having an opportunity to observe this witness under direct and cross that those statements would not be suppressed.” In State v. Myers, 229 Kan. 168, 171, 625 P.2d 1111 (1981), we noted that in a criminal trial, before admitting hearsay evidence under one of the exceptions to the hearsay rule, a trial court must also consider the application of the confrontation clauses as contained in the Sixth Amendment to the United States Constitution and also in section 10 of the Bill of Rights of the Kansas Constitution. We held that the confrontation clause requires a showing (1) that a witness not present for cross-examination is unavailable, and (2) that the statement bears adequate indicia of reliability or guarantees of trustworthiness, p. 174. Both showings were made in this case. Lorna Anderson was unavailable as she had exercised her Fifth Amendment privilege against self-incrimination. Moreover, the court made a finding of trustworthiness prior to admitting the statements. In State v. Myers, 229 Kan. at 174-76, this court held that a confession made by an accomplice to his wife which implicated the defendant, was unreliable and not trustworthy. The case at bar is easily distinguishable. The statements Lorna made to Jan Mead were not a confession to a crime nor did they implicate the defendant in the crime charged — the statements were simply offered to show the defendant’s motive to commit the offense. Also, Lorna had no expectation of privacy, or a confidential relationship, with Jan Mead. Accordingly, we hold that the defendant was not denied his right of confrontation by the admission of these statements. Moreover, we find that the statements were properly admissible under 60-460(j), which states: “Subject to the limitations of exception (f), 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.” We cannot say that the trial court abused its power of discretion by admitting the hearsay statements under 60-460(j). Since the statements were properly admissible under a hearsay exception and the defendant was not denied his right of confrontation, we need not consider the defendant’s argument concerning the applicability (or, rather, inapplicability) of K.S.A. 60-460(i) to these statements. Finally, defendant challenges the admissibility of the testimony of Esther Aldrete — Lorna Anderson’s babysitter — as to statements she overheard Lorna Anderson make while speaking on the telephone on April 23,1983. Ms. Aldrete testified that she heard Lorna say, “ T cannot wait for Marty to die. I wanted to spend — I wanted to count his green money or green stuff. ... I can’t — I cannot wait for Marty to die. I can’t wait to count the green stuff.’ ” When admitting this testimony at trial, the court did not specify which hearsay exception it was applying. The defense counsel objected to its admission on grounds of trustworthiness. The court overruled the objection. On appeal, the defendant argues only that the testimony was inadmissible under K.S.A. 60-460(i)(2) as a vicarious statement by a coconspirator. The defendant contends that since Lorna Anderson was not charged as. a conspirator, the statement was made on April 23 (well before the May “conspiracy” meeting with Darrel Carter) and the statement was not in “furtherance” of the conspiracy, K.S.A. 60-460(i)(2) is inapplicable. Based on this reasoning, the defendant contends the trial court committed reversible error by admitting the testimony. The State, in its brief, does not address the defendant’s arguments directly, but states there was no error on the part of the trial court because: (1) the defendant failed to make a contemporaneous objection, and (2) the statement was admissible as a declaration against interest pursuant to K.S.A. 60-460(j). While we agree with the State’s position that the trial court did not err in admitting this testimony, we disagree with its reasons. First of all, the defendant’s objection as to the “trustworthiness” of the proffered statement was adequate to preserve the issue for appeal. Second, we find the statement was admissible pursuant to K.S.A. 60-460(i)(2) rather than K.S.A. 60-460(j). K.S.A. 60-460(i) provides as follows: “As against a party, a statement which would be admissible if made by the declarant at the hearing if . . . (2) the party and the declarant were participating in a plan to commit a crime or a civil wrong and the statement was relevant to the plan or its subject matter and was made while the plan was in existence and before its complete execution or other termination . . . .” This exception to the rule against admitting hearsay estab lishes five prerequisites to its application: (1) the person testifying must be a third party; (2) the out-of-court statement about which the person will testify must have been made by one of the coconspirators; (3) the statement of the coconspirator must have been outside the presence of the accused; (4) the statement of the coconspirator must have been made while the conspiracy was in progress; and (5) the statement must be relevant to the plan or its subject matter. Further, even if all five of these elements are satisfied, the testimony is not admissible unless evidence, other than the proffered out-of-court statement, is already in the record which establishes a “substantial factual” basis for a conspiracy between the defendant and the declarant. State v. Nirschl, 208 Kan. 111, Syl. ¶ 2, 490 P.2d 917 (1971). In State v. Borserine, 184 Kan. 405, 410-11, 337 P.2d 697 (1959), this court indicated that a substantial factual basis may be something less than prima facie proof: “Where proof of the conspiracy depends on a vast amount of circumstantial evidence — a vast number of isolated and independent facts — [prima facie proof prior to the introduction of third party testimony] cannot be required. In any case where such acts and declarations are introduced in evidence, and the whole of the evidence introduced at the trial taken together shows that a conspiracy actually exists, it will be considered immaterial whether the conspiracy was established before, or after, the introduction of such acts and declarations.” See also State v. Sherry, 233 Kan. 920, 934, 667 P.2d 367 (1983). The evidence in this case clearly showed that there was a conspiracy between Lorna Anderson and the defendant to murder Martin Anderson at the time of their May meeting with Darrel Carter. However, there is no direct evidence to show the conspiracy existed on April 23, the day the babysitter overheard Lorna’s statements about wanting to “count the green stuff.” Accordingly, the defendant argues that the element of 60-460(i)(2) which requires the statement to have been made “while the plan was in existence” has not been satisfied. We disagree. Although there is not direct evidence that Lorna and the defendant had already conspired to kill Martin Anderson at the time Lorna made these statements on April 23, there is abundant circumstantial evidence which shows this must have been the case. For instance, Jan Mead testified that on April 19, Lorna made the statement that she sometimes wished “something” would happen to Martin and the defendant’s wife so that she and the defendant could be together. Jan Mead’s testimony indicated that the defendant and Lorna were deeply involved in their affair as early as March. Also, in April, Lorna and Martin Anderson took out a new life insurance policy. Then, during the first week in May, Lorna took out an additional policy on Martin’s life. Moreover, by the time the defendant and Lorna met with Darrel Carter in May, they had established two alternative murder plans in great detail, indicating they had put some time and thought into these plans. Based on all of these factors, this court finds there was sufficient evidence to establish a conspiracy existed when Lorna made the statements overheard by the babysitter on April 23. The defendant also argues that since the statement was not in “furtherance” of the conspiracy it is inadmissible under 60-460(i)(2). Defendant cites State v. Borserine, 184 Kan. 405, as authority. When the Borserine opinion was written in 1959, the hearsay exceptions had not yet been codified. The common-law coconspirator exception did require the statement to be one in furtherance of the conspiracy. However, when the hearsay exceptions were codified in 1963, this requirement was intentionally left out. See 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-460(i)(1979). K.S.A. 60-460(i)(2) requires only that the statement be relevant to the plan. See State v. Sherry, 233 Kan. at 934. Lorna’s statement was clearly relevant to the plan to murder Martin Anderson, thereby enabling her to obtain his insurance proceeds. Finally, the defendant argues the statement is inadmissible because Lorna was not charged with conspiracy. However, the law is clear that evidence is admissible to show a conspiracy between the defendant and the declarant even though the latter was not joined in the information and no conspiracy was charged therein. State v. Borserine, 184 Kan. at 408; see also United States v. Nixon, 418 U.S. 683, 701, 41 L.Ed.2d 1039, 94 S.Ct. 3090 (1974); State v. Campbell, 210 Kan. 265, 277, 500 P.2d 21 (1972). In summary, we find there was evidence in the record establishing a substantial factual basis for a conspiracy prior to the admission of the proffered statement. Further, the statement satisfied the five requirements of 60-460(i)(2): (1) the person testifying (Esther Aldrete) was a third party; (2) the out-of-court statement was made by one of the coconspirators (Lorna Ander son); (3) the statement was made outside the presence of the defendant; (4) the statement was made while the conspiracy was in progress; and (5) the statement was relevant to the plan to murder Martin Anderson. Therefore, we hold the statement was properly admitted pursuant to K.S.A. 60-460(i)(2). The next issue raised by the defendant is whether the trial court erred in admitting evidence concerning Martin Anderson’s life insurance. Testimony was received from the Andersons’ insurance agent as to the kind of policy the Andersons had purchased, and the amount of coverage from 1982 through 1983. He also testified that all policies were on the life of Martin Anderson with Lorna Anderson named as the primary beneficiary. The defendant acknowledges that evidence concerning insurance on Martin Anderson’s life could be admissible to establish motive if it were shown the defendant was aware of the insurance. However, the defendant contends there was no evidence that defendant had knowledge of the existence of the insurance and, therefore, the court erred by admitting the evidence. We note that there was evidence presented which proved defendant’s knowledge of the life insurance. Darrel Carter testified that at the meeting in May with the defendant and Lorna Anderson when he was told of the plans to kill Martin Anderson, he asked, “Tom, you’re the minister here at the church. . . . Have you ever, you know, talked to Lorna about counseling and why, you know, don’t you talk to her about getting a divorce. . . . That would be a lot easier thing to do.” Carter then testified that “[t]he defendant told me that Lorna didn’t want a divorce, that Martin Anderson had a large insurance policy and that she didn’t want the divorce, that she wanted the money and the only way that they could get the money was if Martin Anderson was dead.” It is clear in light of the foregoing testimony that the defendant’s contention that there was no evidence the defendant knew about the insurance is without merit. Therefore, the State did not err in admitting evidence of Martin Anderson’s life insurance for the purpose of establishing motive. The defendant next argues that the prosecutor’s closing argument was improper, inflammatory, and so prejudicial to the defendant as to prevent a fair trial. Specifically, the defendant complains of the following remarks: “And to come in here and insult the intelligence of the people of this county with that sort of nonsense. We’ve all seen love letters. We all know, what those are referring to. “. . . The question is why, why would the minister, why would a man who purports and sits there on Sunday morning proclaiming to be a man of God, why would this man become involved in a plot to kill a parishioner’s husband? “. . . And by golly, if I had just confessed to my involvement in a murder charge that was underway over there, I think I would get me a bulletproof vest over there, too, if somebody had already been killed and I had been the type that made a confession to it. “. . . This was a defendant that felt very confident; just what he said that day, ‘I’m a man of God and nobody will be suspicious of me.’ And even today he hides behind that. Even today they bring in the character witnesses; basically say, ‘Gee, he’s a minister and we all know ministers read the Bible.’ Ladies and gentlemen, we’ve all been raised; we’ve all been taught to respect people who are ministers, who are priests, who are men of the cloth. We all do. Those persons who are entitled to respect should receive it. And those persons who would abuse their position have no right to expect that to save their neck when they’re sitting here on trial. “. . . Ladies and gentlemen, with respect to this matter, these statements, you can sit there and tell me a hundred times that those statements aren’t incriminating, and I heard those explanations and I still just quake to think anybody would actually believe somebody would swallow it.” The record reveals defendant made no objection during the State’s argument. Nor was a request made to admonish the jury to disregard the allegedly improper remarks. Under such circumstances, we must conclude the defendant waived this claim of error concerning the closing argument. Reversible error cannot be predicated upon a complaint of misconduct of counsel during argument where no contemporaneous objection is lodged. State v. Pink, 236 Kan. 715, 724, 696 P.2d 358 (1985); State v. Lilley, 231 Kan. 694, 698, 647 P.2d 1323 (1982); State v. Arney, 218 Kan. 369, 374, 544 P.2d 334 (1975); State v. Johnson, 210 Kan. 288, 297, 502 P.2d 802 (1972); State v. Fleury, 203 Kan. 888, 896, 457 P.2d 44 (1969). We cannot accept defendant’s argument that a contemporaneous objection is not necessary to preserve the issue for appellate review where there has been “plain error.” The defendant cites numerous federal cases in support of this “plain error” rule. However, Kansas does not follow the “plain error” rule utilized in the federal courts. State v. Fisher, 222 Kan. 76, 83-84, 563 P.2d 1012 (1977). Therefore, failure to comply with the contemporaneous objection rule bars a challenge to a conviction in a state court. Even if the defendant in this case had preserved his objection for appellate review, we would npt find reversible error. All of the statements of which the defendant complains occurred in the State’s rebuttal argument, after the defendant made his closing argument, and were in reply to statements made by defense counsel. The defendant, in closing, claimed the cards recovered from Lorna’s home were selected at random by the defendant and only expressed the defendant’s Christian love for Lorna. These cards (or letters) were found in Lorna’s bedroom in her lingerie drawer. The cover of one of the cards read, “Miss you, miss you, miss you; Everything I do Echoes with the laughter And the voice of you.” The cards contained amorous inscriptions in the defendant’s handwriting and one was signed, “Love you Always Tom.” The prosecutor’s comments about these cards were fair comments on the evidence. The prosecutor’s statements in regard to the bulletproof vest worn by Darrel Carter when he met with the defendant in the parking lot were in response to the defense counsel’s argument that “[a]nyone who has a bulletproof vest at home is running in, pardon the expression from the tape, a different crowd than I’m familiar with.” Defense counsel argued that Darrel Carter concocted the story, admitted to lying under oath, and that his story was “bizarre” and “utterly ridiculous.” The defense counsel further argued, “It would take a complete idiot to do anything that wild and crazy.” The prosecutor responded by explaining how the evidence showed that the defendant thought his position in the community would help him conceal his crime. Defense counsel, in the closing argument, said that the defendant did not make one incriminating statement in the entire taped conversation with Darrel Carter. The State responded by commenting on the weakness of the defendant’s explanations for his statements recorded on tape. The prosecutor’s comments were founded upon matters in evidence. Most were in response to the defendant’s closing argument. In State v. Hanks, 236 Kan. 524, 532, 694 P.2d 407 (1985), we reiterated the following: “ ‘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.’ ” We conclude that the arguments complained of did not exceed the limits of fairness and were not prejudicial to the defendant. Finally, the defendant contends the trial court committed plain error by failing to give cautionary instructions when receiving statements of Darrel Carter and statements attributable to Lorna Anderson. The defendant contends that although neither Darrel Carter nor Lorna Anderson were charged as coconspirators with the defendant, it is clear from the evidence that they had criminal culpability. The defendant alleges that failure to give cautionary instructions when receiving as evidence statements made by accomplices or coconspirators is “plain error” affecting the substantial rights of a defendant, thus requiring a reversal of the conviction. The defendant’s argument lacks merit for several reasons. First, we disagree that the evidence showed Darrel Carter had criminal culpability thereby making him an “accomplice.” Second, the instruction was not requested and K.S.A. 22-3414(3) provides in substance that no party may assign as error the failure to give an instruction unless the matter was properly presented to the trial court. State v. Diaz & Altemay, 232 Kan. 307, 316, 654 P.2d 425 (1982); State v. Trujillo, 225 Kan. 320, 324, 590 P.2d 1027 (1979); State v. Bell, 224 Kan. 105, 108, 577 P.2d 1186 (1978). Further, this court has held that there is no duty to give a cautionary instruction when receiving accomplice testimony unless such instruction is requested, but if such an instruction is requested and is not given, the result may be error. State v. Moore, 229 Kan. 73, 80, 622 P.2d 631 (1981). We stated that the warning is desirable, but it is never an absolute necessity. 229 Kan. at 80. We note that although no cautionary instruction was given, the jury was instructed on its duty to consider the weight of the evidence and credibility of witnesses. In light of the foregoing considerations, we find the trial court had no duty to give a cautionary instruction to the jury prior to hearing Darrel Carter’s testimony. Therefore, no error was committed by the trial court and the defendant’s argument is without merit. The judgment of the lower court is affirmed.	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The opinion of the court was delivered by Lockett, J.: The defendant, Michael R. Waugh, appeals from his conviction of first degree felony murder in the Dickinson County District Court. Waugh alleges (1) that the district court failed to suppress his confession, which he claims was involuntarily given because the police method of questioning created psychological pressure that induced him to confess against his will, and (2) that he was deprived of his constitutional right to an attorney. John Edward “Friday” Longbine, an 81-year-old man, was reported missing to the Herington Police Department on March 15, 1984. During their investigation, the police determined that on the night of March 15 both Waugh and Longbine had been in the Spot Tavern and that on the same night Longbine had been seen getting into an automobile matching the description of the vehicle owned by the defendant. The police investigation into Longbine’s disappearance focused on the defendant, Michael Waugh. On Saturday, March 24,1984, at approximately 3:30 p.m., John Barker, an investigator for the Dickinson County Attorney’s office, went to Waugh’s residence. Only Waugh and his daughter were present in the house at the time. Barker read Waugh his Miranda rights. Barker then asked Waugh if he could interview him on tape and requested that the defendant sign a waiver to allow the search of his automobile. Waugh consented to both. The interview lasted between 20 and 30 minutes. No incriminating statements were made by Waugh at that time. Later, bloodhounds were used to search Waugh’s vehicle and they “hit” upon the scent of Friday Longbine. Waugh was not informed of that fact at the time. Barker, after leaving the Waugh residence, discovered his tape recorder had failed to work. He obtained another tape recorder and made arrangements with the Herington Police Department to interrogate Waugh at the police station. Barker then returned to the Waugh residence and requested that Waugh come to the police station for an interview. Waugh complied with the request after arrangements were made for an officer to babysit with Waugh’s daughter at the police station. Waugh and his daughter arrived at the police station at about 5:15 p.m. Waugh was led into the interrogation room where Barker instructed him to sit. Waugh was again given his Miranda rights. Barker interrogated Waugh for approximately one hour and 15 minutes. Until the end of the interview, Waugh denied any knowledge of the whereabouts of Friday Longbine or any knowledge of his disappearance. At the end of the interview, Waugh admitted that Longbine had been in his car and had had a heart attack. Waugh said he had become frightened and dumped Longbine’s body in the Kansas River on the Fort Riley Military Reservation. Following this interrogation, Waugh was taken to another room for a videotaped interview. After Waugh again was advised of his Miranda rights, he repeated his previous statement. Waugh was then transported to Fort Riley. During the ride to Fort Riley, Waugh was notified that he was under arrest, although he was not specifically told for what he was arrested. Waugh took the authorities to an area where he indicated the body had been dumped. He was then returned to the Dickinson County Jail. During the ride back and several times during the night, Waugh requested that he be allowed to contact his wife. He was denied his requests. Sometime during the evening, Waugh, to prove that his story of Friday’s death by heart attack was true, agreed to submit to a polygraph test. The following day, Sunday, March 25, Waugh was taken to the Abilene Police Station where the test was administered by Bruce Howell. It took approximately two hours to administer the test. Following the test, Howell explained to Waugh that the test results indicated Waugh was truthful in admitting he was an alcoholic, but not truthful when discussing what had occurred on March 15 with Mr. Longbine. Howell repeatedly told Waugh that he wanted to help him with his problem. Twenty minutes later and after numerous such statements by Howell, Waugh told Howell that he had in fact killed Longbine and disposed of the body in a lake. Howell then left the room and returned with Barker. At that point Waugh requested an attorney. Barker discontinued questioning Waugh about the facts of the case. Instead, he asked Waugh if he would show them where Waugh had hidden the body. Waugh agreed. On Monday, March 26, 1984, Waugh wrote a letter to the jailer requesting to speak with Barker without an attorney present. It was then arranged to bring Waugh before a magistrate for waiver of counsel. At the hearing before the magistrate, Waugh, after again being informed of his Miranda rights, told the judge that he wanted an attorney, but did not want one at that time. Following the hearing, Waugh was taken to an area near Herington Lake where he pointed out to law enforcement officers where he had dumped Longbine’s body. Waugh then requested to see his wife again. Barker told him that could be arranged after another statement was made. Waugh was taken to the Herington Police Department where he was again given his rights and a videotaped confession was taken from him. He was then allowed to contact his wife. On Tuesday, March 27, 1984, a complaint was filed and counsel was appointed for the defendant. Prior to trial, the defendant filed a motion to suppress his confession. A suppression hearing was held on September 18 and 28, 1984. The court held that the results of the polygraph examination would not be admissible, and that once Waugh announced that he desired a lawyer on March 26, the portion of the videotape following that request would not be permitted to be viewed by the jury. The court also held that the incriminating statements made by the defendant after his appearance before a judge to waive counsel would be allowed, based on what the court found to be a valid waiver. Later, prior to trial, the defendant also filed a motion to suppress certain physical evidence, including the body of the decedent, which had been located as a result of the defendant’s incriminating statements. Based on the Court’s previous ruling allowing the confession, the motion was denied. Waugh was convicted of felony murder by a jury. He now appeals. The defendant contends that his confession was involuntarily obtained because he was subjected to psychological coercion which included being held incommunicado and being subjected to deceptive practices by the interrogators. The U.S. Constitution, under the Fifth Amendment, guarantees the accused the privilege against self-incrimination from statements that are not freely and voluntarily given or are given under the threat of force or compulsion. Procedural safeguards protect the exercise of the privilege against self-incrimination from the coercive effects of custodial interrogation. Prior to custodial interrogation, law enforcement officers must advise a suspect that he has the right to remain silent, that his statements may be used against him at trial, and that if he cannot afford an attorney one will be appointed to represent him. If the suspect indicates in any manner either prior to or during questioning that he wishes to remain silent, interrogation must cease and may not recommence until the suspect knowingly, intelligently and voluntarily waives his right to silence. Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602 (1966). K.S.A. 22-3215(4) places the burden of proving that a confession or admission is admissible on the prosecution. In the present case, the trial court, after a hearing, determined Waugh’s confessions were voluntary. When a trial court determines at a hearing that a defendant’s extrajudicial statement was freely, voluntarily and intelligently given and admits the statement into evidence at trial, the appellate court will not reverse such determination if it is supported by substantial competent evidence. State v. Lilley, 231 Kan. 694, Syl. ¶ 6, 647 P.2d 1323 (1982). When determining the voluntariness of a confession, one views the totality of the circumstances, including: (1) the duration and manner of interrogation; (2) the accused’s ability upon request to communicate with the outside world; (3) the accused’s age, intellect and background; and (4) the fairness of the officers in conducting the interrogation. State v. Newfield, 229 Kan. 347, 623 P.2d 1349 (1981). Under the Fourteenth Amendment due process voluntariness test, a case-by-case evaluation approach is employed to determine whether coercion was impermissibly used in obtaining a confession. Coercion in obtaining a confession from an accused can be mental as well as physical. In determining the voluntariness of a confession. of crime, the question in each case is whether the defendant’s will was overborne at the time of the confession; if so, the confession cannot be deemed the product of a rational intellect and a free will. State v. Soverns, 215 Kan. 775, 777, 529 P.2d 181 (1974). Waugh contends that the “good guy approach” used by Barker during the interrogation on March 24 and by Howell during the polygraph examination were forms of psychological coercion. Waugh cites Leyra v. Denno, 347 U.S. 556, 98 L.Ed. 948, 74 S.Ct. 716 (1954), for support. In that case, a state-employed psychiatrist posed numerous subtle and suggestive questions to the defendant until he confessed. The facts of Leyra, however, differ from the present case. The defendant in Leyra had been submitted to questioning for ten to fourteen hours a day for four days. He was suffering from an acutely painful attack of sinus, and the police had promised to get a physician to help. The psychiatrist, who was trained in hypnosis, was introduced to the defendant as a physician. After nearly an hour and a half of questioning, during which the psychiatrist assured the defendant that he had done no moral wrong and would be let off easy, the defendant confessed. The Supreme Court found that the confession was coerced. For a comprehensive discussion of psychological coercion see Miranda v. Arizona, 384 U.S. 436, and Miller v. Fenton, 741 F.2d 1456 (3rd Cir. 1984). Here, Waugh knew that he was being questioned by an investigator for the police and later by the polygraph examiner. He had not been repeatedly questioned for hours and days. No threats or promises were made by either man. While they encouraged him to tell the truth, there was no positive promise of a benefit. The transcript of the interview at the police station shows that Barker repeatedly told Waugh that he believed that Waugh was lying and that Waugh would make it easier on himself by talking. Barker went so far as to tell Waugh that “I just want to go out there and get Friday and give him a Christian burial.” Neither the fact that the interrogation and the polygraph examination were conducted in a sympathetic manner rather than confrontational manner, nor the fact that it is the practice of the police to encourage a defendant to confess, automatically requires that a statement given under such circumstances be found to be one coerced in violation of the suspect’s rights. The defendant next contends that his confession was improperly induced by promises of help made by officers. He cites Robinson v. Smith, 451 F.Supp. 1278 (W.D.N.Y. 1978). In that case, a detective advised the defendant that “if he told the truth and told us the facts that he would probably receive the benefits of any leniency that may come to him in the courts.” 451 F.Supp. at 1290. The Robinson court found that the assurance by police interrogators that they would help the defendant and that he could help himself by confessing were clearly misleading. The court found that the police promises of benefit were an important factor which compelled the defendant to confess. In the present case, neither Barker nor Howell made any promises of leniency. Both discussed Waugh’s alcohol problem with him and suggested that there were places where he could get help for it Both suggested it would be to his and his family’s benefit to tell the truth and get help. The offers of help in this instance were of a collateral benefit, and were not offered to relieve the accused of some consequence of the crime charged. To hold that a promise of some collateral benefit renders a confession involuntary, it must appear that the collateral benefit promised was of such a nature it could reasonably be calculated to produce a confession irrespective of its truth or falsity. State v. Churchill, 231 Kan. 408, Syl. ¶ 1, 646 P.2d 1049 (1982). The collateral benefit in this case was not such that it would have produced a false or untrustworthy confession. The defendant contends that the fact that he was not allowed to see his wife until he showed the police where the body was located added to the coercive atmosphere which resulted in his confessing. He cites Haynes v. Washington, 373 U.S. 503, 10 L.Ed.2d 513, 83 S.Ct. 1336 (1963), as support for his argument. In Haynes, the defendant was found guilty of robbery after his written and signed confession was admitted into evidence. He made the confession 16 hours after he was arrested, during which time he was refused permission to call his wife or an attorney and was repeatedly told that he would not be allowed to call unless and until he “cooperated” with police and gave them a written and signed confession. The court said that the confession was not voluntary. While many of the facts in Haynes are similar to those in the present case, permission for Waugh to see his wife was not conditioned on his confessing or disclosing the location of the body nor was it offered as an inducement for procuring his cooperation. He was not subjected to lengthy and uninterrupted interrogation. Generally, the Supreme Court has found that under less extreme circumstances, as where the detention has only been for a few days or the questioning lasted only a few hours, exclusion of the confession has occurred only when it was also shown that the defendant was especially susceptible to coercion. See Culombe v. Connecticut, 367 U.S. 568, 6 L.Ed.2d 1037, 81 S.Ct. 1860 (1961); Haley v. Ohio, 332 U.S. 596, 92 L.Ed. 224, 68 S.Ct. 302 (1948). Waugh’s purpose for talking with the officers cannot be ignored when reviewing the circumstances of his statements. When first questioned by investigators, Waugh denied, any con tact with Friday on the night he had disappeared. When later informed that during the night Friday vanished witnesses had seen them together in a tavern, that a witness had observed Friday getting into a car similar to the defendant’s, and that several days later bloodhounds had detected Friday’s scent inside Waugh’s automobile, Waugh changed his story. Waugh then stated that after Friday had died of natural causes that night he had become frightened and hid the body in the river. In an effort to hide the fact that he had killed Friday to obtain his money and then disposed of the body in a lake, the defendant agreed to take a polygraph test. When the polygraph examination revealed that Waugh had lied, he admitted the true story of what occurred that night. The defendant’s calculated risk had failed.' The defendant next claims that both his Fifth and Sixth Amendment rights to counsel were violated. He contends that he was taken into custody during the first interview at the police station and that the Miranda warnings given at that time were inadequate. He claims that in every waiver form, he was improperly informed that he had only a right to stop answering questions until he talked to a lawyer. Waugh contends he believed that once he talked to a lawyer he no longer had the right to remain silent. Miranda requires that a suspect, before any “custodial interrogation,” must be warned in clear and unequivocal terms (1) that he has a right to remain silent, (2) that any statement that he does make may be used as evidence against him, (3) that he has a right to consult with, and have present prior to and during interrogation, an attorney, either retained or appointed, and (4) that if he cannot afford an attorney, one will be appointed for him prior to any questioning if he so desires. In California v. Prysock, 453 U.S. 355, 69 L.Ed.2d 696, 101 S.Ct. 2806 (1981), the court noted that it “has never indicated that the ‘rigidity’ of Miranda extends to the precise formulation of the warnings given” and that, “[q]uite the contrary, Miranda itself indicated that no talismanic incantation was required to satisfy its strictures.” p. 359. The Prysock court also said that where a defendant “was told of his right to have a lawyer present prior to and during interrogation” and also of his right to have a lawyer appointed at no cost if he could not afford one, these warnings collectively “conveyed to respondent his right to have a lawyer appointed if he could not afford one prior to and during interrogation.” p. 361. In the present case, Waugh was advised at his home, at the police station, prior to the polygraph examination, prior to being questioned by police officers and when brought before the magistrate to waive his right to an attorney that he had a right to counsel. The investigator and the polygraph operator both carefully read and explained to Waugh his rights. After the verbal warnings, Waugh also signed a written waiver. They asked Waugh if he understood what was said and Waugh stated that he understood his rights. After reviewing the record, we find that each of the warnings properly conveyed to Waugh his rights under Miranda. Waugh also contends that his right to counsel was violated when he was not provided an attorney at the March 26 hearing before the magistrate judge. In Brewer v. Williams, 430 U.S. 387, 398, 51 L.Ed.2d 424, 97 S.Ct. 1232, reh. denied 431 U.S. 925 (1977), the Supreme Court declared that “the right to counsel granted by the Sixth and Fourteenth Amendments means at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him— ‘whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’ ” The court also recognized that the right to counsel could be waived, and that such waiver would not inevitably necessitate the participation of the defendant’s lawyer. The right to counsel under the Sixth Amendment does not attach prior to the initiation of adversary judicial proceedings against an accused. Where a case is still in the investigative stage, or in the absence of a person being charged, arrested or indicted, such adversary proceedings have not yet commenced, and thus no right to counsel has attached. State v. Irving, 231 Kan. 258, 262, 644 P.2d 389 (1982). The Sixth Amendment guarantees attach only after the initiation of judicial criminal proceedings against an individual. State v. Estes, 216 Kan. 382, 385-386, 532 P.2d 1283 (1975). An arrest does not, in itself, initiate the criminal proceeding. Under the Kansas law it is (1) the filing of a complaint with a magistrate (K.S.A. 22-2301) or (2) the return of an indictment by the grand jury and the filing of an information that triggers the initiation of the criminal proceeding. (K.S.A. 1984 Supp. 22-2303.) At that time the right to an attorney attaches to the person so charged. No judicial proceedings were commenced against Waugh until March 27, 1984, when the complaint was filed. At the time the hearing was conducted, the magistrate had no jurisdiction to appoint an attorney to represent Waugh until after a complaint had been filed. Since a complaint had not been filed, no judicial proceedings had begun against the defendant and the magistrate was no more than a witness to the defendant’s waiver of his right to an attorney. The defendant’s Sixth Amendment right to counsel had not yet attached. The defendant contends that if the confession is inadmissible, then the evidence, particularly the evidence of the discovery of the body found as a result of the confession, should be suppressed. In the present case, after the polygraph test indicated he had lied about how Friday had died, Waugh admitted that he had struck and killed Friday with a tire iron and disposed of the body in a lake. A person in custody is able to assert his right to remain silent at any time he is being interrogated and may selectively assert his right to remain silent by indicating that he will not respond to questions or will respond to some questions but not to others. United States v. Thierman, 678 F.2d 1331, 1335 (9th Cir. 1982). Most courts, including Kansas, do not construe Miranda as creating a per se rule against further questioning if the person in custody initiates a conversation with police officers. Once a valid waiver is made, questioning by law enforcement officers may continue until the accused revokes his waiver. Waugh initiated further conversation with the law enforcement officers, giving up his right to remain silent. His statements made after his appearance before the magistrate and the evidence obtained as a result of those statements, were properly admitted by the trial court. Affirmed.	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The opinion of the court was delivered by Holmes, J.: James S. Lowe appeals from his conviction by a jury of one count of misdemeanor theft (K.S.A. 1985 Supp. 21-3701). Lowe was acquitted of a second charge alleging burglary (K.S.A. 21-3715). The facts as shown at trial were mainly undisputed. On the evening of January 3, 1984, a young man was observed entering the garage of the Lange residence in Overland Park, Kansas. This observation was made by Calvin Roberts, a neighbor, who alerted the Langes and the police. Roberts then emerged from his home and frightened the culprit away, but not until he had made off with five 12-packs of beer, a bottle of wine, and a yellow plastic trash can. A short time later, a police officer spotted Lowe, who matched the description provided by Roberts, and stopped him. When questioned, he identified himself as James S. Lowe, born in August of 1966. He, therefore, was seventeen years old at the time. Investigation of the surrounding area revealed the stolen property lodged in a snow drift. Lowe was then placed under arrest, informed of his Miranda rights and further of his right as a juvenile to have his parents present during any questioning. After being advised of his rights, Lowe agreed to talk to police, and subsequently confessed he had taken the items although he denied entering the garage and maintained the goods had been found in the driveway. Lowe was then charged with one count of burglary and one count of misdemeanor theft. Lowe had previously been before the juvenile division of the Johnson County District Court in two separate actions wherein he had been adjudicated as having committed acts which would be felony theft (March 1983) and aggravated battery (June 1983) if he were an adult. Appellant’s first point on appeal, which he raised repeatedly in the trial court, is an attack upon the jurisdiction of the court to commence proceedings against him other than under the Kansas juvenile offenders code, K.S.A. 1985 Supp. 38-1601 et seq. K.S.A. 1985 Supp. 38-1602 provides in pertinent part: “38-1602. Definitions, (a) ‘Juvenile’ means a person 10 or more years of age but less than 18 years of age. (b) ‘Juvenile offender’ means a person who does an act while a juvenile which if done by an adult would constitute the commission of a felony or misdemeanor as defined by K.S.A. 21-3105 and amendments thereto or who violates the provisions of K.S.A. 41-715 or 41-2721, and amendments thereto, but does not include: (3) a person 16 years of age or over who is charged with a felony or with more than one offense of which one or more is a felony after having been adjudicated in two separate prior juvenile proceedings as having committed an act which would constitute a felony if committed by an adult and the adjudications occurred prior to the date of the commission of the new act charged.” Thus, it is obvious that appellant at the time of his arrest was a juvenile as defined in the Kansas juvenile offenders code, but nota juvenile offender by reason of the exception in K.S.A. 1985 Supp. 38-1602(b)(3). In K.S.A. 1985 Supp. 38-1636, a procedure is provided by which any juvenile 16 years of age or older may be tried as an adult upon a proper showing and a waiver of jurisdiction by the court to proceed against the juvenile as a juvenile offender. It is appellant’s position that he should have first been charged as a juvenile offender under the juvenile offenders code and then upon a proper showing under the procedure of K.S.A. 1985 Supp. 38-1636 the judge of the juvenile division of the district court could authorize his prosecution as an adult. It is the position of the State that as appellant was nota juvenile offender as defined in the juvenile offenders code, due to the exception set forth above, the court properly had jurisdiction to proceed directly against appellant under the Kansas Criminal Code, K.S.A. 21-3101 et seq., and the Kansas code of criminal procedure, K.S.A. 22-2101 et seq., and lacked jurisdiction to proceed under the juvenile offenders code. No procedure is contained in the juvenile offenders code for making any jurisdictional showing under the exceptions found in K.S.A. 1985 Supp. 38-1602(b)(l) thru (6). It has been recognized, and Lowe does not question, that the legislature may exclude any person from juvenile jurisdiction under certain circumstances. Le Vier v. State, 214 Kan. 287, 292, 520 P.2d 1325 (1974). At the time of the filing of the original complaint, the State attached an affidavit setting forth the necessary allegations to show probable cause for the issuance of a warrant and, in addition, included statements as to the two prior juvenile offender adjudications and attached copies of the journal entries of adjudication in those proceedings. The affidavit and journal entries have not been included in the record on appeal. In a motion prior to trial attacking the jurisdiction of the court to hear the criminal charges against Lowe, the court appears to have taken judicial notice of its own records, including the juvenile proceedings, and denied the motion. During trial no further attempt was made by the State to prove that appellant was subject to the Kansas code of criminal procedure and Kansas Criminal Code by reason of the exception in K.S.A. 1985 Supp. 38-1602(b)(3). Atthe end of the State’s case and again at the end of trial, the question of the court’s jurisdiction was raised by the appellant. At common law, criminal responsibility for acts committed by children depended upon the age of the offender. Children under the age of 7 were conclusively presumed incapable of crime; those between 7 and 14 were rebuttably presumed incapable; and those 14 or over were presumptively capable. 21 Am. Jur. 2d, Criminal Law § 38. This common-law rule with respect to criminal liability of children has been legislatively altered in Kansas and in most, if not all, other states. The legislature has determined that juveniles, who would otherwise be subject to the juvenile offenders code, under certain circumstances are not subject to that code. Here, because of his prior adjudications, Lowe clearly had no “juvenile offender” status; therefore, the court lacked jurisdiction to proceed under the juvenile offenders code in this case. Essentially what the defendant asks this court to do is to allow the district court to proceed under a facade of jurisdiction under the juvenile offenders code, only to determine it lacked jurisdiction initially. The circular nature of this approach would serve only to place the litigants back at square one. We think it is clear that the court proceeded properly in this case and there was nothing further required of the State to show the jurisdiction of the court. The procedure of the State, while not necessarily exclusive, of incorporating the proper jurisdictional allegations in an affidavit supported by proof of the prior adjudications was sufficient. Appellant also asserts error in that the court took judicial notice of its own records without advance notice being given pursuant to K.S.A. 60-409. While the record in this respect is not clear, we have no hesitancy in holding there was no error in the court’s consideration of the prior juvenile proceedings in this case. See 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-409 (1979); Decker v. State, 219 Kan. 416, 548 P.2d 489 (1976). We conclude the court properly had jurisdiction from the outset. The second issue raised by Lowe is whether the trial court violated the Fifth Amendment prohibition against double jeopardy by dismissing a charge and then ordering it reinstated. Late in the afternoon on the first day of trial the prosecution rested its case and appellant then made several motions attacking jurisdiction, seeking a mistrial and seeking an acquittal for insufficient evidence. Although the court appeared to overrule the motions, it then went on to state: “Now, the Court has very serious and grave concern about whether there has been any evidence whatsoever to support Count II of the Information of the Complaint charging theft, all of the elements having been established sufficient to go to a jury. The Complaint states and alleges that the defendant took property belonging to a Mike E. Lange. The only testimony before this Court is that this beer was in the home- — was in the Lange home the week previous or sometime previous for some kind of a company party. There’s no testimony whatsoever that this — any of the items alleged to be taken were the ownership of Mr. Lange or any other person. Mrs. Lange testified only concerning the trash can — the plastic trash can, or receptacle, and nothing as to ownership of that trash receptacle. Therefore, the Court on its own motion is dismissing Count II of the Complaint.” After further argument and a request for clarification by the prosecution, court was recessed until the following morning. All of the proceedings on defendant’s various motions took place outside the presence of the jury, which was never advised of the court’s decision to dismiss the theft count. The next morning, prior to the resumption of trial and outside the presence of the jury, the court reversed itself and ordered the theft count reinstated. Ultimately the defendant was acquitted on the burglary count and found guilty of theft. Lowe now complains the trial court’s reinstatement of a charge it had ordered dismissed after the presentation of evidence violated the prohibition against double jeopardy. Our first inquiry is whether the court’s action was properly termed a dismissal or whether its order was actually a judgment of acquittal. In support of his position, Lowe relies on State v. Whorton, 225 Kan. 251, 589 P.2d 610 (1979), wherein the trial court sustained a defense motion to dismiss partially through the testimony of the State’s first witness. The State appealed and the court held that in dismissing the action the trial court had resolved factual issues and, therefore, although characterized as a dismissal, the trial court’s action was actually a judgment of acquittal. The court stated: “A judgment of acquittal was last defined as ‘a resolution, correct or not, of some or all of the factual elements of the offense charged.’ United States v. Scott, 437 U.S. 82, 97, 57 L. Ed. 2d 65, 98 S. Ct. 2187 (1978). Furthermore, a nial judge’s characterization of his own action does not control the classification of the action. United States v. Scott, 437 U.S. at 96; United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 51 L. Ed. 2d 642, 97 S. Ct. 1349 (1977); United States v. Wilson, 420 U.S. 332, 336, 43 L. Ed. 2d 232, 95 S. Ct. 1013 (1975); United States v. Jorn, 400 U.S. 470, 478 n. 7, 27 L. Ed. 2d 543, 91 S. Ct. 547 (1971). Finally, it has been held where a motion to dismiss challenges the sufficiency of the evidence, the proper motion should be for a judgment of acquittal. See United States v. Ambers, 416 F.2d 942 (5th Cir. 1969), cert. denied, 396 U.S. 1039 (1970).” p. 254. In addition, K.S.A. 22-3419(1) provides: “22-3419. Motion for judgment of acquittal. (1) The court on motion of a defendant or on its own motion shall order the entry of judgment of acquittal of one or more crimes charged in the complaint, indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such crime or crimes. If a defendant’s motion for judgment of acquittal at the close of the evidence offered by the prosecution is not granted, the defendant may offer evidence without having reserved the right.” A judgment of acquittal was defined in United States v. Scott, 437 U.S. 82, 97, 57 L. Ed. 2d 65, 98 S. Ct. 2187 (1978), as “a resolution . . . , correct or not, of some or all of the factual elements of the offense charged.” The trial court clearly stated that the basis for his “dismissal” was a lack of evidence to support the theft charge. We have no difficulty in finding that the trial court’s action constituted an acquittal of the charge of theft even though it was not stated in those precise terms. The more difficult question is whether, under the facts in this case, the court could reinstate the theft charge without violating appellant’s double jeopardy rights under the Constitution and statutes. In Whorton we stated: “Finally we note a judgment of acquittal, correctly or incorrectly arrived at, terminates the prosecution, and the double jeopardy clause of the Fifth Amendment bars further proceedings against the defendant.” 225 Kan. at 255. The State contends the trial court’s action did not violate the rule against double jeopardy since only one criminal proceeding was involved and there was no subsequent prosecution. The State relies upon language in City of Overland Park v. Barron, 234 Kan. 522, 672 P.2d 1100 (1983), which reads: “[T]he defendant was not subjected to double jeopardy . . . because there was never a termination of one trial and commencement of a second trial. K.S.A. 21-3108, which pertains to the subject of double jeopardy in criminal proceedings, clearly requires a termination of one trial and the commencement of a second trial in order for double jeopardy to exist.” p. 528. The facts in Barron involved the continuance of a criminal trial in a municipal court proceeding which the defendant alleged constituted double jeopardy. The actual decision in Barron was a determination that the defendant failed to file a timely appeal to the district court and therefore it and this court lacked jurisdiction to hear the matter. The appeal was dismissed. The language relied on by the State is dicta and merely an abstract statement of law asserting the proposition that a trial may properly be continued indeterminately without raising a double jeopardy issue. The parties have cited no decisions, and our research has disclosed none, which specifically addresses the point now before the court. The Fifth Amendment provides no person shall be “subject for the same offence to be twice put in jeopardy of life or limb.” The clause prevents a defendant who has been acquitted of a charge from being subjected to further prosecution. Bullington v. Missouri, 451 U.S. 430, 68 L. Ed. 2d 270, 101 S. Ct. 1852 (1981). Most, if not all, cases in which double jeopardy has been found to be a bar involve factual circumstances where the first prosecution has been terminated after it has proceeded to the point where the defendant was placed in jeopardy and the prosecution subsequently attempts to initiate new or additional proceedings based upon the same facts. The philosophy behind the double jeopardy clause was described in Green v. United States, 355 U.S. 184, 187-88, 2 L. Ed. 2d 199, 78 S. Ct. 221 (1957), wherein the court stated: "The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” pp. 187-88. K.S.A. 21-3108 provides in part: “21-3108. Effect of former prosecution. (1) A prosecution is barred if the defendant was formerly prosecuted for the same crime, based upon the same facts, if such former prosecution: (a) Resulted in either a conviction or an acquittal or in a determination that the evidence was insufficient to warrant a conviction.” Thus, it is usually contemplated that before double jeopardy attaches there must have been a former prosecution which was terminated after jeopardy attached. Here we have a short delay before resumption of the same proceedings upon the original charges without any other proceedings, other than the argument for acquittal, the judge’s “dismissal” of the theft count and its subsequent reinstatement. In State v. Fisher, 233 Kan. 29, 661 P.2d 791 (1983), we held: “Three elements must be present to bar a subsequent prosecution under the first portion of K.S.A. 21-3108(2)(a): 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.” Syl. ¶ 2. In the instant case the burglary charge remained after the court’s statement and all parties understood that the trial would resume the next morning in the same manner as if the theft charge had not been “dismissed.” Appellant has not shown that his trial strategy was affected or altered by the court’s ruling and has shown no prejudice to his ability to proceed with the trial on both counts. If the judge had changed his mind within moments of his initial decision and while all parties were still present before the court, we doubt that the issue would be before us and, if so, we would have no hesitancy in holding that the judge’s immmediate reversal of a prior trial ruling did not constitute error and that double jeopardy did not attach to further trial proceedings. On the other hand, if the only count against the appellant had been the theft count and the parties had departed for the night then, under the facts of this case, the court’s ruling would have terminated the proceeding and it could not have been resumed the next day. To hold that because there was another count requiring additional proceedings this case was not finally terminated as to the theft count may appear inconsistent but it does not invoke the constitutional or statutory bar against double jeopardy as there was no final termination of the trial and no second attempt at prosecution. We hold that, under the facts of this case, where the proceedings were not terminated, no intervening proceedings took place before the jury, and no prejudice to the defendant’s ability to proceed on both counts has been shown, double jeopardy did not bar resumed prosecution of the theft count. If the court had merely stated that it was going to take the matter under advisement and then ruled the next morning, as it did here, there would be no error and the appellant would have been in the identical situation as resulted in this case. We find no error. The third issue raised is whether the trial court erred when it denied the appellant’s request for a mistrial. At the time appellant was stopped by the police officers, he was advised of his Miranda rights, waived his rights and admitted taking the items which were allegedly removed from the Lange garage, although he denied having entered the garage, stating that he found the items on a driveway. Officer Owens testified to the- above statements at trial. During the course of further direct examination, the prosecutor asked the officer if a written statement was taken from Mr. Lowe. The officer replied that Lowe would not give a written statement. At this point defense counsel objected and moved for a mistrial which was denied. On appeal, Lowe claims Officer Owen’s statement was an improper infringement on his Fifth Amendment right against self-incrimination and his right to remain silent and that he was entitled to a mistrial. Appellant asserts that the evidence was introduced by the prosecution in an effort to prejudice him and to create an improper inference of guilt in violation of his constitutional right to remain silent. No improper motive or conduct on the part of the prosecutor is reflected by the record and it is our opinion the court did not abuse its discretion in denying the motion for mistrial. In Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229 (1965), the court faced the issue of whether the prose cutor and/or court could comment regarding the accused’s silence. The court held that the Fifth Amendment forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt. See also State v. Reeves, 224 Kan. 90, 577 P.2d 1175 (1978), and K.S.A. 60-439. While it would have been preferable if the question had not been asked of the officer, we fail to see any violation of appellant’s constitutional rights. After being fully advised of his rights under Miranda, appellant chose to discuss the alleged crime with the officer and freely did so. Never did he indicate that he wanted to invoke his right to remain silent and nowhere does it appear that his refusal to give a written statement was any attempt to invoke such rights. Further, after examining the record, it does not appear the questions during direct examination were directed toward the defendant’s silence, but were a follow-up to the previously discussed oral confession. No violation of the defendant’s Fifth Amendment right occurred. The declaration of a mistrial is a matter which lies within the sound discretion of the trial court. State v. Falke, 237 Kan. 668, 703 P.2d 1362 (1985). Discretion is abused only when no reasonable man would take the view adopted by the trial court; if reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said the court abused its discretion. State v. Galloway, 238 Kan. 415, 710 P.2d 1320 (1985). We find no such abuse here. The final issue on appeal is whether certain testimony adduced at trial was hearsay. During direct examination of Officer Owen the following exchange occurred: “Q. Did you have occasion to show these items [exhibits 1 through 7] to Mr. and Mrs. Lange? “A. Yes, sir. “Q. Did either Mr. or Mrs. Lange, both of them, ever identify these? “A. Mr. Lange identified them. MR. GILMAN: Judge, I’ll object to that as hearsay; ask that it be stricken. Further, ask that counsel instruct his witness that Mr. Lange isn’t here and they are not to put in what he told them. THE COURT: This is a result of his investigation. Overruled.” The items referred to were those allegedly taken from the Lange garage. Appellant claims the above testimony is hearsay, was improperly admitted, and prejudiced him. K.S.A. 60-460 excludes hear say evidence from admissibility except under the circumstances found in subsections (a) thru (dd). The above colloquy obviously falls within the definition of hearsay as Mr. Lange’s out-of-court identification was introduced to prove the items in evidence were those taken from his garage. Further, none of the exceptions set forth in K.S.A. 60-460 applies to the testimony elicited here. The admission of the officer’s hearsay testimony was error. However, such error does not necessarily require the granting of a new trial. We have repeatedly held errors which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining, when substantial justice has been done, do not require reversal. State v. Mitchell, 234 Kan. 185, 196, 672 P.2d 1 (1983). In the present case the prosecution presented direct testimony by Mrs. Lange with respect to the identity of the stolen items recovered at the time of Lowe’s arrest. She stated that exhibits 1 thru 7 were the items which were taken from her garage. Any prejudice which could have resulted from the admission of the hearsay testimony of Officer Owen was harmless error at best in view of the prior testimony of Mrs. Lange. The judgment is affirmed. Herd, J., dissenting: I disagree with the majority determination that appellant was not placed in double jeopardy on the theft count of the complaint. The trial judge, on his own motion, dismissed Count II of the complaint. His action ended the prosecution on that count. Dismissal is tantamount to a directed verdict of acquittal. State v. Whorton, 225 Kan. 251, 589 P.2d 610 (1979). When the trial court reconsidered its decision of the previous day and revived the dismissed count, it was putting the defendant on trial for a second time upon a criminal charge for which he had been acquitted the day before. That is double jeopardy. I would reverse.	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The opinion of the court was delivered by McFarland, J.: This is a consolidated appeal of three actions challenging the validity of an airport hazard zoning joint ordinance and resolution enacted by the City of Topeka and the County of Shawnee. The plaintiffs are landowners in the area subject to the ordinance/resolution. The district court upheld the validity of the ordinance/resolution in a trial of the consolidated cases and plaintiffs appeal therefrom. The ordinance of the defendant City of Topeka is No. 14650 and was adopted on May 13, 1980. The defendant City’s ordinance is codified as Topeka, Kansas, Code Art. II, Sec. 4-55 through 4-64 (1985). The resolution of the defendant Board of County Comnjissioners is No. 80-75 and was adopted on May 20, 1980. The joint ordinance and resolution will, for the sake of simplicity, be hereinafter referred to as the “ordinance.” The ordinance is an airport hazard zoning ordinance and applies to the Forbes Field and Phillip Billard Airports. Plaintiff Robert R. Kimberlin owns property in the affected zone near Forbes Field. Plaintiff Galen L. Schaefer owns property in the affected zone near Phillip Billard Airport. The actions have a complex procedural history which includes an abortive attempt at a class action. The procedural history is not involved in the issues on appeal and need not be set forth herein. The ordinance is lengthy and portions thereof will be set forth specifically as needed for discussion for particular issues raised. The ordinance places height and use restrictions on property located near the two airports. Statutory authority for adoption of such ordinances is set forth in the airport zoning act, K.S.A. 3-701 et seq. With this brief background, we turn now to the issues raised on appeal. The first issue challenges the validity of a portion of the ordinance which permits the placing of markers or warning lights on nonconforming uses within the subject area. Specifically, the ordinance provides in pertinent part: “Section 7. Nonconforming Uses. (1) Regulations not Retroactive - The regulations prescribed by this joint ordinance/resolution shall not be construed to require the removal, lowering, or other changes or alteration of any structure or tree not conforming to the regulations as of the effective date of this joint ordinance/resolution, or otherwise interfere with the continuance of nonconforming use. “(2) Marking and Lighting - Notwithstanding the preceding provision of this Section, the owner of any existing nonconforming structure or tree is hereby required to permit the installation, operation, and maintenance thereon of such markers and lights as shall be deemed necessary by the Executive Director of the Metropolitan Topeka Airport Authority to indicate to the operators of aircraft in the vicinity of the airport, the presence of such airport hazards. Such markers and lights shall be installed, operated, and maintained at the expense of the Metropolitan Topeka Airport Authority.” This is codified as Sec. 4-60(a) and (b) of the City Code of Topeka. Plaintiffs contend Section 7(2) permits an unconstitutional public taking of private property without compensation and, further, that such provision exceeds the grant of authority in the enabling statutes, K.S.A. 3-706(2) and 3-707(3). Defendants argue this issue is not properly before the court. Although defendants’ argument in this regard is couched in terms of plaintiffs’ alleged lack of standing to raise the issue, the question is really whether the issue is a proper matter for determination. Section 7 of the ordinance applies only to nonconforming uses of property in the areas subject thereto. What is a nonconforming use relates wholly to land uses existing as of the effective date of the ordinance. It is uncontroverted there were no nonconforming uses of the property anywhere in the subject areas. The complained-of provision of Section 7(2) of the ordinance has not, does not, and can never have any application. Under these circumstances the validity of Section 7(2) is an abstract question. As stated in Knowles v. State Board of Education, 219 Kan. 271, 547 P.2d 699 (1976): “The rule as to moot questions is one of court policy, founded upon the proposition that, except when under some statutory duty to do so, courts do not sit for the purpose of giving opinions upon abstract propositions not involving actual controversy presented for determination.” Syl. ¶ 2. See also City of Roeland Park v. Cross, 229 Kan. 269, 623 P.2d 1332 (1981), as follows: “We have frequently stated it is the duty of the courts to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles which cannot affect the matter in issue before the court. Randall v. Seemann, 228 Kan. 395, 398, 613 P.2d 1376 (1980); Burnett v. Doyen, 220 Kan. 400, 403, 552 P.2d 928 (1976).” 229 Kan. at 270. We conclude this issue is not a proper subject for judicial determination. For their second issue plaintiffs contend the ordinance is impermissibly vague. The standards to be applied to challenge the legislation based upon alleged vagueness are set forth in State v. Dunn, 233 Kan. 411, 662 P.2d 1286 (1983), as follows: “In State v. Lackey, 232 Kan. 478, 479, 657 P.2d 40 (1982), we recognized that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the Constitution. In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it and, if there is any reasonable way to construe the statute as constitutionally valid, that should be done. See also State v. Carpenter, 231 Kan. 235, 237, 642 P.2d 998 (1982); Cardarella v. City of Overland Park, 228 Kan. at 700. A statute must be sufficiently definite to meet due process standards. The test to determine whether a criminal statute is unconstitutional by reason of being vague and indefinite is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. A statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process. At its heart, the test for vagueness is a common sense determination of fundamental fairness. State v. Lackey, 232 Kan. at 479-80; State v. Carpenter, 231 Kan. at 237; Cardarella v. City of Overland Park, 228 Kan. at 703. See also Grayned v. City of Rockford, 408 U.S. 104, 108, 33 L.Ed.2d 222, 92 S.Ct. 2294 (1972). In determining whether an ordinance is void for vagueness two inquiries are appropriate: (1) whether the ordinance gives fair warning to those persons potentially subject to it, and (2) whether the ordinance adequately guards against arbitrary and discriminatory enforcement. Cardarella v. City of Overland Park, 228 Kan. at 702; State v. Lackey, 232 Kan. at 480. See also Hejira Corp. v. MacFarlane, 660 F.2d at 1365, Casbah, Inc. v. Thone, 651 F.2d 551, 558 (8th Cir. 1981). In Cardarella v. City of Overland Park, 228 Kan. at 706, we also noted: (1) upon challenges for vagueness greater leeway is afforded statutes regulating business than those proscribing criminal conduct; and (2) a statute is not to be struck down only because marginal cases could be put where doubts might arise.” 233 Kan. at 418. The vagueness challenge to the ordinance is two-pronged: 1. The definition of “airport hazard” is so vague as to fail to give fair notice of proscribed land usage; and 2. the height restrictions are so complex and confusing that a landowner cannot determine what restriction applies. We shall first consider the issue raised as to the term “airport hazard.” In pertinent part, the ordinance provides: “Section 1. Statement of Purpose. It is hereby found that an airport hazard endangers the lives and property of users of Forbes Field and Phillip Billard Airports, and property or occupants of land in their vicinities, and also if the obstruction type, in effect reduces the size of the area available for the landing, take-off, and maneuvering of the aircraft, thus tending to destroy or impair the utility of Forbes Field and Phillip Billard Airports and the public investment therein. Accordingly, it is declared: (1) That the creation or establishment of an airport hazard is a public nuisance and injury to the regions served by Forbes Field and Phillip Billard Airports. (2) That it is necessary in the interest of the public health, public safety, and general welfare that the creation or establishment of airport hazards be prevented; and (3) That the prevention of these hazards should be accomplished, to the extent legally possible, by the exercise of the police power. It is further declared that both the prevention of the creation or establishment of airport hazards and the elimination, removal, alteration, mitigation, or making and lighting of existing airport hazards are public purposes. “Section 3. Definitions. As used in this joint ordinance/resolution, unless the context otherwise requires: (1) Airport - The Forbes Field Airport and the Phillip Billard Airport. (3) Airport Hazard - Any structure or object of natural growth located on or in the vicinity of a public airport, or any use of land near such airport, which obstructs the airspace required for the flight of aircraft in landing or takeoff at such airport or is otherwise hazardous to such landing or takeoff of aircraft. (4) Structure - An object constructed or installed by man, including, but without limitation, buildings, towers, smokestacks, earth formation, and overhead transmission lines. IS) Tree - Any oTfleá oí growfc. “Section 6. Use Restrictions. Notwithstanding any other provisions of this joined ordinance/resolution, no use may be made of land or water within any zone established by this joint ordinance/resolution in such a manner as to create electrical interference with navigational signals or radio communication between airport and aircraft, make it difficult for pilots to distinguish between airport lights and others, resulting in a glare in the eyes of pilots using the airport, impair visibility in the vicinity of the airport or otherwise in any way create a hazard or endanger the landing, takeoff, or maneuvering of aircraft intending to use the airport.” The above-cited sections of the ordinance (with the exception of the statement of purpose) are codified in the Topeka Code in Sections 4-56 and 4-59 thereof. Plaintiffs complain that what is or is not an airport hazard lacks adequate specificity to apprise affected landowners of impermissible land usage. In the enabling act (K.S.A. 3-701 et seq.) “airport hazard” is defined in K.S.A. 3-701(2), as follows: “ ‘Airport hazard’ means any structure or tree or use of land which obstructs the airspace required for the flight of aircraft in landing or taking-off at any airport or is otherwise hazardous to such landing or taking-off of aircraft.” Plaintiffs contend the ordinance is impermissibly vague because it does not specify precisely land usages that constitute airport hazards within the purview of the ordinance. However, plaintiffs’ counsel, in oral argument before this court, conceded that inclusion of a “laundry list” of airport hazards is not feasible. Land usage in a particular manner in one part of the airport hazard zone might constitute an airport hazard while identical usage in another part of the zone might not. This results from the fact the airport hazard arises from the effect of the land usage rather than the land usage itself. Airport hazards can include such diverse matters as glare and smoke affecting a pilot’s ability to make safe landings and takeoffs and electrical transmissions interfering with radio or electronic equipment on an airplane. If a question arises relative to a usage being an airport hazard, the City’s Chief Building Inspector or the County’s Zoning Administrator will make the initial determination. Persons adversely affected thereby could challenge the reasonableness of the determination. We conclude the vagueness challenge to the term “airport hazard” is without merit. The second prong of the vagueness challenge relates to the height restriction contained in the ordinance. It is certainly true that a person of average intelligence and experience would have some difficulty ascertaining from the ordinance and the maps of airport zoning districts precisely what height restrictions apply to his or her property. This difficulty arises from the complexity of the zoning purpose rather than unskillful or sloppy drafting of the ordinance. Essentially, the farther the property is located from the airport site, the higher are the height limitations, but more is involved than a series of concentric circles. Pie-shaped pieces within those circles extend from the airport runways which have lower height restrictions. Additionally, reference must be made to elevation maps, as the height limitations presuppose the land in the zoned area to be level. The higher elevation of a particular area of land would lower the height restriction placed thereon. However, a landowner may ascertain the height restriction (or restrictions) applicable to his or her property by inquiry to the appropriate public officer. The officer’s determination is not a matter of whim but must be based upon his examination of the ordinance and applicable maps. A landowner dissatisfied with the determination could, of course, challenge same and have the validity of the determination examined. Some topics of legislation are, by their very nature, complex. Airport hazard zoning legislation is one of these areas. The federal Internal Revenue Code is an infamous example of the class. We conclude the vagueness challenge to the portions of the ordinance pertaining to height restrictions is without merit. For their third issue plaintiffs contend the height and use restrictions are beyond the constitutionally permissible limits of zoning as they constitute a taking of private property without just compensation and due process of law. This issue does not challenge the propriety of particular height and use restrictions as applied to plaintiffs’ properties. That is, plaintiffs do not contend that a specific intended use is being wrongfully precluded on a particular tract or that a particular height restriction is unreasonable or wrongful. Rather, the issue is a broadside attack on the right of defendants to restrict the usage of any property in the subject areas by zoning as opposed to purchase of property rights. Plaintiffs are clearly rankled by the fact federal money was received by the Metropolitan Topeka Airport Authority which, plaintiffs contend, could have been used to purchase easements and property from landowners but was utilized for other aspects of airport improvement. Plaintiffs contend defendants are taking, by zoning legislation, property interests which should have been purchased. Plaintiffs do not seriously challenge the concept that airport safety is a proper subject for exercise of the police power of a political subdivision of the state. Rather, they argue that in some unspecified manner the ordinance herein goes beyond lawful zoning under the police power. The argument is difficult to follow. Zoning ordinances of any kind limit land utilization — that is the very nature of zoning. Usage of particular property is restricted for the public welfare through zoning. Such restrictions must be reasonable, however. See generally Houston v. Board of City Commissioners, 218 Kan. 323, 543 P.2d 1010 (1975). As stated by the trial court in its memorandum decision herein: “The enactment of zoning laws has long been viewed as a valid exercise of police power, thereby not requiring compensation to be paid to the affected landowners. Even if the regulation substantially reduces the value of the property, the reduction, by itself, does not amount to a taking. Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1928). If the government appropriation, however, is such that the property rights are so impaired that the present use of the property is effectively destroyed, compensation is required. United States v. Causby, 328 U.S. 256 (1946). “The United States Supreme Court recently discussed the concept of governmental ‘taking’ in Penn Central Transportation Co. v. New York City, 438 U.S. 104, reh. denied, 439 U.S. 883 (1978), in upholding New York City’s Landmark Preservation Law. In Penn Central, the Supreme Court held that: “ Tn deciding whether a particular governmental action has effected a taking, this Court focuses rather both on the character of the action and on the nature and extent of the interference with the rights in the parcel as a whole.’ ” Id. at 130-131. In its analysis, the Court held that if the restriction on the property was not reasonably necessary to effectuate a substantial public purpose, it could be viewed as a ‘taking.’ Id. at 127. “The ordinance in question in this action is based on the legislature’s decision that airport hazards constitute a danger to the lives and property of the users of the airport and the occupants of the land in the airport’s vicinity. This purpose is intimately related to the safety and welfare of the public, therefore well within the police power extended to local governments under K.S.A. 3-701 et seq. Furthermore, there has been no showing that the zoning ordinance, which contains a grandfather and variance provision, in any way interferes with the present use of the property or that it enables the physical invasion of the property since air easements have already been purchased. “For the foregoing reasons, the Court finds that the Forbes Field and Phillip Billard Airports Hazard Zoning Ordinance/Resolution is not a ‘taking’ of the Plaintiffs’ property and therefore does not violate the Fifth Amendment of the United States Constitution.” We conclude this issue is without merit. For their final issue plaintiffs argue the ordinance is not reasonable for failure of defendants to consider the factors set forth in K.S.A. 3-706(1). The statute provides: “All airport zoning regulations adopted under this act shall be reasonable and none shall impose any requirement or restriction which is not reasonably necessary to effectuate the purposes of this act. In determining what regulations it may adopt, each political subdivision shall consider, among other things, the character of the flying operations expected to be conducted at the airport, the nature of the terrain within the airport hazard area, the character of the neighborhood, and the uses to which the property to be zoned is put and adaptable.” As previously noted, the ordinance and the various maps necessary for its implementation are complex documents. Specialized expertise was necessary for their preparation. The original draft of the ordinance was prepared in 1977 by Jon Woodward, then an employee of the Topeka Airport Authority. Mr. Woodward, who testified at trial, was at that time an airport consultant with the firm of Coffman Associates of Kansas City. The proposed ordinance quickly became a hot issue and was the subject of a number of public hearings where citizens whose property would be affected thereby voiced their protests. The ordinance became law in 1980. The procedural history does not show any one public hearing by either defendant where each factor was specifically discussed, but an extraordinary amount of time was spent by the defendants on the subject of the ordinance by virtue of the complexity of the matter and the vigor of the opposition. The trial herein consisted of testimony of Jon Woodward, preparer of the original draft of the ordinance, and the two plaintiffs. Plaintiff Schaefer testified that, in his opinion, the ordinance lowered the value of his pig farm. Plaintiff Kimberlin testified he had previously filed complaints about aircraft flying low over his property. Plaintiffs essentially complained about being subjected to any aircraft hazard zoning ordinance. The trial, lasting three hours, did not center on allegations of any particular provision, or provisions, of the ordinance being unreasonable. The issues were whether property was being taken without just compensation and whether the ordinance was vague (both issues having been previously discussed). Particular height or use restrictions on particular property were not challenged as being unreasonable. No claim was made, for example, that a 150-foot height limit was unreasonably low and that 200 feet would be reasonable. The challenge was, basically, the propriety of having any airport hazard ordinance. The way the issues developed required no defense on the reasonableness of any particular provision in the context of K.S.A. 3-706(1). The only reference in the testimony to the factors contained in said statute was a question of whether Woodward knew if the defendants had considered the factors set forth in 3-706(1). The witness answered, “I do not recall.” The defendant public officials'" are presumed to know their duties under the law and there is no showing they failed to comply with the requirements of 3-706(1). We conclude this issue lacks merit. The judgment is affirmed.	[ -80, 73, -11, 92, 27, 97, 88, -76, 91, -15, -9, 83, 109, -54, 13, 51, -89, 29, 81, 107, -29, -77, 83, -126, -10, -13, -53, 85, -6, 95, -26, -9, 72, -63, -54, -43, 6, -62, 5, 94, -50, 7, 11, 65, -39, 67, 52, 122, 18, 79, 85, 15, -14, 45, 24, -61, -24, 44, 91, -20, -61, -48, -23, 21, 126, 20, -78, -124, -112, -123, 92, 11, -104, 57, 40, -24, 19, -90, -106, 116, 15, -37, -116, 42, 99, 1, 13, -81, -84, -103, 6, 80, -81, -90, -110, 24, 96, 0, -42, -75, 117, 55, 77, 126, -26, 5, 27, 120, -113, -58, -48, -79, -49, 96, -104, 85, -17, -121, 17, 65, -53, -50, 94, -42, 16, 95, -42, -100 ]
The opinion of the court was delivered by Miller, J.: Sherrie Lynn Bridger, the mother of two minor children, Nikisha and Andrea, brought this common-law paternity action in the name of her minor children. She sought a determination by the trial court that the defendant, Frederick LaGrone, is the father of both children. She also sought custody of the children and child support. After trial, the Wyandotte County District Court judge found that Frederick was the father of both children. He placed Andrea in Sherrie’s custody and required Frederick to pay $300 per month as child support. He placed Nikisha in Frederick’s custody. He also made specific provisions for visitation. The mother appeals from that portion of the trial court’s order awarding the father the custody of Nikisha. Most of the facts are undisputed. Sherrie and Frederick commenced living together in 1981. Nikisha was born the following year, and Frederick has always acknowledged that he is her father. In late 1982, Sherrie again became pregnant. Frederick denied from the first that he was the father of Sherrie’s expected child. He offered to pay for an abortion but Sherrie did not want an abortion. In May or June of 1983, she moved out of the home where she and Frederick lived. Andrea was born in August. The evidence was that both parents are fit, both love their children and both take good care of them. Sherrie has had almost the complete care and custody of Andrea since her birth. Frederick testified that Nikisha had lived with him for approximately twenty months prior to the time this case was tried. Sherrie, on the other hand, testified that she cared for Nikisha during the days and Frederick took care of her at night. Frederick is in the Navy and was transferred to San Diego a few weeks before trial. He flew home for the hearing, bringing Nikisha with him. The first issue is whether the father of an illegitimate child can seek custody of the child. The 1985 Legislature passed the Kansas parentage act. L. 1985, ch. 114, §§ 1-20. The act provides for a procedure to be followed in determining the paternity of the child, and section 12 of the act authorizes the court to enter sufficient orders regarding custody as the court considers to be in the best interests of the child. That act, however, did not become effective until after the trial of this case, and we find nothing in the act to suggest that it should be applied retroactively. We note that in this case the mother asked the court to award to her the custody of both children. When the matter came on for trial, counsel announced that custody was an issue and that this would be “a custody fight.” The matter was fully tried, with both parties presenting evidence. In State ex rel. Wingard v. Sill, 223 Kan. 661, 576 P.2d 620 (1978), we held that while the right to visitation is not automatic, the father of an illegitimate child, like any other parent if fit and proper, is entitled to have access to and at reasonable times visit and be visited by a child who is in the custody of the other parent. We said, “The day is gone when the putative father has no parental rights under the law.” 223 Kan. at 665. More recently in Carty v. Martin, 233 Kan. 7, 660 P.2d 540 (1983), in an action commenced by the father to establish paternity and visitation rights to an illegitimate child, we held that the trial court did not err in granting visitation privileges to the father and in awarding child support to the mother with whom the child was domiciled. We have repeatedly said that the most important factor to consider in determining which parent should be granted custody is what will serve the best interests and welfare of the child. All other considerations are secondary. See, for example, Burnworth v. Hughes, 234 Kan. 69, Syl. ¶ 1, 670 P.2d 917 (1983); Simmons v. Simmons, 223 Kan. 639, 642, 576 P.2d 589 (1978); Hardenburger v. Hardenburger, 216 Kan. 322, Syl. ¶ 2, 532 P.2d 1106 (1975). This principle has been applied by the courts of other states in deciding the custody issue as between unwed parents. In Cox v. Hendricks, 208 Neb. 23, 302 N.W.2d 35 (1981), the Nebraska Supreme Court stated: “In a paternity action where paternity has been admitted and the natural father has demonstrated a familial relationship with the child and has fulfilled parental responsibilities of support and maintenance, the fact that the child was born out of wedlock should be disregarded, and custody and visitation of minor children should be determined on the basis of the best interests of the children.” (Emphasis supplied.) 208 Neb. at 28. Also, in Heyer v. Peterson, 307 N.W.2d 1 (Iowa 1981), the Iowa Supreme Court stated: “When the issue of custody arises from the competing claims of unwed parents, we do not believe the critical issue to be which parent possesses the greater right to the child. Rather, we conclude that in a custody contest of this nature, the controlling consideration must be the interests of the child. See § 675.31, The Code 1979 (The court has continuing jurisdiction ‘to determine . . . custody in accordance with the interests of the child.’) (emphasis added). This profound decision involves selecting as the custodial parent the person who can minister more effectively to the long-range best interests of the child. The objective ought always to be to place the child in the environment most likely to bring that child to healthy physical, mental and social maturity. “ We believe the criteria for determining custody should be the same whether the parents are dissolving their marriage or are unwed.” (Emphasis supplied.) 307 N.W. 2d at 7. See also Pi v. Delta, 175 Conn. 527, 400 A.2d 709 (1978); Bazemore v. Davis, 394 A.2d 1377 (D.C. 1978); Matter of Custody of Bourey, 127 Ill. App. 3d 530, 82 Ill. Dec. 852, 469 N.E.2d 386 (1984); People ex rel. Elmore v. Elmore, 46 Ill. App. 3d 504, 5 Ill. Dec. 292, 361 N.E.2d 615 (1977); Walton as Tutrix of Deblieux v. Deblieux, 428 So. 2d 937 (La. App. 1983); Smith v. Watson, 425 So. 2d 1030 (Miss. 1983); In re Byrd, 66 Ohio St. 2d 334, 421 N.E.2d 1284 (1981). We conclude that an unwed parent, whether mother or father, should be treated the same as any other parent for the purpose of determining custody. The custody issue must be decided on the same criteria — primarily, the best interests of the child — regardless of the marital status of the parents. We conclude that the father of an illegitimate child may seek custody of the child in our courts and that such parent could do so even prior to the enactment of the Kansas parentage act. Finally, the mother argues that the trial court erred in ordering divided custody. K.S.A. 60-1610(a)(3)(B) lists several of the relevant factors that a court must consider in determining the issue of custody. The enumerated facts, however, are not exclusive. The court is directed to consider “all relevant factors, including but not limited to” those listed. One factor which the court might properly consider is certainly which parent has had the actual care and custody of the child during the child’s lifetime. Section 1610(a)(4)(A), (B), (C) and (D) lists the types of custodial arrangements which the court might consider. The first is joint custody, the second is sole custody, the third is divided custody, and the last is nonparental custody. These are listed in the order of preference. With regard to divided custody, the act states: “In an exceptional case, the court may divide the custody of two or more children between the parties.” Sherrie argues that the court erred in ordering this form of custody. She points out that sole custody of both children is preferred to divided custody, and that divided custody may be ordered only in exceptional cases. The statute does not define what an exceptional case is, nor does it give examples. The facts before the trial court in this case were unusual. Sherrie provided all of the care for Andrea and some care for Nikisha, with Frederick taking care of Nikisha when he was not on duty. This went on for some eighteen to twenty months prior to the hearing. Since Frederick is now stationed on the west coast, this arrangement is no longer possible. The trial court largely perpetuated the status quo, awarding custody along the lines followed by the natural parents of the children. As we have said many times, the trial court is in the best position to determine the needs and best interests of the children. Under the circumstances, we conclude that the trial court did not err in awarding the custody of Nikisha to her father. The judgment is affirmed.	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The opinion of the court was delivered by Prager, J.; This is a dispute between two judgment creditors and a garnishee bank over funds held by the bank in the defendant Lloyd’s bank account. In answer to the garnishment, the garnishee bank responded that it had no funds of the defendant because it had exercised its right of setoff against the defendant’s account. The plaintiff creditors contended that the setoff was wrongful. The district court held in favor of the bank. The plaintiffs then appealed, and the Court of Appeals affirmed in a published opinion in Karner v. Willis, 10 Kan. App. 2d 432, 700 P.2d 582 (1985). The Supreme Court granted the plaintiffs’ petition for review. The facts in the case were undisputed and essentially were as follows: On March 15, 1983, the plaintiffs, Herbert and Ruth Karner, obtained a judgment against the defendants, Willis and Lloyd, in the sum of $58,352.40 in the State of Oklahoma. On April 4, 1983, a duly authenticated copy of the Oklahoma judgment was filed in the district court of Ellsworth County. On August 3, 1983, an order of garnishment was issued by the district court of Ellsworth County directed to the Citizens State Bank of Ellsworth and the Kanopolis State Bank of Kanopolis. By mistake, a sheriff s deputy served the garnishment addressed to the Citizens State Bank on the Kanopolis State Bank. Dale E. Hoosier, vice-president of Kanopolis State Bank, who received the garnishment, called the Ellsworth County sheriffs department and notified them that he had been served with a garnishment directed to the Citizens State Bank. The dispatcher of the sheriff s department notified the deputy of the mistake, and he immediately returned to the Kanopolis State Bank and exchanged the Citizens State Bank garnishment for the garnishment directed to the Kanopolis State Bank. During the interim period, Dale E. Hoosier, acting on behalf of the Kanopolis State Bank, exercised a setoff against the account of the defendant debtor, Lloyd. In the Court of Appeals opinion, the Kansas statutes which control the right of a creditor bank to accelerate the maturity of a debt and to exercise a right of setoff against the debtor’s account are discussed. Simply stated, K.S.A. 84-1-208 states that a contractual term providing that a party may accelerate payments or performance “when he deems himself insecure” or in words of similar import shall be construed to mean that he shall have the power to do so only if he in good faith believes that the prospect of payment or performance is impaired. In the present case, the defendant debtor was indebted to the bank on a note which contained a provision which permitted the bank to accelerate the maturity of the debt if it deemed itself insecure. The trial court, in effect, found that the garnishee bank had acted in good faith in accelerating the debt and in setting off the note against the debtor’s bank account. The Court of Appeals viewed the basic issue on appeal to be whether there was substantial competent evidence in the record to support the findings of the trial court that, at the time the bank executed the setoff, it in good faith believed that the prospect of payment of the note was impaired. The Court of Appeals affirmed on the basis that “good faith” was a fact issue which the trial court resolved in the bank’s favor, and found there was substantial competent evidence to support the trial court’s findings. When the trial court has made findings of fact and conclusions of law, the scope of appellate review is for this court to determine whether the trial court’s findings are supported by substantial competent evidence. Woods v. Midwest Conveyor Co., 236 Kan. 734, Syl. ¶ 2, 697 P.2d 52 (1985). The appellate court will not weigh the evidence or pass upon the credibility of the witnesses. The reviewing court must review the evidence in the light most favorable to the party prevailing below. Marcotte Realty & Auction, Inc. v. Schumacher, 229 Kan. 252, 254, 624 P.2d 420 (1981). At the hearing of this case, the only witness who testified was Dale E. Hoosier, the vice-president of the garnishee, Kanopolis State Bank. Hoosier testified that the day before the garnishment was served, the bookkeeper for the debtor depositor had been to the bank and requested signature cards to change the account name and signatures. Hoosier was aware of the Oklahoma judgment filed in Ellsworth County against the debtor earlier that year. At the time he made the setoff, he did not actually know whether the debtor was insolvent or not. The debtor had not been delinquent on any payments and was current on August 3, 1983, when the setoff was made. Mr. Hoosier testified that he deemed the bank was impaired in its security because the garnishment would have resulted in the sum of $40,000 being taken from the debtor’s operating account as a farm implement dealer and, as a result, “he would have had no liquidity to operate.” The bank records showed that on August 16, 1983, 13 days after the setoff, the bank loaned the debtor an additional $50,000, but in the interim period the debtor had paid $99,000 on the loan and pledged his used farm equipment as additional collateral. In its opinion, the Court of Appeals recognized that there certainly was evidence presented that, viewed objectively, the bank was not insecure, but that the test of good faith dictated by K.S.A. 84-1-208 is subjective and requires only honesty in fact. Iola State Bank v. Bolan, 235 Kan. 175, 183, 679 P.2d 720 (1984); and K.S.A. 84-1-201(19). The Court of Appeals then applied the subjective test required by the statute and concluded that the trial court’s finding of good faith was supported by substantial competent evidence. The majority of this court has concluded from the record that the Court of Appeals correctly determined the issue. The judgment of the district court is affirmed. The judgment of the Court of Appeals is affirmed.	[ -80, -20, -71, 92, 72, -32, 40, -102, 113, -95, 53, 83, -87, -62, 5, 121, 83, 13, 20, 113, 65, -73, 23, -63, -42, -6, -7, -35, -72, 94, -28, -42, 76, 16, 10, -107, 102, -62, -63, -36, -50, -122, 41, 112, -7, -116, 48, 107, 50, 10, 81, 44, -29, 43, 58, -61, 104, 56, -21, -81, 80, -78, -54, 5, 127, 81, 3, 4, -100, 7, -48, -82, -104, 49, 51, 120, -14, 38, -122, 117, 47, -103, 12, 118, 98, -93, 21, -17, -124, -103, 38, -35, -113, -89, -110, 88, 11, 15, 54, -100, 119, 22, 7, -4, -21, -124, 31, -20, 7, -38, -12, -45, -115, 117, -102, -117, -25, -61, -80, 113, -50, -30, 92, 71, 59, -85, -2, -11 ]
The opinion of the court was delivered by Schroeder, C.J.: This is an action by Rick, Joe, Jack and June Cornwell and Martha Cornwell Riddell (plaintiffs-appellees) against Jerry Jespersen, and Rig J. Production Co., Inc., (defendants-appellants) for damages to the plaintiffs’ crops and land alleged to have resulted from the defendants’ oil drilling activities on their land. The trial court held that the plaintiffs could maintain an action against the defendants as they were third party beneficiaries to the drilling contract between defendants and plaintiffs’ lessee. The court awarded actual damages total-ling $3,772 and punitive damages of $1,980. The defendants’ appeal claiming the trial court erred in its conclusion that the plaintiffs were third party beneficiaries to the contract, in considering parol evidence when interpreting the drilling contract, in awarding punitive damages, and in finding that a letter dated March 13, 1982, from the lessee to the defendants was not an accord and satisfaction. Rick and Joe Cornwell and Martha Cornwell Riddell are the joint owners of a certain parcel of land in Stafford County. Jack, June, Rick and Joe Cornwell and Martha Cornwell Riddell are the owners of a separate parcel, also in Stafford County. In August of 1980, Rick, Joe and Martha entered into an oil and gas lease with Dennis Tajchman as lessee. Also in August of 1980, Jack, June, Rick, Joe and Martha leased their land to Alta, Inc. The leases — for purposes of this appeal — are identical. Each contained supplemental provisions, including the following conditions; “2.d. Lessee shall pay for all loss of crops and damages to the land occasioned by its operations. “4. Lessee agrees that all pits constructed on the premises in connection with drilling operations shall be at lease five feet (5') deep, or deeper. The top two feet (2') of soil shall be segregated so that upon refilling of the pits said two feet of top soil may be replaced on the top of the filled pits. In the construction of said pits an additional excavation of at least three feet deep shall be made diagonally from corner to corner of said pits so that in the event of a dry hole the mud and fluid from any pit shall be pumped into the drill hole before it is plugged and that after said pits have thoroughly dried, Lessee, at the time requested by Lessor, shall refill and level all pits to the surface level of the adjoining land. “It is further agreed that if any drill site or test is abandoned that the surface pipe shall be cut off not less than six feet (6') below the surface so as not to interfere with future farming operations.” “6. It is further agreed that Lessee shall be liable for all damages caused to the Lessor by reason of oil, salt water, or other fluid resulting from Lessee’s operations, and that in the event the Lessee permits any such liquids to run over the surface of said premises, such oil or liquids shall be scraped up to a depth of the soil saturation and removed, or buried on the premises at a minimum depth of thirty-six inches (36") and any depressions resulting therefrom shall be refilled with good clean top soil, and leveled to the surrounding surface. In connection therewith, Lessee shall have the right to use top soil from the leased premises for the purpose of filling any such depressions.” Eventually, both leases were assigned to Quadel Energy Corporation (hereinafter, Quadel). On May 15, 1981, Quadel entered into a turnkey-type drilling contract with the defendant Jerry Jesperson. The contract provided that Jesperson was to: drill test wells after obtaining the necessary permits; provide all material, supplies, and labor; maintain records as required by law; obtain and maintain workers’ compensation insurance; pay all charges for labor or materials incurred; prevent the filing of any liens; and have independent contractor status. The contract also contained the following provision: “5. (a) The Driller shall indemnify, defend and save the Partnership harmless from any and all claims made by or liability to any third party (including any employee of the Driller or any subcontractor thereof) for personal injury or property damage arising out of the drilling and other activities to be performed hereunder, including any liability for injury or damage arising out of any blow-out, explosion or other accident with respect to any well drilled hereunder.” Attached to, and part of, the drilling contract was a list of costs in the turnkey agreement. Specifically included in this list were the following: “Fill Pits . . .; Restore Location . . .¡Damages.” The total cost per well drilled under the contract was stated as being $90,740. Among the seven wells drilled on various leases by the defendants were two test wells drilled on both parcels of land owned by the plaintiffs. Both wells were abandoned as dry holes. Although the defendants filled the pits, they failed to remove the drilling mud from the pits or to cover them properly which resulted in mud overflowing and covering the land surface. They did not cut off the surface pipe to the six-foot depth required by the lease, nor did they restore the surface of the drill site to farmable condition. The defendants caused injury to the plaintiffs’ land and crops, but they did not pay damages for either. On March 13, 1982, Jespersen received a letter from Quadel which began by stating, “This letter sets forth the agreements we have reached as a result of our negotiations over the past several days.” It further stated, “[I]t is now desired that an accord and satisfaction be agreed to with respect to all obligations and liabilities existing between you on the one hand, . . . and the partnerships on the other. Accordingly, we have agreed to pay you the total sum of $958,000.” (Emphasis added.) The letter then recited specific obligations still to be performed by the defendants. No mention was made of “filling the pits, restoring the surface or paying damages” to the landowners in connection with their leases. Finally, the letter included the following agreement, “all payments, assignments, bills of sales and other matters provided for herein shall be paid, made and delivered between us on or before the 19th day of March, 1982, in Wichita, Kansas or this agreement is void and of no further legal force and/or effect.” (Emphasis added.) At the time of the hearing held on December 14, 1982, Jespersen admitted he had not yet performed all of his obligations as stated in the letter. On June 24, 1982, Quadel sent a “demand” letter to the defendants stating, “We simply cannot understand why the few matters remaining to be accomplished to complete the settlement reached in March have not been done.” The letter listed the defendants’ remaining obligations. Included in the list was, “[defendants] must settle immediately all claims for damages outstanding with landowners and tenants.” In a reply letter from Jespersen to Quadel, Jespersen stated, “We are negotiating the claims on . . . the [Cornwell lease] .... These will be settled in the near future.” On October 7, 1982, Rick and Joe Cornwell and Martha Corn-well Riddell filed a petition against the defendants, requesting $1,700 actual damages and $3,000 punitive damages (Case No. 83-C-10). On the same day, Jack, June, Rick and Joe Cornwell and Martha Cornwell Riddell petitioned for judgment against the defendants in the amount of $750 actual and $1,500 punitive damages (Case No. 83-C-9). The plaintiffs brought their actions on the contract alleging they were third party beneficiaries under the drilling contract between Quadel and the defendants. The defendants answered by denying the third party beneficiary status affirmatively pleading an accord and satisfaction by virtue of the letter dated March 13, 1982, as a bar to the plaintiffs’ claims. The cases were consolidated for trial. The cases, brought under Chapter 61 as limited civil actions, were heard by a magistrate judge on December 14, 1982. After the plaintiffs presented their evidence, the defendants moved for dismissal arguing that the plaintiffs had failed to present sufficient evidence to establish their position. The motion was overruled. Jespersen announced to the court he would stand on the questions of law raised by the motion and presented no evidence. The magistrate judge entered judgment for the plaintiffs against the defendants in both cases. In case No. 83-C-10, the plaintiffs were awarded actual damages of $3,020 and punitive damages of $1,980. In case No. 83-C-9, the plaintiffs were awarded only actual damages of $750. The defendants appealed to the district court. In a memorandum opinion dated February 24, 1984, the district court affirmed the decision of the magistrate judge in both cases. The defendants then moved for a new trial alleging there was newly discovered evidence stating that all of the defendants’ obligations — as set forth in the March 13 letter — had been fully performed since the trial. A hearing was held on May 24, 1984, and the motion was overruled. The defendants then duly perfected their appeal to this court. The first issue is whether the lower court erred in finding the plaintiffs were third party beneficiaries to the drilling contract. The magistrate judge based his ruling on Exhibit A attached to the drilling contract which included the requirement that Jespersen fill the pits, restore the location, and pay the land damages. The judge found that the parties, by including these requirements, intended to benefit the plaintiffs, and, therefore, the plaintiffs were third party beneficiaries and had standing to sue on the contract. This court discussed the law of third party beneficiary contracts in Martin v. Edwards, 219 Kan. 466, 472-73, 548 P.2d 779 (1976): “Generally, where a person makes a promise to another for the benefit of a third person, that third person may maintain an action to enforce the contract even though he had no knowledge of the contract when it was made and paid no part of the consideration (Burton v. Larkin, 36 Kan. 246, 13 Pac. 398; Anderson v. Rexroad, 175 Kan. 676, 266 P.2d 320). But it is not everyone who may benefit from the performance of a contract between two other persons, or who may suffer from its nonperformance, who is permitted to enforce the contract by court action. Beneficiaries of contracts to which they are not parties have been divided into three classes: Donee beneficiaries, creditor beneficiaries, and incidental beneficiaries. Only those falling within the first two classes may enforce contracts made for their benefit (17A CJS, Contracts, § 519[4]b., p. 964; Accord: Burton v. Larkin, [36 Kan. 246]). These third person beneficiaries are defined in 2 Williston on Contracts, 3d ed., § 356, as follows: “ \ . (1) Such person is a donee beneficiary if the purpose of the promisee in obtaining the promise of all or part of the performance thereof, is to make a gift to the beneficiary, or to confer upon him a right against the promisor to some performance neither due [nor supposed] or asserted to be due from the promisee to the beneficiary; (2) such person is a creditor beneficiary if no intention to make a gift appears from the terms of the promise, and performance of the promise will satisfy an actual [or supposed] or asserted duty of the promisee to the beneficiary [emphasis added]; (3) such person is an incidental' beneficiary if the benefits to him are merely incidental to the performance of the promise and if he is neither a donee nor a creditor beneficiary.’ (pp. 824-827.) “(Accord: Restatement of the Law of Contracts, § 133, pp. 151-152. Restatement, Contracts, 2d, Revised Tentative Draft, 1973, § 133, pp. 285-286, divides contract beneficiaries into two classes — intended and incidental).” The court then went on to state: “Various tests have been used elsewhere in drawing the line between classes of beneficiaries. In Burton v. Larkin, [36 Kan. 246], this court held: ‘It is not every promise made by one to another from the performance of which a benefit may inure to a third, which gives a right of action to such third person, he being neither privy to the contract nor to the consideration. The contract must be made for his benefit as its object, and he must be the party intended to be benefited in order to be entitled to sue upon it. (Syl. Para. 3.) (Emphasis supplied [in Martin].) Under this test a beneficiary can enforce the contract if he is one who the contracting parties intended should receive a-direct benefit from the contract (see anno. Contract-Enforcement by Person Benefited, 81 ALR 1271, § III d., p. 1286). We think this test is sound and are content to reaffirm it. Contracting parties are presumed to act for themselves and therefore an intent to benefit a third person must be clearly expressed in the contract (Ronnau v. Caravan International Corporation, 205 Kan. 154, 159, 468 P.2d 118). It is not necessary, however, that the third party be the exclusive beneficiary of all the promisor s performance. The contract may also benefit the contracting parties as well (17 Am. Jur. 2d, Contracts, § 306, pp. 731-732; 17A CJS, Contracts, § 519[4]£, p. 983).” (Emphasis added.) 219 Kan. at 473. The Restatement (Second) of Contracts § 302 (1979), states: “(1) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either “(a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or “(b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance. “(2) An incidental beneficiary is a beneficiary who is not an intended beneficiary.” The law on third party beneficiary contracts, as stated in Martin v. Edwards, 219 Kan. 466, was upheld in Holiday Development Co. v. Tobin Construction Co., 219 Kan. 701, 549 P.2d 1376 (1976). We adhere to the law as set out in Martin. This case is to be distinguished from Schmeck v. City of Shawnee, 232 Kan. 11, 651 P.2d 585 (1982), where the action was brought on a tort theory. The court there relied upon Restatement (Second) of Torts § 324A (1965). In determining the intent of the contracting parties as to rights of a third party beneficiary, we must apply the general rules for construction of contracts. The intention of the parties and the meaning of the contract are to be determined from the instrument itself where the terms are plain and unambiguous. First Nat’l Bank & Trust Co. v. Lygrisse, 231 Kan. 595, 647 P.2d 1268 (1982); Anderson v. Rexroad, 175 Kan. 676, 679, 266 P.2d 320 (1954). Regardless of the construction of a written instrument made by the trial court, on appeal the instrument may be construed and its legal effect determined by the appellate court. Hall v. Mullen, 234 Kan. 1031, 678 P.2d 169 (1984). Accordingly, we find that the terms of the drilling contract involved in this case are express, clear and unambiguous. It follows that the language in the contract must be given its plain and ordinary meaning without resort to further rules of construction. It must be noted the trial court erred in the admission of oral testimony to explain the unambiguous drilling contract, but the error is harmless because the trial court reached the correct decision as to the intent of the parties and the purpose of the contract for the reasons hereafter stated. City of Ottawa v. Heathman, 236 Kan. 417, 426, 690 P.2d 1375 (1984); Home Ins. Co. v. Atchison, T. & S. F. Rly. Co., 189 Kan. 316, 319-20, 369 P.2d 338 (1962). Were the plaintiffs intended beneficiaries of the drilling contract? The plaintiffs argue, in support of their status as intended beneficiaries, that the “indemnity clause” contained in the drilling contract clearly shows the parties intended to benefit the plaintiffs. We disagree. In 2 Williston on Contracts, § 403 (3d ed. 1959), it is stated: “A mere promise to indemnify against damages must also be distinguished. Here the promisor's liability does not arise until the promisee has suffered loss or expense. Until then the promisee has no right of action, and consequently one claiming damages can assert no derivative right against the promisor, much less a direct right.” Despite this fallacious argument by the plaintiffs, we agree with the trial court’s conclusion that the plaintiffs were intended beneficiaries of the drilling contract. Since the purpose of the drilling agreement was not to make a gift to the plaintiffs, the plaintiffs were not donee beneficiaries. To find the plaintiffs were “intended” beneficiaries who are thereby permitted to enforce the contract in this case, we must find they were creditor beneficiaries. As defined in Martin, a person is a creditor beneficiary when “no intention to make a gift appears from the terms of the promise, and performance of the promise will satisfy an actual [or supposed] or asserted duty of the promisee to the beneficiary.” Martin v. Edwards, 219 Kan. at 472. The promisee in this case — Quadel—owed certain duties to the plaintiffs under the oil and gas lease. The lease provided that the lessee (Quadel) was to perform the following duties in connection with any drilling operations on the plaintiffs’ land: Pay crop and surface damage, dig pits at least five feet deep, pump mud and fluid from the pit into the drill hole, cut off surface pipe to six feet below the surface, and restore the surface-. Rather than performing the drilling operations, Quadel entered into a drilling agreement with the defendants wherein the defendants were to perform all drilling operations on the plaintiffs’ land. Included in the contract was a breakdown of “costs included in the turnkey agreement.” Among Jespersen’s duties in connection with drilling the test wells was that he would fill the pits, restore the surface, and pay for any damages caused by his operations. Clearly, if the defendants had fulfilled these duties, “the performance of the promise [would have satisfied] an actual [or supposed] or asserted duty of the promisee to the beneficiary.” Since the defendants assumed duties owed to the plaintiffs by Quadel, the plaintiffs are creditor beneficiaries under the drilling contract and have a right to enforce the same. The defendants next contend the lower court erred in finding the letter dated March 13, 1982, which was sent to Jespersen by Quadel and subsequently executed by both parties, was not an accord and satisfaction. Jespersen argues the court should have found it to be a valid accord and satisfaction or a novation, thus barring the plaintiffs from the enforcement of the original contract. The lower court found — based on the testimony at the time of trial — that while the letter was an “accord” there had been no satisfaction and, therefore, the plaintiffs were not barred from enforcing the original contract. Regardless of the trial court’s construction of the written instrument, the instrument may be construed and its legal effect determined by this court on appeal. Hall v. Mullen, 234 Kan. 1031. In Thompson v. Meyers, 211 Kan. 26, 505 P.2d 680 (1973), we held in order for an accord and satisfaction to be effective, both the accord and the satisfaction must be established. See also Coffeyville State Bank v. Lembeck, 227 Kan. 857, 610 P.2d 616 (1980). In Manning v. Woods, Inc., 182 Kan. 640, 643, 324 P.2d 136 (1958), this court stated that, “an accord and satisfaction is the adjustment of a disagreement as to what is due from one party to another and the payment of the agreed amount.” Therefore, before an accord can operate as a bar to the assertion of the original contract, it must be followed by a satisfaction. If it has not been followed by a satisfaction, it has no effect. See Lighthouse for the Blind v. Miller, 149 Kan. 165, 86 P.2d 508 (1939). The letter of accord stated, “[W]e have agreed that all payments, assignments, bills of sales and other matters provided for herein shall be paid, made and delivered between us on or before the 19th day of March, 1982 ... or this agreement is void and of no further legal force and/or effect.” (Emphasis added.) It was established at trial, by Jespersen’s own testimony, that he had not yet performed all of his obligations as listed in the “accord” letter. The date of the hearing was December 14, 1982. Clearly, the defendants failed to establish that these matters had been satisfied by March 19, 1982. Thus, the agreement terminated on March 19, 1982, and no longer had any force or effect. This finding is supported by a reply letter, dated July 6, 1982, from Jespersen to Quadel in which Jespersen stated he was negotiating claims with Cornwell. The settlement agreement made no mention of the defendants’ duty to settle landowners’ claims. Therefore, had the defendants believed the settlement agreement was still in effect, they would not have had any reason or obligation to “negotiate claims.” The June 1982 letter of Quadel to which Jespersen responded listed the things left to be done by the defendants; among those was the defendants’ obligation to settle all claims with the landowners. The defendants. further contend this court should find the agreement is a novation, thus nullifying the original contract. The defendants did not raise the issue of a novation at the trial. A point not presented to the trial court may not be raised for the first time on appeal. Lostutter v. Estate of Larkin, 235 Kan. 154, 166, 679 P.2d 181 (1984); Brick v. Fire Insurance Co., 117 Kan. 44, 45-46, 230 Pac. 309 (1924). Even if the defendants had presented this issue below, we do not find the agreement was a novation. The purpose of the March 13 letter was to extinguish the parties’ existing obligations to each other. It did not create new obligations. The effects of “novation” and “accord and satisfaction” are distinguished in 1 Am. Jur. 2d, Accord and Satisfaction § 3, as follows: “[A] novation implies the extinction of an existing debt or obligation and its transition into a new one between the same or other parties, whereas an accord and satisfaction relates solely to extinguishing the debt or obligation.” Accordingly, we find that the letter of March 13 did not operate as a “novation” of the original contract. We conclude the trial court was correct in finding the plaintiffs were permitted to sue on the original contract as intended beneficiaries. The defendants next contend the trial court erred by awarding punitive damages to the plaintiff. The trial court, in its memorandum opinion, reasoned as follows: “The Court, with regards to punitive damages, finds the defendant, has wilfully and wantonly disregarded the rights of the plaintiff, by his failure to perform his duties as required by the oil and gas lease and the operating agreement. The Court finds there is a wilful breach of the oil and gas lease and also that of the operating agreement. “The Court enters judgment for punitive damages against the defendant in the amount of $1980.00.” Under Kansas law, breach of a contract, standing alone, does not call for punitive damages even if the breach is intentional and unjustified, but such damages are allowable if there is some independent tort indicating malice, fraud, or wanton disregard of the rights of others. Gonzalez v. Allstate Ins. Co., 217 Kan. 262, 535 P.2d 919 (1975). Wantonness is characterized by a realization of imminence of damage to others and a restraint from doing what is necessary to prevent the damage due to indifference as to whether it occurs. Boehm v. Fox, 473 F.2d 445 (10th Cir. 1973). This court, in Guarantee Abstract & Title Co. v. Interstate Fire Gas. Co, 232 Kan. 76, 78-79, 652 P.2d 665 (1982), discussed the exception to the rule against punitive damages in breach of contract actions as follows: “This exception ... is recognized when some independent tort or wrong results in additional injury which justifies the assessment of punitive damages by way of punishment of the wrongdoer. In such a case the proof of the independent tort must indicate the presence of malice, fraud or wanton disregard for the rights of others. The difference between a tort and contract action is that a breach of contract is a failure of performance of a duty arising under or imposed by agreement; whereas, a tort is a violation of a duty imposed by law.” (Emphasis added.) This rule was recently applied in Plains Resources, Inc. v. Gable, 235 Kan. 580, 682 P.2d 653 (1984). Plains also involved an action for breach of an oil and gas drilling contract in which the trial court’s award of punitive damages was challenged. In Plains, an employee of the oil drilling company had intentionally sabotaged a hole which had been partially drilled to the contracted-for depth. This court held that the employee’s action clearly constituted an independent tort which caused additional injury. Therefore, the trial court had not erred in awarding punitive damages. The case at hand is readily distinguishable from Plains. All injury to the plaintiffs flowed directly from the breach of the defendants’ contractual duty to fill the holes, restore the surface and pay damages. Their failure to do so — even if intentional or unjustified — was not an independent tort causing additional injury. Accordingly, we conclude there was no independent tort upon which any punitive damages could be predicated in this case. The punitive damage award of $1,980 must be vacated. Finally, the defendants contend the trial court erred in overruling their motion for a new trial. The defendants’ motion alleged that there was newly discovered evidence to show that all of the conditions of the March 13 “accord” had been “satisfied” since the date of the trial. Since we have held that the settlement agreement terminated by its own terms prior to trial, this issue is without merit and warrants no further discussion. The judgments relative to actual damages are affirmed; the judgment awarding punitive damages is reversed and vacated.	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The opinion of the court was delivered by McFarland, J.: Plaintiff Frank Padilla brings this action against defendant City of Topeka alleging the City wrongfully refused to hire him as a Topeka police officer. Mr. Padilla was not hired because his uncorrected vision was below the standards for new recruits set by the Topeka Police Department. Plaintiff contends the City’s refusal to hire him violated: (1) his constitutional rights to due process and equal protection; and (2) federal, state and municipal laws relative to the hiring of handicapped persons. The trial court generally held favorably to the plaintiff on all points, invalidated the visual acuity requirement, ordered the plaintiff be considered a qualified applicant, and allowed attorney fees to plaintiff. The defendant City appeals from all adverse determinations. The facts of the case are mainly uncontroverted and may be summarized as follows. In 1979 plaintiff applied for the position of police officer with the City of Topeka. He passed all of the tests except the physical standard for uncorrected visual acuity which required no less than 20/50 for each eye. Minimum physical standards for new Topeka police officers and firefighters were developed in 1978 by Dr. Ray D. Baker, a physician, who is the director of the Topeka-Shawnee County Health Department. In formulating the Topeka standards, Dr. Baker studied the standards utilized by several major police and highway patrol departments outside of the State of Kansas. Additionally, Dr. Baker conferred with the Topeka Police Chief as to the type of adverse working conditions police officers could encounter. The visual acuity standard recommended by Dr. Baker and adopted by the Topeka Fire and Police Civil Service Commission required not less than 20/50 uncorrected vision in each eye — correctable to 20/20 in each eye. Plaintiff was working as a corporal with the Ottawa (Kansas) Department of Public Safety at all times relevant. He wears glasses which correct his vision to 20/20. His myopia has not caused him any difficulty in any aspect of his life, including his police position in Ottawa. He does not believe his myopia limits or restricts his activities in any way. Plaintiff s eyes test 20/100 in the left eye, 20/70 in the right eye, and 20/50 binocular (both eyes functioning as opposed to monocular testing). By virtue of the nature of the monocular and binocular testing, it would seem illogical that the binocular test figure could be better than the vision in a single eye, but such was the evidence and we must accept it as correct. At trial of the action herein, plaintiff testified and called as his only witnesses two fellow officers from Ottawa who testified plaintiff had satisfactorily performed all of his duties in Ottawa. Defendant City called Dr. Baker, who testified as to how the study of physical standards for police officers was developed, and Robert Weinkauf, Topeka Chief of Police, who testified as to the extreme variety of potentially dangerous conditions which may confront a police officer and the need for good vision without reliance on removable vision corrective devices. Matthew B. Works, past secretary with the Topeka Fire and Police Civil Service Commission, testified as to the civil service board’s adoption of standards for new Topeka police officers. Finally, Dr. James E. Sheedy, an optometrist and assistant professor at the University of California, School of Optometry, in Berkeley, testified as an expert on the need for standards for minimum uncorrected vision in police officers. He personally recommended more stringent standards than those before us. Dr. Sheedy, on cross-examination, testified that the new extended wear contact lenses might reduce some of the problems associated with glasses and regular contact lenses (being lost during scuffles, etc.). It was agreed some 55 Topeka officers on the force prior to adoption of the standards do not meet the visual acuity standards. However, it was also agreed no officers have been hired since adoption of the standards who did not meet the visual acuity standard. The first issue is whether defendant deprived plaintiff of liberty or property without due process of law under the Fourteenth Amendment to the United States Constitution. As stated in Board of Regents v. Roth, 408 U.S. 564, 33 L.Ed.2d 548, 92 S.Ct. 2701 (1972): “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” 408 U.S. at 577. Additionally: “It stretches the concept too far to suggest that a person is deprived of ‘liberty’ when he simply is not rehired in one job but remains as free as before to seek another.” 408 U.S. at 575. In Stoldt v. City of Toronto, 234 Kan. 957, 678 P.2d 153 (1984), we held that a night watchman fired by the City of Toronto had no property interest in his job either by statute or contract, and, hence, his termination did not violate his right to due process. It follows, a fortiori, that there is no property interest in obtaining municipal employment; neither is a liberty interest affected. We hold plaintiff s constitutional right to due process was not violated herein. The second issue is whether defendant denied plaintiff equal protection of the law contrary to the Fourteenth Amendment to the United States Constitution. Plaintiff was not hired by virtue of having failed the visual acuity standard. Is this a violation of his constitutional right to equal protection? We believe not. In analyzing denial of equal protection issues, the first matter of determination is whether the strict scrutiny standard or rational-basis standard is to be applied. Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 311-12, 49 L.Ed.2d 520, 96 S.Ct. 2562 (1976), involved an equal protection challenge to a Massachusetts law requiring retirement of highway patrol officers at age 50. In holding that the mandatory retirement provision did not violate the equal protection clause, the United States Supreme Court reasoned as follows: “We need state only briefly our reasons for agreeing that strict scrutiny is not the proper test for determining whether the mandatory retirement provision denies appellee equal protection. San Antonio School District v. Rodriguez, 411. U.S. 1, 16 (1973), reaffirmed that equal protection analysis requires strict scrutiny of a legislative classification only when the classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class. Mandatory retirement at age 50 under the Massachusetts statute involves neither situation. “This Court’s decisions give no support to the proposition that a right of governmental employment per se is fundamental. See San Antonio School District v. Rodriguez, supra; Lindsey v. Normet, 405 U.S. 56, 73 (1972); Dandridge v. Williams, [397 U.S. 471], at 485. Accordingly, we have expressly stated that a standard less than strict scrutiny ‘has consistently been applied to state legislation restricting the availability of employment opportunities.’ Ibid. “Nor does the class of uniformed state police officers over 50 constitute a suspect class for purposes of equal protection analysis. Rodriguez, supra, at 28, observed that a suspect class is one ‘saddled with such disabilities, or subject to such a history of purposeful unequal treatment or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.’ While the treatment of the aged in this Nation has not been wholly free of discrimination, such persons, unlike say, those who have been discriminated against on the basis of race or national origin, have not experienced a ‘history of purposeful unequal treatment’ or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities. The class subject to the compulsory retirement feature of the Massachusetts statute consists of uniformed state police officers over the age of 50. It cannot be said to discriminate only against the elderly. Rather, it draws a line at a certain age in middle life. But even old age does not define a ‘discrete and insular’ group, United States v. Carolene Products Co., 304 U.S. 144, 152-153, n. 4 (1938), in need of ‘extraordinary protection from the majoritarian political process.’ Instead, it marks a stage that each of us will reach if we live out our normal span. Even if the statute could be said to impose a penalty upon a class defined as the aged, it would not impose a distinction sufficiently akin to those classifications that we have found suspect to call for strict judicial scrutiny. “Under the circumstances, it is unnecessary to subject the State’s resolution of competing interests in this case to the degree of critical examination that our cases under the Equal Protection Clause recently have characterized as ‘strict judicial scrutiny.’ “We turn then to examine this state classification under the rational-basis standard. This inquiry employs a relatively relaxed standard reflecting the Court’s awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one. Perfection in making the necessary classifications is neither possible nor necessary. Dandridge v. Williams, supra, at 485. Such action by a legislature is presumed to be valid. “In this case, the Massachusetts statute clearly meets the requirements of the Equal Protection Clause, for the State’s classification rationally furthers the purpose identified by the State: Through mandatory retirement at age 50, the legislature seeks to protect the public by assuring physical preparedness of its uniformed police. Since physical ability generally declines with age, mandatory retirement at 50 serves to remove from police service those whose fitness for uniformed work presumptively has diminished with age. This clearly is rationally related to the State’s objective. There is no indication that § 26(3)(a) has the effect of excluding from service so few officers who are in fact unqualified as to render age 50 a criterion wholly unrelated to the objective of the statute. “That the State chooses not to determine fitness more precisely through individualized testing after age 50 is not to say that the objective of assuring physical fitness is not rationally furthered by a maximum-age limitation. It is only to say that with regard to the interest of all concerned, the State perhaps has not chosen the best means to accomplish this purpose. But where rationality is the test, a State ‘does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect.’ Dandridge v. Williams, 397 U.S., at 485.” 427 U.S. at 312-16. Obviously, visual acuity of its police officers is a reasonable concern of the City of Topeka. Police officers are not able to call a “time out” in emergencies while they look for their glasses or lost contact lenses. Their jobs often lead them into physical encounters with rowdy persons where such mishaps may occur. No one likes to contemplate a police officer trying to determine, before he fires, which of two blurry shapes is the felon and which is the hostage or a fellow officer. The visual acuity standard for new recruits was relatively new to the Topeka Police Department when this case arose. As a result, a number of officers already on the force could not meet it if called upon to do so. It would be poor public policy to hold that a police department cannot upgrade its officers by imposing standards without terminating all existing officers who could not meet the new standards. Vision seldom improves with age. Time and natural attrition should ultimately reduce the number of myopic officers on the force. The 55 officers not meeting the standard are not differentiated between near and farsighted individuals, so we do not know how many are myopic. Logically, farsightedness presents less of a problem for officers in emergency situations than does myopia. Applying the appropriate rational-basis standard, we conclude the minimum visual acuity standard herein is rationally related to the City’s" objective and plaintiff has not been denied equal protection of the laws. The third issue is whether the trial court erred in holding the defendant City’s failure to hire plaintiff was a violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 (1982) et seq. 29 U.S.C. § 794 (1982) prohibits discrimination against “otherwise qualified handicapped” individuals as defined in § 29 U.S.C. 706(7) (1982), which states: “(A) Except as otherwise provided in subparagraph (B), the term ‘handicapped individual’ means any individual who (i)-has a physical or mental disability which for such individual constitutes or results in a substantial handicap to employment and (ii) can reasonably be expected to benefit in terms of employability from vocational rehabilitation services provided pursuant to subchapters I and III of this chapter. “(B) Subject to the second sentence of this subparagraph, the term ‘handicapped individual’ means, for purposes of subchapters IV and V of this chapter, any person who (i) has a physical or mental impairment which substantially limits one or more of such person’s major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment. For purposes of sections 793 and 794 of this title as such sections relate to employment, such term does not include any individual who is an alcoholic or drug abuser whose current use of alcohol or drugs prevents such individual from performing the duties of the job in question or whose employment, by reason of such current alcohol or drug abuse, would constitute a direct threat to property or the safety of others.” The threshold question is, of course, whether plaintiff was a handicapped person within the definition of the above statute. An illuminating case on this issue is Jasany v. United States Postal Service, 755 F.2d 1244 (6th Cir. 1985). Jasany was a postal worker who was hired to operate a mail sorting machine. He has a mild case of strabismus (crossed eyes) which had never previously limited any of his activities. However, the condition precluded work on the mail sorting machine. Jasany was terminated for inability to perform the work for which he was hired and brought this action alleging violation of the federal Rehabilitation Act of 1973. In denying relief under the Act, the Sixth Circuit reasoned: “To assert a claim that he was discriminated against because of a physical handicap, Jasany must satisfy the threshold requirement that he is a handicapped person as defined by the statute. A handicapped person is one who ‘has a physical or mental impairment which substantially limits one or more of such person’s major life activities.’ 29 U.S.C. § 706(7)(B)(i) (emphasis added). ‘Major life activities’ is defined in 29 C.F.R. § 1613.702(c) as ‘functions, such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working’ (emphasis added). The District Court reasoned that Jasany’s strabismus impaired his ability to work on the LSM-ZMT, which qualified as a major life activity, and held that he was a handicapped person with the meaning of 29 U.S.C. § 706(7)(B). The appellees do not question that Jasany’s strabismus qualifies as a ‘physical or mental impairment.’ They do, however, challenge the conclusion that Jasany’s impairment meets the second part of the definition. “In E.E. Black, Ltd. v. Marshall, 497 F.Supp. 1088 (D.Hawaii 1980), the court carefully considered the definition of a handicapped individual in 29 U.S.C. § 706(7). It concluded that an impairment that interfered with an individual’s ability to do a particular job, but did not significantly decrease that individual’s ability to obtain satisfactory employment otherwise, was not substantially limiting within the meaning of the statute. 497 F.Supp. at 1099-1100; see also Salt Lake City Corp. v. Confer, 674 P.2d 632, 636-37 (Utah 1983) (‘one particular job for one particular employer cannot be a “major life activity” ’ (emphasis in original)) (interpreting identical language in state statute). The Black court suggested a number of factors relevant to determining whether an impairment substantially limited an individual’s employment potential — the number and type of jobs from which the impaired individual is disqualified, the geographical area to which the individual has reasonable access, and the individual’s job expectations and training. 497 F.Supp. at 1100-01. “Black was an appeal from an ALJ’s determination that an individual, refused employment as an apprentice carpenter because of a congenital back anomaly, was not handicapped because his impairment did not affect his employability generally. Although the appellant was not functionally limited, the refusal of employment was based on the ground that his impairment made him more prone to injury. The ALJ had reasoned that focusing on particular fields rather than on employability in general would lead by way of. illustration to the anomalous result that individuals too slow to play professional football or too short to play basketball would be able to surmount the initial burden of demonstrating that they were handicapped individuals in challenging their exclusion from those jobs. The Black court responded that the ALJ’s concerns were misplaced, since those individuals would not be protected by the Act, not because their ‘impairment’ did not substantially limit their employability, but because they were not capable of performing the particular job in question and hence were not ‘qualified handicapped individuals’ within the meaning of 60 C.F.R. § 60-741.2. Id. at 1099-1100; see also 29 C.F.R. § 1613.702(f). The court concluded that the policy of the defendant employer must be ascribed all employers offering the same or similar jobs, and that the appellant’s impairment constituted, for him, a substantial handicap to employment when the factors listed above were applied. Id. at 1102. “Black represents the most comprehensive examination by a court to date of the § 706(7) definition of ‘handicapped.’ While we agree with the Black court’s conclusion that in applying the definition, the impairment at issue must be evaluated with reference to the individual job seeker, that court did not adequately analyze the focus and relationship of the definitional elements of the statute — impairment, substantial limitation of a major life activity, and qualified person. See generally Haines, E.E. Black, Ltd. v. Marshall: A Penetrating Interpretation of ‘Handicapped Individual’ for Sections 503 and 504 of the Behabilitation Act of 1973 and for Various State Equal Employment Opportunity Statutes, 16 Loy.L.A.L.Rev. 527 (1983) (discussing ambiguity of statutory definition of ‘handicapped’). “The Black court was right in rejecting the ALJ’s illustrations of people incapable of playing professional sports, but for the wrong reason. Characteristics such as average height or strength that render an individual incapable of performing particular jobs are not covered by the statute because they are not impairments. The distinction can be an important one. The burden is on the plaintiff to establish the existence of an impairment that substantially limits a major life activity as an element of the plaintiff s prima facie case. Once a prima facie case has been presented, the burden shifts to the defendant employer to demonstrate that challenged criteria are job related and required by business necessity, and that reasonable accommodation is not possible. Prewitt v. United States Postal Service, 662 F.2d 292, 306-08 (5th Cir. 1981). If the plaintiff fails to establish a prima facie case, it is unnecessary to address the question of reasonable accommodation. “In the instant case, the parties stipulated that Jasany’s condition had never had any effect whatsoever on any of his activities, including his past work history and ability to carry out other duties at the post office apart from operation of the LSM-ZMT. Based upon this stipulation and in light of our analysis of the statutory definition, we find that the District Court erred as a matter of law in finding that the appellant was a handicapped person within the meaning of 29 U.S.C. § 706(7). Consequently, the appellant failed to establish a prima facie case of handicap discrimination.” 755 F.2d at 1248-50. The whole thrust of plaintiff s evidence in the case before us was that he was not a handicapped person. He (and fellow officers) testified he was able to perform his duties as an Ottawa safety officer (encompassing police and fire department duties). With corrective lenses, plaintiff s vision is 20/20. Plaintiff has worn glasses since his grade school days and testified to no problems or limitations in his activities. The rationale expressed in Jasany is applicable to the case before us. Plaintiff has a visual impairment, but he has failed to meet the threshold requirement that he is a handicapped person within the definition contained in 29 U.S.C. § 706(7)(B)(i). There is simply no evidence plaintiff has a “physical or mental impairment which substantially limits one or more of such person’s major life activities.” The trial court erred in holding the Rehabilitation Act was applicable herein and in holding plaintiff has been discriminated against under said Act. The fourth issue is whether the trial court erred in holding the defendant City’s failure to hire plaintiff was a violation of the Kansas Act Against Discrimination, K.S.A. 44-1001 et seq. The pertinent statutory provisions are as follows: “44-1001. Title of act; declaration of state policy and purpose. This act shall be known as the Kansas act against discrimination. It shall be deemed an exercise of the police power of the state for the protection of the public welfare, safety, health and peace of the people of this state. The practice or policy of discrimination against individuals in employment relations, in relation to free and public accommodations or in housing by reason of race, religion, color, sex, physical handicap, national origin or ancestry is a matter of concern to the state, since such discrimination threatens not only the rights and privileges of the inhabitants of the state of Kansas but menaces the institutions and foundations of a free democratic state. It is hereby declared to be the policy of the state of Kansas to eliminate and prevent discrimination in all employment relations, to eliminate and prevent discrimination, segregation, or separation in all places of public accommodations covered by this act, and to eliminate and prevent discrimination, segregation or separation in housing. “It is also declared to be the policy of this state to assure equal opportunities and encouragement to every citizen regardless of race, religion, color, sex, physical handicap, national origin or ancestry, in securing and holding, without discrimination, employment in any field of work or labor for which he is properly qualified, to assure equal opportunities to all persons within this state to full and equal public accommodations, and to assure equal opportunities in housing without distinction on account of race, religion, color, sex, physical handicap, national origin or ancestry. It is further declared that the opportunity to secure and to hold employment, the opportunity for full and equal public accommodations as covered by this act and the opportunity for full and equal housing are civil rights of every citizen. “To protect these rights, it is hereby declared to be the purpose of this act to establish and to provide a state commission having power to eliminate and prevent segregation and discrimination, or separation in employment, in all places of public accommodations covered by this act, and in housing because of race, religion, color, sex, physical handicap, national origin or ancestry, either by employers, labor organizations, employment agencies, realtors, financial institutions or other persons as hereinafter provided. “44-1002. Definitions. When used in this act: “(j) The term ‘physical handicap’ means the physical condition of a person, whether congenital or acquired by accident, injury or disease which constitutes a substantial disability, but is unrelated to such person’s ability to engage in a particular job or occupation. “44-1006. Construction of act. The provisions of this act shall be construed liberally for the accomplishment of the purposes thereof. Nothing contained in this act shall be deemed to repeal any of the provisions of any other law of this state relating to discrimination because of race, religion, color, sex, physical handicap, national origin or ancestry, unless the same is specifically repealed by this act. Nothing in the Kansas act against discrimination shall be construed to require the construction of any special facilities or fixtures for the physically handicapped. Nothing in this act shall be construed to mean that an employer shall be forced to hire unqualified or incompetent personnel, or discharge qualified or competent personnel. “44-1009. Unlawful practices; unlawful discriminatory practices, (a) It shall be an unlawful employment practice: “(1) For an employer, because of the race, religion, color, sex, physical handicap, national origin or ancestry of any person to refuse to hire or employ, or to bar or to discharge from employment such person or to otherwise discriminate against such person in compensation or in terms, conditions, or privileges of employment; or to limit, segregate, separate, classify or make any distinction in regards to employees; or to follow any employment procedure or practice which, in fact, results in discrimination, segregation or separation without a valid business motive.” As in the federal Rehabilitation Act of 1973, previously discussed, where a person is claiming discrimination under K.S.A. 44-1001 et seq., on the basis of being physically handicapped, he must satisfy the threshold requirement that he is a person with a physical handicap as defined by K.S.A. 44-1002(j). Although phrased differently in the federal and state legislation, the basic concept is similar. A physical impairment does not automatically equate to a handicap under either act — less than perfect is not the definition of handicap under either statute. The handicap must be a substantial disability unrelated to the ability to engage in the particular job or activity (K.S.A. 44-1002[j]) or a physical impairment which substantially limits one or more of such person’s major life activities. 29 U.S.C. § 706(7)(B)(i). Myopia corrected to 20/20 vision by means of corrective lenses is not a substantial disability within the definition of physical handicap contained in K.S.A. 44-1002(j). Here again, it should be noted there was no evidence plaintiff s myopia had ever limited or restricted his activities. Indeed, plaintiff introduced testimony of his ability to perform the Ottawa Public Safety Officer duties. Plaintiff s evidence, in fact, was intended to establish that his physical impairment did not constitute a handicap. We conclude the trial court erred in holding plaintiff had a physical handicap as defined by K.S.A. 44-1002(j) and that the defendant City violated the Kansas Act Against Discrimination (K.S.A. 44-1001 et seq.) in failing to hire plaintiff as a police officer. The fifth issue is whether the trial court erred in holding the defendant City’s failure to hire plaintiff was in violation of the Code of the City of Topeka § 22-99 (1985). The ordinance provides: “It shall be an unlawful employment practice for an official, department head, agent or employee of the city, because of . . . physical handicap, which is unrelated to the ability to perform a particular [task] or occupation ... to refuse to hire or employ, or to bar or to discharge from employment such person or to otherwise discriminate against such person . . . without a valid business motive.” “Physical handicap” is not defined in the ordinance. The parties agree that the term should be construed and interpreted similarly to the term “handicapped person” as defined in the federal Rehabilitation Act of 1973 (they disagree on what the correct interpretation of the federal statute is). We have, in deciding an earlier issue in this opinion, held that plaintiff s visual impairment correctable by glasses or contact lenses does not constitute a physical handicap within the meaning of 29 U.S.C. § 706 (7)(B)(i). We see no valid basis for interpreting the term “physical handicap” in the ordinance to be broader in •scope than the definition thereof in 29 U.S.C. § 706(7)(B)(i) or in K.S.A. 44-1002G). We conclude plaintiff did not have a physical handicap within the scope of the Code of the City of Topeka § 22-99, and the trial court erred in holding otherwise. The final issue is the propriety of allowing attorney fees to plaintiff under authority of 29 U.S.C. § 794a(b) (1982). The trial court allowed attorney fees with the amount thereof to be determined at a later date. Ultimately, the matter of the amount of attorney fees was left for determination by the appellate court. The federal statute (29 U.S.C. § 794a[b]) provides a court in its discretion may allow the prevailing party reasonable attorney fees. As plaintiff did not prevail on appeal, the issue is now moot. The judgment is reversed. Lockett, J., concurring.	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The opinion of the court was delivered by Prager, J.: This is an action brought by the city of Wichita seeking a declaratory judgment to determine the time when Wichita firemen were to be covered by the Workmen’s Compensation Act (K.S.A. 44-501 et seq.). The action was brought against the Wichita Firemen’s Relief Association, as the representative of the Wichita firemen. At the outset, in order to understand the legal issue presented, it would be helpful to consider the applicable statutes and review their legislative history. Prior to 1974, firemen were not covered by the Workmen’s Compensation Act unless a city or municipality agreed by contract for such coverage. In 1974, the Act was completely changed and updated. One of the most significant changes was that public employees were to be afforded coverage under the Act for the first time. To enable the taxing subdivisions and municipalities of the state to comply with state budgetary statutes, specifically K.S.A. 79-2925 through K.S.A. 79-2937, the 1974 amendments were not to take effect on July 1,1974, as were all other new provisions of the amended act, but were to be effective January 1, 1975, the beginning of the ensuing budget year for municipalities. (L. 1974, ch. 203, § 4[d], p. 677). Under the 1974 statute, firemen were mandatorily covered by the Act. However, due to problems with the firemen’s relief association, K.S.A. 44-505d was added in 1975 to allow the firemen to except themselves, by election, from coverage under the act, subject to agreement with the local governing body. K.S.A. 44-505d provides as follows: “44-505d. Firemen’s relief association members; procedure for exemption and for coverage under act after exemption therefrom, (a) The governing body of each firemen’s relief association in any unit of local government of this state shall conduct an election among all of the members of the association prior to August 1, 1975, to determine whether such members shall be excepted from the provisions of the workmen’s compensation act. If a majority of the members of any firemen’s relief association in any unit of local government of this state vote in such election to except the members of such association from the provisions of the workmen’s compensation act, the governing body of such association and the governing body of such unit of local government may enter into an agreement in writing to except such members from- the provisions of the workmen’s compensation act. Upon the execution of such agreement, the governing body of the firemen’s relief association shall file a copy of the agreement and a statement of election to except the members of such association from the provisions of the workmen’s compensation act with the director of workers’ compensation. “(b) Prior to August 1 in any year thereafter, the governing body of any firemen’s relief association which has been excepted from the provisions of the workmen’s compensation act under subsection (a), may conduct an election among all of the members of such association to determine whether such members shall be covered by the provisions of the workmen’s compensation act in the manner otherwise provided by law. If a majority of the members of such association vote in such election to come within the provisions of the workmen’s compensation act, the governing body of the association shall file with the director of workers’ compensation a written statement of election to come within the provisions of the workmen’s compensation act. Upon the filing of such statement, the members of such association shall be covered by the provisions of the workmen’s compensation act. “(c) Subsequent to an election resulting in coverage under the workmen’s compensation act under subsection (b) and prior to August 1 of any year thereafter, the governing body of any such firemen’s relief association may conduct an election in the manner provided in subsection (a) to except again the members of such association from the provisions of the workmen’s compensation act as provided in subsection (a).” (Emphasis supplied.) It should be noted that K.S.A. 44-505d(a) requires the election to determine whether the firemen shall be excepted from the provisions of the workmen’s compensation act must be held prior to August 1,1975. However, the decision of the firemen to except themselves from coverage under the act was not to be a final decision. K.S.A. 44-505d(b) gave the members of a firemen’s relief association the right to elect to again be covered by the act, if a majority of the members of such association vote to be covered in a later election. Section (b) requires that such election is to be held prior to August 1 of any year. If a majority of the members vote in favor of coverage, the governing body of the firemen’s relief association is required to file with the workers’ compensation director a written statement of election. Upon the filing of such statement, the members of the association shall be covered by the provisions of the act. K.S.A. 44-505d(c) permits members of a firemen’s relief association to change their minds again and elect to except themselves from coverage under the act by another election to be held prior to August 1 of any year thereafter. Prior to 1980, a municipality was not specifically authorized by statute to be a self-insurer under the Workmen’s Compensation Act. However, by a decision of the Supreme Court, a city was given that authority, provided there was compliance with the cash basis and budget statutes. City of Wichita v. Wyman, 158 Kan. 709, 150 P.2d 154 (1944). In 1980, K.S.A. 44-505f was enacted, authorizing a municipality to become a self-insurer under the act provided certain conditions were complied with. K.S.A. 44-505f provides as follows: “44-505f. City as self-insurer; establishment of reserve fund; retransfers, (a) The governing body of any city may act as a self-insurer under the workmen’s compensation act. If the governing body elects to act as a self-insurer, it shall by resolution create a separate fund in the budget and accounts of such city which shall be a reserve fund for the payment of workmen s compensation claims, judgments and expenses. Payments to such reserve fund may be made from moneys available to the city under the provisions of K.S.A. 44-505c, and amendments thereto, and by the transfer of moneys from any other funds or accounts of the city in reasonable proportion to the estimated cost of providing workmen’s compensation benefits to the employees of the city compensated from such funds. Any balance remaining in such reserve fund at the end of the fiscal year shall be carried forward into the reserve fund for succeeding fiscal years. Such fund shall not be subject to the provisions of K.S.A. 79-292S to 79-2937, inclusive, and acts amendatory thereof or supplemental thereto, except that in making the budget of such city, the amounts credited to and the amount on hand in such reserve fund, and the amount expended therefrom, shall be included in the annual budget for the information of the residents. Interest earned on the investment of moneys in such fund shall be credited to such fund. “(b) If the governing body of any city shall determine on an actuarial basis that money which has been credited to such fund, or any part thereof, is no longer needed for the purposes for which it was established, said governing body may transfer such amount not needed to the funds or accounts from which the money was received. Any money so transferred shall be budgeted in accordance with the provisions of K.S.A. 79-2925 to 79-2937, inclusive, and acts amendatory thereof or supplemental thereto. “(c) The provisions of this section shall be construed as supplemental to and as part of the workmen’s compensation act.” This statute is important in the present case because Wichita has elected to become a self-insurer and the provisions of K.S.A. 44-505f must be complied with. It should be noted that K.S.A. 44-505f(a) provides that, “If the governing body elects to act as a self-insurer, it shall by resolution create a separate fund in the budget and accounts of such city which shall be a reserve fund for the payment of workmen’s compensation claims, judgments and expenses.” That section further states: “Such fund shall not be subject to the provisions of K.S.A. 79-2925 to 79-2937, . . . except that in making the budget of such city, the amounts credited to and the amount on hand in such reserve fund, and the amount expended therefrom, shall be included in the annual budget for the information of the residents.” With this statutory history and background in mind, we turn to the facts presented in the case now before us. Prior to August 1, 1975, the Wichita firemen elected to except themselves from the Workmen’s Compensation Act pursuant to K.S.A. 44-505d(a). The City agreed to the exception. On or about December 1,1982, the City of Wichita was advised that the firemen desired to have another election under K.S.A. 44-505d(b) in order to be covered by the Act. The firemen held an election on January 1, 1983, and the majority of the firemen voted in favor of coverage. The results of the election were finalized and a statement was filed with the director of workers’ compensation on January 5,1983. A dispute immediately arose between the City and Wichita Firemen’s Relief Association as to the time when the Wichita firemen were to be covered by workers’ compensation. The firemen maintained that they were covered by the Act effective January 5, 1983, when the written statement of election was filed with the director of workers’ compensation. The City took the position that the election was not effective and workers’ compensation coverage was not to be provided until January 1, 1984, the beginning of the next budget year. In order to resolve the controversy, the City filed this declaratory judgment action in the district court of Sedgwick County on April 6, 1983. On October 21, 1983, the city and the firemen’s association entered into an agreement in which they recognized the ambiguity in the statute as to when the election by the firemen should become effective. Under the terms of the agreement, the firemen’s association agreed to file an election immediately to change or to clarify the effective date of the desired workers’ compensation coverage to be January 1, 1984. The association and the City then agreed to pay certain medical expenses for work-related injuries during the interim period. The parties recognized that the controversy was to be determined in the declaratory judgment action. In the event the court ruled in favor of the City’s position, the agreement was to be effective. In the event the court ruled against the City’s position, then the agreement was to become null and void. Thereafter, the case was submitted to the trial court on the facts set forth above. The trial court entered judgment in favor of the firemen, holding that the election by the firemen to be covered under the Workmen’s Compensation Act was effective upon the filing of the statement of election with the director of workers’ compensation in Topeka on January 5, 1983. In arriving at this decision, the district court found that the requirements for budgeting contained in K.S.A. 44-505f and K.S.A. 44-505d set forth above were not relevant nor material for the reason that the City can cover unbudgeted expenses for workers’ compensation by means of “no fund warrants.” The City then brought this appeal. It is the position of the City that the statutory language and the legislative history discussed above show that the provisions of K.S.A. 44-505d(b), which require that an election by a firemen’s association to come under the provisions of the workmen’s compensation act be conducted prior to August 1 in any year, were included in the statute for the sole purpose of enabling a city acting as a self-insurer to include provisions for the financing of its obligation to provide workers’ compensation coverage in its budget for the ensuing year. August 1 is a significant date because the governing body of a municipality is required by K.S.A. 79-2927 to meet not later than August 1 of each year to prepare its budget. The City argues that this provision indicates that the legislature was mindful of the budget law when it amended the Workmen’s Compensation Act in 1980 and, therefore, K.S.A. 44-505d(b) should be construed in light of the budget statutes and K.S.A. 44-505f to mean that an election must be held prior to August 1 of any year in order to become effective for the next budget year. The interpretation of a statute is a question of law, and it is the function of the court to interpret the statute to give it the effect intended by the legislature. The general rules for statutory construction are set forth in Szoboszlay v. Glessner, 233 Kan. 475, 477-78, 664 P.2d 1327 (1983), where the court stated: “[W]e are mindful of the fundamental rule of statutory construction, to which all others are subordinate, that the purpose and intent of the legislature governs when that intent can be ascertained from the statute. Kansas State Board of Healing Arts v. Dickerson, 220 Kan. 627, 630, 629 P.2d 187 (1981); In re Adoption of Trent, 229 Kan. 224, 228, 624 P.2d 433 (1981). The historical background and changes made in a statute are to be considered by the court in determining the legislative intent, and any changes and additions made in existing legislation raise a presumption that a change in meaning and effect was intended. Moore v. City of Lawrence, 232 Kan. 353, Syl. ¶ 6, 654 P.2d 445 (1982). In order to ascertain the legislative intent, courts are not permitted to consider only an isolated part or parts of an act but are required to consider and construe together all parts thereof in pari materia. Board of Education of U.S.D. 512 v. Vic Regnier Builders, Inc. 231 Kan. 731, 736, 648 P.2d 1143 (1982). 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, Syl. ¶ 1, 613 P.2d 1376 (1980); Lakeview Gardens, Inc. v. State, ex rel. Schneider, 221 Kan. 211, Syl. ¶ 2, 557 P.2d 1286 (1976).” Here, K.S.A. 44-505d(b) is obviously ambiguous because it requires that an election by the members of a firemen’s association to be restored to workers’ compensation coverage be conducted prior to August 1 of any year, but then provides that the members of the association are covered upon the filing of the statement of election with the director of workers’ compensation. There is no explanation in the statutes for the August 1 deadline. We have concluded that the position of the city is legally correct and that under K.S.A. 44-505d(b) an election by firemen to come within the provisions of the Workmen’s Compensation Act must be held prior to August 1 of any year in order for coverage to become effective at the beginning of the next budget year, as in the present case. The governing body of the City of Wichita has determined that it shall act as a self-insurer under the Workmen’s Compensation Act. Under K.S.A. 44-505f, in order to do so, it is required by resolution to create a separate fund in the budget and accounts of the City which shall be a reserve fund for the payment of workers’ compensation claims, judgments and expenses. The City is afforded a great deal of discretion in setting up and maintaining such a fund under K.S.A. 44-505f(a), which provides that the fund shall not be subject to the provisions of K.S.A. 79-2925 through 79-2937, except that “in making the budget of such city, the amounts credited to and the amount on hand in such reserve fund, and the amount expended therefrom, shall be included in the annual budget.” This language clearly demonstrates to us that the legislature intended that an election made pursuant to K.S.A. 44-505d(b) must be conducted prior to August 1 of any year in order to be effective for the next budget year. There is simply no other logical explanation for the August 1 deadline. We have concluded that the district court was in error in holding to the contrary. It is thus the holding of this court that the election by the members of the Wichita Firemen’s Relief Association to be covered under the Workmen’s Compensation Act, which was conducted on January 1, 1983, did not become effective until the City, by resolution, created a reserve fund in its budget for the payment of workers’ compensation claims, judgments, and expenses, and that coverage under the Workmen’s Compensation Act did not become effective until the beginning of the budget year commencing January 1, 1984. The judgment is reversed.	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The opinion of the court was delivered by Prager, J.: This is a direct appeal by the defendant, Dr. Thomas R. McNaught, from jury convictions of vehicular homicide (K.S.A. 21-3405), a class A misdemeanor, and driving under the influence of alcohol (DUI) (K.S.A. 1984 Supp. 8-1567), a class A misdemeanor. The defendant was acquitted of involuntary manslaughter (K.S.A. 1984 Supp. 21-3404), leaving the scene of an injury accident (K.S.A. 8-1602), failure to render aid (K.S.A. 1984 Supp. 8-1604), and failure to report an injury accident (K.S.A. 1984 Supp. 8-1606). Following the convictions, the trial court imposed sentences on each count and the defendant appealed. This case arose out of a tragic automobile accident which occurred on July 29, 1984, at about 8:32 p.m. on Northwest 46th Street north of the city of Topeka in Shawnee County. Just prior to the accident, Kathleen (Kathy) Bahr was riding a bicycle in a westerly direction. The bicycle was struck in the rear by an automobile driven by the defendant in a westerly direction on 46th Street. The evidence showed that, following the impact, Kathy Bahr’s body struck the hood of defendant’s vehicle, breaking the right side of the windshield, and she was then thrown over the back of the car. The bicycle became attached to the front side of the defendant’s vehicle. Defendant testified that, just prior to the accident, he had stopped at 46th Street and Rochester Road and then proceeded west on 46th Street with his cruise control set at 50 to 55 miles per hour which was within the posted speed limit. He testified that looking ahead he could see no objects when suddenly there was a bang on his windshield. He thought that someone must have thrown a rock or brick at his car and he did not want to stop three or four miles from home on a dark highway. It reminded him of a previous experience he had had in 1958 when a rock was dropped from an overpass onto his car as he was driving. Dr. McNaught felt that he should go home and report the occurrence to the police. He kept driving and watching the fracture move across the windshield. He was beginning to think he should stop when he saw a patrol car’s red lights in his rear view mirror. Defendant then stopped his car and remained inside until instructed by Deputy Sheriff Jeff Ritchie to open the car door. Deputy Ritchie testified that he first observed defendant’s vehicle on 46th Street with its bright lights on, traveling at a high rate of speed and emitting sparks from under its right side. The officer flashed his bright lights on and off but received no response from the oncoming vehicle. Ritchie continued to notice the sparks as the vehicle passed. Ritchie then turned his car around and pursued the vehicle. He caught up with it approximately one mile down the road. The vehicle stopped in the middle of the roadway without pulling over to the shoulder. Defendant asked the officer what the problem was. The officer looked at the defendant’s vehicle and noticed a smashed windshield covered with blood and hair. Officer Ritchie showed the defendant a bicycle which had fallen from underneath defendant’s car as it hit a bump just before it came to a stop. The defendant said that someone had thrown a brick at his vehicle approximately one mile back. Shortly thereafter, Trooper Thomas Wilson of the Kansas Highway Patrol arrived at the scene to assist Ritchie. Trooper Wilson noticed that defendant’s eyes were watery and bloodshot, and that he was swaying when walking. The trooper noticed a mild odor of alcohol on defendant’s breath. Trooper Thomas Wilson gave the defendant a horizontal gaze nystagmus test. Trooper Wilson then placed defendant under arrest for driving under the influence of alcohol. Wilson thereafter turned defendant over to Sergeant William Hudson of the Shawnee County Sheriff s Department who took defendant to the courthouse and performed a breath alcohol intoxilyzer test which tested .136 percent blood alcohol. The defendant was charged by Sgt. Hudson with driving under the influence of alcohol, failure to render aid at an injury accident, failure to report an injury accident, and leaving the scene of an injury accident. Later, after Kathy Bahr died, defendant was charged in the complaint with involuntary manslaughter (K.S.A. 1984 Supp. 21-3404) in addition to the charges already made by Sgt. Hudson. Further facts will be provided in the discussion of points raised on the appeal. The case was tried to a jury in Shawnee County District Court. The evidence presented by the parties was highly conflicting. Defendant testified, in substance, that from 4:15 p.m. to 6:30 p.m. he and a friend had consumed three highballs, each consisting of one and one-half ounces of bourbon, ice, and Tab. Dr. McNaught and the friend then sat down to dinner at 6:30 p.m, during which Dr. McNaught drank a four ounce glass of red wine. Dr. McNaught’s dinner companion left the house at 7:00 p.m. He testified that Dr. McNaught had no trouble walking or talking and displayed no effect of the alcohol at that time. Dr. McNaught testified that he had nothing else to drink after his friend left, and he then sat down to read a book. At around 8:30 p.m. he became hungry for something sweet. He drove to Sutton’s North Plaza where he purchased two bags of candy and returned to his car. He experienced no difficulty in walking, talking, paying for the candy or driving his car. Dr. McNaught then proceeded to drive his vehicle proceeding home on 46th Street and the collision occurred. There was evidence presented by defendant that the drivers of two other vehicles traveling on 46th Street had barely avoided striking the bicycle and had to suddenly turn aside in order to avoid a collision. The defendant also presented expert testimony that Kathy Bahr possibly had been struck by another automobile as she lay on the pavement after the collision with Dr. McNaught’s vehicle. The case was tried in a highly professional manner by able counsel for both sides and was submitted to the jury. The jury acquitted Dr. McNaught of the felony charge of involuntary manslaughter, leaving the scene of an injury accident, failure to render aid, and failure to report an injury accident. It found defendant guilty of vehicular homicide and driving under the influence of alcohol, both misdemeanors. Defendant filed a motion for a new trial which was denied. The court then sentenced defendant, and he filed a timely appeal. Defendant in his brief on appeal raises 13 separate points involving claimed errors at the pretrial and trial stages and in the imposition of sentence. The defendant’s first two issues on appeal involve the presence of cameras and audio recording devices in the courtroom at the preliminary hearing and again at the trial. Defendant maintains that the court’s allowance of photographic, video, and audio reproduction of the preliminary hearing and of the trial was inherently coercive to the jury and prevented a fair and impartial trial. The record shows that, prior to the preliminary hearing and in response to a telephone inquiry from the court, defense counsel wrote a letter to the judge objecting to cameras and audio reproduction of the preliminary hearing, which had been requested by the news media pursuant to a Supreme Court rule. Defendant filed a motion to establish his objections of record with a copy of the letter attached. Judge Allen wrote a letter to defense counsel explaining his reasons for allowing photographs and audio reproduction at the preliminary hearing. Judge Allen stated in his letter as follows: “The basis of your objection is the fact that potential jurors may see broadcasts and therefore photographing and audio reproduction at the preliminary hearing stage would be highly inflammatory and prejudicial to the defendant, particularly since this case has been the subject of numerous newspaper articles and television and radio station stories already. “Criminal cases are commonly the subject of pretrial publicity and they always have been so the basis of your objection addresses a matter which is familiar to our legal system and satisfactory methods have been devised to meet the problem without denying the news media of their privilege to report the news through the opportunity to voir dire jurors and, whenever necessary, change venue. “In this particular case, it is my opinion that the traditional methods devised by the law for handling this problem are appropriate to this case and that it would not be a proper exercise of the court’s discretion to deny the news media its privilege of photographing and audio reproduction of the preliminary hearing in this case.” Simply stated, defendant maintains that the photographing and audio reproduction of the preliminary hearing was inherently corruptive to potential jurors and thus hád the effect of preventing a fair and impartial trial later. A determination of this issue requires us to consider the background and development of news media coverage of court proceedings in Kansas. In 1937, the American Bar Association adopted Canon, 35 of the Canons of Judicial Ethics prohibiting broadcast and photographic coverage of court proceedings. For a discussion of the historical background of Canon 35 see Chandler v. Florida, 449 U.S. 560, 66 L.Ed.2d 740, 101 S.Ct. 802 (1981). In 1952, Canon 35 was amended to prohibit television coverage of judicial proceedings. The State of Colorado was the first state to amend Canon 35 to permit broadcast or photographic coverage of the judicial proceedings in the state courts. The prohibition in Canon 35 continued in effect when the American Bar Association replaced the Canons of Judicial Ethics in 1972 with the Code of Judicial Conduct. The Kansas Supreme Court, in Rule No. 601 of the Rules Relating to Judicial Conduct, adopted Canon 3A(7) (225 Kan. cxxi), which prohibited televising and taking pictures of the courtroom and the area adjacent thereto, subject to stated exceptions not involved here. In 1978, the American Bar Association’s Committee on Fair Trial — Free Press proposed that television, radio, and photographic coverage of court proceedings be permitted whenever the trial judge determined that such coverage would be unobtrusive and would not distract the attention of trial participants. However, the proposal was not adopted by the ABA House of Delegates. Since that time, the federal courts have continued to adhere to the prohibitions against the taking of photographs in the courtroom during the progress of judicial proceedings or radio broadcasting of judicial proceedings from the courtroom. In 1981, the Supreme Court of Kansas amended the Code of Judicial Conduct under Supreme Court Rule 601, exempting the Supreme Court from the prohibition. Canon 3A(7)(d) (228 Kan. cxxxi). By order dated January 6, 1981, the court adopted a new Supreme Court Rule No. 1.07 (235 Kan. lvii), which permitted the use of audio tape recorders to record any portion of a hearing before the Supreme Court. Such recordings were to be closely supervised to prevent distracting participants in the hearing or impairing the dignity of the proceedings or to prevent in any way the interference with the administration of justice. Thereafter, in April of 1981, the Supreme Court permitted the use of cameras by the news media to photograph proceedings before the Supreme Court during hearings conducted during the week of May 4, 1981, and later at proceedings held in June of 1981. On July 10, 1981, the Supreme Court entered an order providing for a one-year experiment for photographic and television news media coverage of Supreme Court proceedings commencing September 14, 1981, under restrictive procedures which limited the number of TV cameras and required a media pooling arrangement. By order entered June 16, 1982, the use of cameras by the news media was expanded to include the use of cameras in proceedings before the Court of Appeals. Television coverage in the Kansas appellate courts was made permanent. Since that time, the news media has been permitted television coverage in the appellate courts upon request. In 1983, the photographing and recording of proceedings before the district courts of Kansas on an experimental basis was considered. On December 15, 1983, the court authorized the news media and educational television stations to photograph and tape record public proceedings before the district courts of the 3rd, 5th, 10th, and 18th judicial districts during the calendar year of 1984. This was to be subject to certain procedures and conditions specifically adopted by the court in Supreme Court order 83 SC 14 (236 Kan. vii [Adv. Sheet No. 3]). The privilege granted by the Supreme Court order was to be exercised by the news media for the purpose of news dissemination and education only. Condition No. 2 of the order vested in the trial judge the power to limit and control audio and television coverage in the following language: “2. The privilege granted by Supreme Court Order 83 SC 14 does not limit or restrict the power, authority or responsibility of the trial judge to control the proceedings before the judge. The authority of the trial judge to exclude the news media or the public at a proceeding or during the testimony of a witness extends to any person engaging in the privilege authorized by Supreme Court Order 83 SC 14.” The order also contained other specific restrictions on the use of cameras and audio reproduction in trial court proceedings, including the requirement that the administrative judge of each district designate a media coordinator to work with the judges and the media in implementing the privilege conferred by the rule. All of these restrictions were designed to prevent disruption or interference with the judicial proceedings involved. On December 27, 1984, the Kansas Supreme Court, in response to certain objections, modified the conditions and proceedings in certain aspects and authorized the district courts in 13 of the 31 judicial districts to allow television cameras at proceedings during the calendar year 1985. Again the trial judge was given full power, authority, and responsibility to control media coverage at the trial, so that a fair trial would be insured. On December 20, 1985, the Supreme Court ordered that the rule remain in full force and effect until March 1, 1986. Generally speaking, the propriety of granting or denying permission to the media to broadcast, record, or photograph court proceedings involves weighing the constitutional guaranties of freedom of the press and the right to a public trial on the one hand and, on the other hand, the due process rights of the defendant and the power of the courts to control their proceedings in order to permit the fair and impartial administration of justice. The courts also generally agree that the constitutional right to a public trial does not entitle the press to broadcast, record, or photograph court proceedings, because the right to a public trial is primarily for the benefit of the defendant, and because the requirement of a public trial is satisfied when members of the press and public are permitted to attend a trial and to report what transpires. The effect of television coverage of judicial proceedings on the due process right of criminal defendants was the subject of the decision in Chandler v. Florida, 449 U.S. 560. In Chandler, the United States Supreme Court held that the due process rights of an accused are not inherently denied by television trial coverage, and that no per se constitutional rule prohibits the states from permitting broadcast or photographic coverage of criminal trial proceedings. The court pointed out, however, that depending upon the circumstances under which such coverage takes place, a due process violation might result. The courts have cautioned that there may be circumstances under which such coverage should be prohibited, particularly when it would have a substantial adverse effect on a trial participant. Whether broadcast or photographic coverage of court proceedings, particularly criminal trials, violates the constitutional rights of trial participants, particularly criminal defendants, depends upon the circumstances under which such coverage takes place. Suggested relevant circumstances are the location of the broadcast or photographic equipment in the courtroom; the degree of distraction or disruption, if any, caused by their presence; and the effect of the presence and use of such equipment on the defendant’s ability to present his case. There are many cases discussed in depth on this subject in an excellent annotation, Media Coverage of Court Proceedings, contained in 14 A.L.R. 4th 121. The leading case is Chandler v. Florida, mentioned heretofore. The problem of media audio and television coverage of a preliminary hearing, as distinguished from a trial proceeding, is somewhat different, because a preliminary hearing is a pretrial proceeding for the determination of probable cause, and trial jurors are not present so as to be personally affected by the media coverage of the preliminary hearing. It is well recognized, however, that adverse publicity at a preliminary hearing may endanger the ability of a defendant to receive a fair trial in situations where prospective trial jurors read or hear the adverse publicity and are affected in their judgment should they later sit as jurors. In Kansas City Star Co. v. Fossey, 230 Kan. 240, 630 P.2d 1176 (1981), this court discussed in depth the question as to when a district court may close a preliminary hearing, a bail hearing, or any other pretrial hearing, in order to avoid the prejudicial effect of media publicity on the fairness of a future trial. In that case, it was held that a trial court may close a preliminary hearing, jail hearing, or any other pretrial hearing, including a motion to suppress, and may close a record only if: (1) The dissemination of information from the pretrial proceeding and its record would create a clear and present danger to the fairness of the trial, and (2) the prejudicial effect of such information on trial fairness cannot be avoided by any reasonable alternative means. The usual remedy for adverse pretrial publicity is a change of venue and this should be so whether the adverse publicity is in the form of a printed newspaper or television exposure. In State v. Richard, 235 Kan. 355, 364, 681 P.2d 612 (1984), it was noted that this court has repeatedly held that one moving for a change of venue has the burden of establishing prejudice, and specific facts and circumstances must be established which indicate that it will be practically impossible to obtain an impartial jury in the original county to try the case. In State v. Crump, 232 Kan. 265, Syl. ¶ 6, 654 P.2d 922 (1982), the following rules were stated concerning a change of venue in criminal cases: “A change in venue in a criminal case lies within the sound discretion of the tidal court. The burden of proof is cast upon defendant to show prejudice in the community which will prevent him from obtaining a fair and impax'tial trial. Media publicity alone has never established prejudice per se. Defendaxit must show prejudice has reached the community to the degree it is impossible to get an impartial juxy.” To the same effect is State v. Taylor, 234 Kan. 401, 404, 673 P.2d 1140 (1983), which holds that when a change of venue is requested, the defendant must show that prejudice exists in the community, not by speculation, but as a demonstrable reality. In applying these rules to the factual circumstances shown in the record in the case now before us, it is clear that defendant has not shown that his rights were adversely affected by media coverage in the courthouse during the preliminary hearing, nor has he presented evidence that any individual juror’s ability to judge the defendant fairly was influenced by media coverage prior to trial. The voir dire of the jurors was not transcribed for the record nor were any affidavits or testimony obtained from any juror as to the effect of pretrial publicity. We hold that defendant’s first point on appeal is without merit. As to the defendant’s second point on the appeal, that the trial court erred in allowing photographic, audio, and video reproduction of the trial proceedings, we have likewise concluded that the defendant has failed to show prejudice resulting from media coverage at the trial. The record shows that the trial court on several occasions admonished the jurors to refrain from hearing or reading media reports of the trial. In Chandler v. Florida, 449 U.S. 560, the United States Supreme Court stated that to demonstrate prejudice in a specific case, a defendant must show something more than juror awareness that the trial is of sufficient interest to attract the attention of the media. In this case, the defendant has failed to show in the record that the media coverage in the courthouse prevented defendant from presenting his defense or in any way affected the ability of the jury to judge defendant fairly. We hold this point to be without merit. The third issue raised on the appeal is that the trial court erred in overruling defendant’s motion in limine to prohibit the wearing of Mothers Against Drunk Driving (MADD) and Students Against Drunk Driving (SADD) buttons by spectators at the trial on the basis that display of the buttons was inherently coercive to the jurors and prejudicial to the defendant’s right to a fair trial. The trial coürt denied the defendant’s motion, stating that defendant had not furnished the court with any authority in support of his motion. Following defendant’s conviction, he also alleged as one of the grounds in his motion for a new trial that the trial court erred in overruling his motion in limine to prohibit the display of MADD and SADD buttons by spectators at the trial. One of the fundamental rights of a criminal defendant is his right to a public trial. Trial court proceedings are generally required to be open and public, and a public trial is one which is public in the ordinary, common-sense meaning of the term. A public trial is not solely a private right of the parties, but one involving additional interests, including those of the public. The concept of a public trial implies that doors of the courtroom be kept open and that the public, or such portion thereof as may be conveniently accommodated, be admitted, subject to the right of the court to exclude objectionable characters. As long as the doors of a courtroom are open so that a reasonable proportion of the public is allowed to attend, the right to a public trial is satisfied. See 75 Am. Jur. 2d, Trial § 33, p. 146, and cases cited therein. In the administration of justice, the trial judge is charged with the preservation of order in his court and with the duty to see that justice is not obstructed by any person or persons whatsoever. A large measure of discretion resides in the trial court in this respect, and its exercise will not be disturbed on appeal unless it appears that prejudice resulted from the denial of a legal right. One of the ideals of criminal jurisprudence is that a defendant is entitled to a trial in a calm judicial atmosphere, to mininize any possibility of a decision being rendered on speculation or emotion rather than on the facts and logical reasoning. On occasions, however, the decorum of the courtroom has been distrubed by demonstrations by spectators. On such occasions, in determining whether or not a defendant was denied a fair trial, the decision of whether the jury was or possibly could have been influenced is one which is necessarily left to the sound discretion of the trial court, the exercise of which will not be disturbed unless it appears that prejudice resulted from the disturbance. In this regard, see the excellent annotation on “Disruptive Conduct of Spectators in Presence of Jury During Criminal Trial as Basis for Reversal, New Trial, or Mistrial” as contained in 29 A.L.R. 4th 659. These same principles of law are recognized in the Kansas cases. In State v. Franklin, 167 Kan. 706, 208 P.2d 195 (1949), the defendant was charged with murder in the second degree and, while the defendant was testifying in his own behalf, the mother of the victim of the homicide arose in the courtroom and screamed, “He killed my son,” repeating it four times. The Supreme Court on appeal stated that the real concern of the matter was whether the outburst had the effect of denying the defendant the fair trial to which he was entitled. The court stated that it realized that there are instances in which, depending upon the particular facts and circumstances, outbursts of emotion, weeping, fainting, applause, or other demonstrations could be considered so highly prejudicial to the rights of a defendant as to require the granting of a new trial, but the court did not feel that the case before it would fall within that class. The court stated that it was within the sound discretion of the trial judge to determine the effect of such outbursts or demonstrations and, in the absence of a clear showing that the jury was improperly affected thereby to the prejudice of the defendant, the ruling of the lower court in denying a new trial would not be disturbed. We also note State v. McMahan, 131 Kan. 257, 291 Pac. 745 (1930), where it was held that unless it is shown by the defendant that the demonstration was of such a character as to have influenced the jury or affected its verdict, it cannot be regarded as a ground for reversal of a conviction. In the case now before us, the defendant contends that the display of MADD and SADD buttons by spectators at the trial was inherently coercive and prejudicial to the defendant. The question of prejudice resulting from the display of MADD and SADD buttons by spectators is one of first impression in Kansas. Cases in other jurisdictions have addressed the same or similar issues. In State v. Johnson, 479 A.2d 1284 (Me. 1984), the defendant was convicted of manslaughter arising out of an automobile collision. It was held that a mere showing of awareness on the part of the jury of a well-known organization such as MADD was insufficient to demonstrate actual prejudice so as to require reversal as a matter of constitutional due process. In Smith v. State, 460 So. 2d 343 (Ala. Crim. App. 1984), the defendant Smith was convicted of murder resulting from a head-on automobile collision. The evidence showed that the defendant was given a blood alcohol test and the results greatly exceeded the statutory level of intoxication. On appeal, the defendant contended that the presence of Mrs. Dee Fine in the courtroom influenced the jury’s decision. Mrs. Fine was well known as being instrumental in organizing MADD in Alabama. The appellate court held that no prejudice had been shown and affirmed the conviction. In State v. McMurray, 40 Wash. App. 872, 700 P.2d 1203 (1985), defendant appealed his conviction of negligent homicide. The defendant had pleaded guilty to DUI arising out of the same accident. On appeal, defendant contended that his trial was unfair, because MADD members attended the trial. The opinion does not specifically state whether the MADD members displayed buttons to indicate their affiliation with MADD. The Washington Court of Appeals found no prejudice had been shown arising from the MADD members’ attendance at the trial which would justify reversing the conviction. In State v. Franklin, _ W.Va. _, 327 S.E.2d 449 (1985), the Supreme Court of Appeals of West Virginia held that the obvious presence of members of organizations dedicated to stiffer penalities for drunk drivers, who were wearing badges, did irreparable damage to defendant’s right to a fair trial and that the defendant’s conviction should be reversed. In that case, on voir dire at the outset of the trial, a woman appeared for jury duty wearing a large bright yellow MADD lapel button. Apparently the local sheriff had handed her the button and told her where to sit. Although the prospective juror was immediately excused, the sheriff and other members of MADD remained highly visible throughout the trial. The defense counsel repeatedly requested a mistrial or alternatively asked the court to order removal of MADD buttons or the spectators wearing them from the courtroom. The trial court took no action, although from 10 to 30 MADD demonstrators prominently displayed MADD buttons and sat directly in front of the jury throughout trial. The defendant contended that this demonstration by the MADD members deprived him of a fair and impartial trial. The trial court conducted an extensive voir dire on the subject of MADD and dismissed two potential jurors as a result of the voir dire but refused to take any other action against the MADD presence. The appellate court noted the right to public access to a criminal trial should be coordinated with the constitutional right of a defendant to a fair trial. The appellate court concluded that, under the factual circumstances shown in that case, the spectators were clearly distinguishable from other visitors in the courtroom and, led by the sheriff, they constituted a formidable, albeit passive, influence on the jury. The appellate court stated that it could not say that the presence of the spectators wearing MADD buttons, combined with the presence and activities of the uniformed sheriff leading them, did not do irreparable damage to the defendant’s right to a fair trial by an impartial jury. The record in the case now before us does not show the factual circumstances present on this issue. The record is absolutely silent regarding the number of MADD and SADD members attending the trial or how many of them wore buttons. During oral arguments in this case, defense counsel contended that there were always 20 to 30 members of MADD in the courtroom. The prosecutor stated that there were only three to four such persons present wearing buttons. Defense counsel contended that one juror voiced some concern about the incident to Judge Vickers after trial. The prosecution denied that allegation. The record does not contain an affidavit or the testimony of any person that the jurors showed any concern about the matter. We have carefully considered this issue and concluded that the defendant has failed to show that he was prejudiced in any way by the wearing of MADD and SADD buttons by spectators in the courtroom. A reading of the record and a consideration of the verdicts of the jury in this case show that the members of the jury carefully considered the evidence and were not prejudiced against the defendant. As noted heretofore in the opinion, the jury acquitted the defendant of involuntary manslaughter, the only felony charge, and also acquitted the defendant of leaving the scene of an injury accident, failure to render aid, and failure to report an injury accident. The jury found the defendant guilty of vehicular homicide and driving under the influence of alcohol, both misdemeanors. The trial judge was present at all times throughout the trial and had a full opportunity to observe the conduct of the spectators and consider any effect they might have on the jury. We cannot say as a matter of law that the trial court abused its discretion in refusing to require the spectators to remove their buttons or in denying the defendant’s motion for a new trial. Under all of the circumstances, we have concluded that the defendant has failed to show that he was prejudiced in any way by the conduct of the spectators, and we hold that he is not entitled to a reversal of his conviction based upon this issue. The fourth issue raised on appeal is that the trial court erred in refusing to admit evidence offered by the defense that the defendant had taken and passed a polygraph test. The rule in Kansas is that, in the absence of a stipulation between parties, the results of a polygraph examination are not admissible into evidence. See State v. Mason, 238 Kan. 129, 708 P.2d 963 (1985), citing many prior Kansas decisions. It has been said that one of the primary reasons for disallowing polygraph evidence is the weight commonly placed upon the evidence by the jury, which results in the jury function being usurped. State v. Martin, 237 Kan. 285, 293, 699 P.2d 486 (1985). In the present case there was no stipulation, and the trial court did not err in refusing to admit the results of the polygraph examination. The fifth point raised on the appeal is that the trial court erred in admitting the results of the intoxilyzer test into evidence. The defendant first contends that the machine was not shown to be sufficiently accurate or reliable to allow the results of the breath test to be considered by the jury. The Kansas Court of Appeals has addressed the foundation necessary to admit the results of such a test, stating that testimony which establishes a breathalyzer test machine has been approved and certified by the State as of the date of the test is sufficient foundation testimony to establish the validity of the test results from the machine. City of Shawnee v. Gruss, 2 Kan. App. 2d 131, 576 P.2d 239, rev. denied 225 Kan. 843 (1978); State v. Bristor, 9 Kan. App. 2d 404, 682 P.2d 122, rev’d on other grounds, 236 Kan. 313, 691 P.2d 1 (1984). In this case the intoxilyzer test was given to defendant on July 29,1984. The State presented testimony from the supervisor of the breath/alcohol program of the Kansas Department of Health that the particular intoxilyzer machine was tested on July 24, 1984, and again on July 31, 1984, and was functioning properly. Furthermore, he testified that at the time the test was given the particular intoxilyzer met all of the requirements required by law. This evidence was sufficient to show the reliability of the breath test conducted on the defendant and to provide a foundation for its admission into evidence. The defendant next argues that the intoxilyzer test was not administered at the direction of the arresting officer pursuant to K.S.A. 8-1001, which states that such test shall be administered at the direction of the arresting officer. Simply stated, Trooper Wilson arrested the defendant but he did not administer the intoxilyzer test which was administered later by Sgt. Hudson. Because of an agreement between the Highway Patrol and the Shawnee County sheriff s office covering territorial jurisdiction, the sheriff s department had supervisory jurisdiction over the highway where the accident occurred in this case. It is clear that State Highway Trooper Wilson, after placing the defendant under arrest, turned the defendant over to Sgt. Hudson at the scene of the accident. Hudson read defendant his Miranda rights, booked the defendant into jail, conducted the test, and also filed the notice to appear which made him the arresting officer. We have no hesitancy in holding that the statute was satisfied, because the intoxilyzer test was administered by one of the arresting officers. The defendant next contends that the defendant was not advised of his right to have an independent test of his breath conducted by a person of his own choosing nor was he afforded such opportunity to have such a test conducted at the time of his arrest. Although K.S.A. 8-1004 allows such an independent test, there is no requirement that the arresting officer advise the person arrested that he has a right to an independent test. The defendant also argues that the results of the test should not have been admitted, because the sample of defendant’s breath was not retained by the State for testing at a later time by an expert of defendant’s choosing. In State v. Young, 228 Kan. 355, 363, 614 P.2d 441 (1980), this court held that an arresting officer is not obligated to advise a person of his statutory right to an independent chemical test by a person of his choosing and that the failure of the arresting officer to automatically furnish the defendant with a sample of his breath is not a denial of due process. See also Standish v. Department of Revenue, 235 Kan. 900, 683 P.2d 1276 (1984), where the court discusses the warnings required, in addition to the Miranda warnings, which an officer making a DUI arrest should make. For the above reasons, we hold that the trial court did not err in admitting the results of the intoxilyzer test into evidence. The defendant next contends that the trial court erred in admitting the results of tests conducted by officers to show the visibility of the victim’s bicycle reflectors. Defendant argues that these tests were not disclosed pursuant to a discovery order and that the tests were not conducted under conditions similar to those existing at the time of the accident. The State contended that the tests were conducted solely for the purpose of determining whether Kathy Bahr’s bicycle reflectors were visible from a distance of 100 to 600 feet as required by K.S.A. 8-1592. Such evidence was not contemplated by the prosecution nor were the tests conducted until after defendant’s voir dire examination stressed the lack of visibility of the victim’s bicycle. We find no error in the admission of this evidence. The test results were relevant on the issue whether the bicycle reflectors satisfied the requirement of the statute that they be visible from 100 to 600 feet to an oncoming vehicle with low beam lights. The jury was made well aware that the test was conducted on level ground using stationary vehicles while the accident occurred on a hill while both the bicycle and defendant’s car were moving. We hold that the trial court did not commit error in admitting the evidence. The seventh issue on the appeal is whether the trial court erred in allowing the testimony of Steve Hale and Eileen Burnau, whose names were not endorsed on the information. Late endorsement of witnesses is covered by K.S.A. 1984 Supp. 22-3201(6). In State v. Costa, 228 Kan. 308, 315, 613 P.2d 1359 (1980), it was held that the endorsement of additional witnesses on an information is a matter of judicial discretion and will not be the basis for reversal absent proof of an abuse of discretion. The test is whether or not the rights of the defendant were unfairly prejudiced by the late endorsement. The purpose of the endorsement requirement is to prevent surprise to the defendant and to give him an opportunity to interview and examine the witnesses for the prosecution in advance of trial. See also State v. Royal, 234 Kan. 218, 670 P.2d 1337 (1983). The record shows that the name of Steve Hale was on a list of Soldier Township personnel furnished to the defense prior to the preliminary hearing. The defendant subpoened Hale for the preliminary, although Hale did not testify. The trial court permitted the prosecution to call Steve Hale as a witness but provided the defense an opportunity to interview him before he testified. We hold that, under the circumstances, the defendant was not prejudiced. Eileen Burnau testified at the preliminary hearing where she was cross-examined by the defense. She did not testify any differently at the trial. Under the circumstances, we hold that the trial court did not abuse its discretion in permitting her to testify at the trial. The eighth and ninth points raised on the appeal concern the trial court’s refusal to give certain instructions requested by defendant and also certain instructions submitted to the jury. We have considered the arguments of counsel and find no error. The propriety of instructions given to the jury is to be gauged by consideration of the instructions as a whole; each instruction must be considered in conjunction with all the others. State v. Price, 233 Kan. 706, 664 P.2d 869 (1983). Considered as a whole, the instructions as given adequately instructed the jury on all phases of the case. The tenth point raised is that the trial court erred in its answers to questions asked by the jurors during deliberations. We cannot say that the trial court erred in any way in its responses to the two questions presented to the court by the jury. The eleventh issue on appeal is whether the trial court erred in overruling defendant’s motion for dismissal or, in the alternative, defendant’s motion for acquittal. Simply stated, the defendant challenges the sufficiency of the evidence to sustain the two guilty verdicts in this case. A trial judge, passing on a defendant’s motion for judgment of acquittal or for dismissal because of insufficiency of the evidence, must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact therefrom, a reasonable mind or a rational trier of fact might fairly conclude guilt beyond a reasonable doubt. State v. Falke, 237 Kan. 668, 703 P.2d 1362 (1985). We have no hesitancy in holding that the record reflects sufficient evidence to show that the defendant was driving under the influence of alcohol and in a manner which deviated from the standard of care of a reasonable person. The jury was undoubtedly impressed by the fact that, following the impact of the deceased’s body with defendant’s windshield, he failed to stop and drove a mile down the highway, even though the deceased’s bicycle was being dragged under defendant’s car. The evidence presented at the trial was sufficient to satisfy the legal requirements and to sustain the two guilty verdicts. The twelfth point on appeal is that the trial court erred in denying defendant’s motion for a new trial. The basis of the motion includes all of the points previously discussed and rejected in this opinion. We find no error. The last issue raised in the brief of defendant is that the trial court imposed an illegal sentence. Prior to the sentence being imposed in this case, the trial court conducted an evidentiary hearing at which both the State and the defendant presented evidence. The trial court was also furnished a presentence report, a copy of which is not provided in the record. Counsel were then permitted to make their arguments as to what sentence would be appropriate. At the close of the hearing, the court imposed the following sentence: Defendant was sentenced to the custody of the Shawnee County jail for a period of one year for the offense of vehicular homicide (K.S.A. 21-3405) and for a period of six months for the offense of driving under the influence as defined by K.S.A. 1984 Supp. 8-1567. These terms are the maximum imprisonment authorized for these offenses. The court ordered the sentences to run consecutively. In addition, the defendant was ordered to pay a fine of $2,500 for vehicular homicide and a fine of $500 for driving under the influence. The fines imposed are the maximum fines provided as a penalty for each offense. The trial court thus imposed the maximum imprisonment and fines allowed by law for the offenses of which defendant had been convicted. The trial court, however, did not stop at that point. The trial court ordered that, upon his release from jail, the defendant enroll and successfully complete an alcohol/drug abuse program at Ridgeview Institute in Georgia. Defendant was further ordered to pay the parents of Kathleen Bahr restitution in the amount of $13,318.08, which included the cost of the funeral, tombstone, incidental expenses, and a $5,000 fee for the special prosecutor. The trial court further ordered that the defendant’s driver’s license be revoked pursuant to statute and be surrendered to the court when the conviction becomes final. The trial court further ordered that completion of the program at Ridge-view Institute and complete payment of restitution were conditions to be complied with before defendant’s driver’s license could be returned. Finally, defendant was assessed the statutorily required alcohol and safety program fee, probation services fee, and the costs of the action. The defendant was released on bond pending his appeal. The defendant first challenges his sentence on the basis that the court ignored the statutory mandates of K.S.A. 21-4601 and K.S.A. 21-4606. K.S.A. 21-4601 provides, in substance, that, in imposing sentence, a convicted defendant should be dealt with in accordance with his individual characteristics, circumstances, needs, and potentialities; that dangerous offenders be correctively treated in custody for long terms as needed; and that other offenders be dealt with by probation, suspended sentence, or fine whenever such disposition appears practicable and is not detrimental to the needs of public safety and the needs of the offender. K.S.A. 21-4606 provides that the court in imposing sentence shall fix the lowest possible term of imprisonment which, in the opinion of the court, is consistent with the needs of the defendant and the seriousness of the defendant’s crime. That statute then lists a number of factors to be considered by the court in fixing the term of imprisonment. In substance, defense counsel argues that the trial court completely disregarded the requirements and the factors set forth in the two statutes. He points out that Dr. McNaught had no prior history of alcohol abuse or of any misconduct and that the jury acquitted him on the only charge involving intentional or wanton misconduct. Defendant argues that the sentence was so excessive as to amount to an abuse of judicial discretion. We have considered the entire record of the trial, the evidence presented at the time of sentencing, and the remarks of the court when it imposed sentence. We have concluded that the trial court did not abuse its discretion in the imposition of the maximum jail sentence and the maximum fine for each of the charges for which the defendant was convicted. Generally, when a sentence is within the statutory limits set forth by the legislature, it will not be disturbed on appeal absent special circumstances showing an abuse of discretion or that the sentence is the result of prejudice, oppression, or corrupt motive. State v. Coberly, 233 Kan. 100, 661 P.2d 383 (1983). Prior to the imposition of sentence, the trial court obtained all possible information about the defendant’s past history, the nature of the offenses, and the defendant’s personal problems. There was evidence presented that the defendant has an alcohol problem which he has refused to recognize. The trial court may well have concluded that the imposition of jail time along with the fines were necessary to get his attention so that defendant would do something about his problem because, until defendant recognized his problem, he was a potential danger to the traveling public. We must also recognize that by imposing sentence in the Shawnee County jail, the trial court in its discretion could place the defendant upon parole when a showing was made later that a parole was indicated in the case. We hold that the trial court did not abuse its discretion in imposing the maximum jail sentences and fines and in making the jail sentences to run consecutively. Revocation of defendant’s driver’s license was authorized by K.S.A. 1984 Supp. 8-1567(j). At that point, the sentence was legal under the statute. However, the court, having imposed the maximum penalty provided for each offense, then, without placing defendant on probation, ordered defendant to pay restitution to the Bahr family and to enroll in and successfully complete an alcohol treatment program in the State of Georgia. Also after revoking defendant’s driver’s license as required by statute, the court required that defendant’s driver’s license be restored only after full restitution and after the alcohol treatment had been completed and paid for. The court also ordered defendant to pay the alcohol and safety program fee of $85 and the probation services fee of $25, even though the defendant had not been placed on probation at the time of sentence. The fixing and prescribing of penalties for criminal offenses is a legislative function, and a sentence must be imposed within the statutory authority. State v. Freeman, 223 Kan. 362, 369, 574 P.2d 950 (1978). K.S.A. 1984 Supp. 21-4603(2) provides: “(2) Whenever any person has been found guilty of a crime, the court may adjudge any of the following: “(a) Commit the defendant to the custody of the secretary of corrections or, if confinement is for a term less than one year, to jail for the term provided by law; “(b) impose the fine applicable to the offense; “(c) release the defendant on probation subject to such conditions as the court may deem appropriate, including orders requiring full or partial restitution; “(d) suspend the imposition of the sentence subject to such conditions as the court may deem appropriate, including orders requiring full or partial restitution; or “(e) impose any appropriate combination of (a), (b), (c) and (d). “In imposing a fine the court may authorize the payment thereof in installments. In releasing a defendant on probation the court shall direct that the defendant be under the supervision of a court services officer. “The court in committing a defendant to the custody of the secretary of corrections shall fix a maximum term of confinement within the limits provided by law. In those cases where the law does not fix a maximum term of confinement for the crime for which the defendant was convicted, the court shall fix the maximum term of such confinement. In all cases where the defendant is committed to the custody of the secretary of corrections, the court shall fix the minimum term within the limits provided by law.” In State v. Chilcote, 7 Kan. App. 2d 685, 647 P.2d 1349, rev. denied 231 Kan. 801 (1982), the Kansas Court of Appeals addressed the same basic issue presented in this case and held that, under K.S.A. 21-4603(2), the trial court may not sentence a defendant to imprisonment in an institution and also require the defendant to pay restitution. In Chilcote, defendant argued that the trial court could not order restitution in conjunction with imprisonment and restitution may not be ordered unless the sentence is suspended pursuant to K.S.A. 21-4603(2)(d) or unless probation is granted pursuant to K.S.A. 21-4603(2)(c). The Court stated: “In the instant case, the judge combined K.S.A. 21-4603(2)(a) (imprisonment) with an order of restitution; restitution may only be ordered pursuant to subsection (c) of that statute, which provides for release on probation subject to restitution, or subsection (d) thereof, providing for the suspension of sentence subject to restitution. Thus, the trial court has combined all of subsection (a) with only the restitution portion of either subsection (c) or (d). Said statute, at subsection (e), gives the trial court authority to ‘impose any appropriate combination of (a), (b), (c) and (d).’ (Emphasis added.) Appellant points out that subsection (e) does not say ‘or any parts thereof,’ and contends that the trial court therefore lacks authority to combine only parts of various subsections. We conclude that appellant is correct in this contention. In applying 21-4603(2)(e), a trial court may only impose sentences which are combinations of entire subsections. The use of the word ‘appropriate’ implies that the combination of penalties under the statute should be harmonious. Thus the trial court may not impose imprisonment, which mandates incarceration, with either probation or suspension of sentence, because to do so would be to decree mutually exclusive penalties. As we construe the statute, restitution may only be ordered in conjunction with probation or suspended sentence. It follows that incarceration coupled with restitution is not an ‘appropriate combination’ under subsection (e).” 7 Kan. App. 2d at 689-90. The Court of Appeals remanded the case to the trial court with orders to vacate that part of the sentence requiring the defendant to make restitution. The principles of law applied in State v. Chilcote are also applicable under the facts of this case. Here the maximum sentences of imprisonment and the maximum fines were imposed by the court. The court then, without placing the defendant on probation or suspending sentence, ordered restitution paid and, in addition, that defendant participate in a treatment program. The court also imposed other conditions which are usually imposed as conditions of probation. We hold that the trial court erred in ordering imprisonment, fines, restitution, and imposing the other conditions. Of course, should the trial court opt to resentence defendant within the time allowed for the revision of sentences, the court may cause the defendant to appear before it for resentencing. The trial court also has the authority to parole defendant from a portion of the sentence at some future date and impose appropriate conditions, including restitution. In view of our holding on this point, we do not consider it necessary to consider the other objections which defense counsel has raised in his brief pertaining to the conditions imposed in sentencing. At the oral argument, counsel for defendant raised a point which had not been raised before the trial court and which had not been raised in his brief on appeal. That point was whether the employment of an associate prosecutor pursuant to K.S.A. 19-717 and selected by the victim’s family, denied defendant due process of law. We decline to consider that issue, because it was neither timely raised nor presented to the trial court for its consideration. The judgment of conviction is affirmed. That portion of the sentence imposing imprisonment and a fine on each count is affirmed. 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The opinion of the court was delivered by Lockett, J.: This case is here on petition for review of a Court of Appeals decision. The First National Bank of Kingman, Kansas, (Bank) appealed a district court judgment entered against it and in favor of Dick Hatfield Chevrolet, Inc., (Hatfield) in the amount of $8,005.90 plus interest and costs. The Bank contended it had perfected a security interest in a pickup truck which had been sold by Hatfield to the Bank’s customer, Bob Watson Motors, Inc., (Watson). The check given for the purchase price was dishonored by the Bank when it was presented for payment. The Court of Appeals, in its opinion at 10 Kan. App. 2d 350, 699 P.2d 566 (1985), reversed the district court’s finding that the Bank and Watson were jointly and severally liable for the value of the pickup truck. Hatfield’s request for review was accepted by this court. First National Bank of Kingman, Kansas, had an agreement to floor plan part of Watson’s inventory. The Bank held a security interest on two pickups which were apart of Watson’s inventory. Because Watson was financially insecure, federal authorities had required the Bank to monitor Watson’s account as a problem loan on a daily basis for several months prior to these events. Prior to August 13, 1981, Hatfield had a customer interested in purchasing a pickup similar to one floor planned by Watson. Hatfield contacted Watson and entered into a dealer trade with Watson in which Hatfield would trade to Watson a 1981 Fleet-side pickup for $8,005.90, and Watson in return would trade to Hatfield a 1981 Fleetside pickup for $7,849.55 for sale to Hatfield’s customer. At the time of the dealer trade, Hatfield and Watson were required to exchange the manufacturer’s statement of origin (MSO) and checks for the price of the vehicles. The Bank, in addition to its loan and security agreement with Watson, had possession of the MSO for the truck Watson wished to trade to Hatfield. The Bank, therefore, had to approve the trade. Bob Watson, president of Watson, contacted Reynolds German, the Bank officer monitoring the Watson account. Watson informed German of the proposed dealer trade with Hatfield. Watson explained he would receive a check from Hatfield for its pickup and in return Watson would deliver its check to Hatfield for the Hatfield pickup. Watson further explained to German that he needed the Bank to release both the pickup from its security agreement and the MSO on the pickup Watson was trading to Hatfield. German agreed to the trade, deleted the pickup identification number from the security agreement and gave the MSO for the pickup listed under the Bank’s security agreement to Bob Watson. German told Bob Watson to bring the Bank the MSO for the truck Watson was purchasing from Hatfield and Hatfield’s check. On August 13, 1981, Watson delivered the MSO for the truck he received from Hatfield and Hatfield’s check for the Watson pickup to the Bank. Later Hatfield’s check was deposited in Watson’s checking account and the proceeds were eventually applied to Watson’s loan from the Bank. The Bank inadvertently inserted the wrong vehicle identification number for the Hatfield pickup into its security agreement with Watson. On August 18, the Hatfield check arrived through normal banking channels together with 29 other checks of Watson’s. Watson did not have sufficient funds to pay all 30 of its checks. The Bank honored 28 checks drawn on Watson’s account. Hatfield’s check was one of the two checks the Bank decided to return as insufficient. On August 22, 1981, Watson went out of business and turned its assets over to the Bank. On August 26,1981, Hatfield received the dishonored check and demanded possession of the truck that he had traded to Watson, or, in the alternative, that the check be made good. Both Watson and the Bank refused to meet either demand. On September 10, 1981, the Bank sold the pickup to another dealer, the proceeds from which were applied to the Watson promissory note originally used to finance the purchase of the two pickups. On September 9, 1981, Hatfield filed suit against Watson and the Bank requesting either payment or return of the truck and also requesting a restraining order to prevent the defendants from disposing of the vehicle. Despite this, the truck was sold on September 10 by the Bank and the proceeds applied to Watson’s loan with the Bank. At trial, Hatfield was granted summary judgment. Both Watson and the Bank acknowledged that Hatfield was entitled to judgment, but did not agree as against whom judgment should run. The trial court held under two theories that the Bank and Watson were jointly and severally liable to Hatfield for the value of the pickup track. The Bank appealed, contending that it had a perfected security interest in the truck and as a good faith purchaser had acquired title to the pickup from Watson. Hatfield contended that the Bank did not have a perfected security interest in the track because of an error it had made in recording the identification number and because the Bank was not a good faith purchaser for value. Relying on Trapani v. Universal Credit Co., 151 Kan. 715, 100 P.2d 735 (1940), the trial court held that the Bank did not acquire a valid security interest in the pickup Watson Motors received from Hatfield because of the error it made in recording the identification number. In Trapani this court had determined that transposed digits of the motor number in a security agreement did not impart constructive notice of the lien to a prospective purchaser of the conditional sales contract. The Court of Appeals determined that the incorrect identification number did not prevent the Bank from obtaining a valid security interest in the truck, that a dealer trade took place and that the pickup subject to the trade was covered under the earlier financing statements. Thus, under the UCC, the later security agreement containing the error was encompassed by the original financing statement. For a complete review, see 10 Kan. App. 2d 350. Citing the 1983 Kansas Comment to K.S.A. 84-9-110, the Court of Appeals agreed that pre-UCC Kansas cash sale case law was changed by 84-9-110. Iola State Bank v. Bolan, 235 Kan 175, 679 P.2d 720 (1984). We agree with the Court of Appeals that the trial court’s reliance on Trapani was inappropriate. The cases cited by the Court of Appeals, however, are inapplicable. In those cases, a buyer was attempting to invalidate a security agreement in which there was a misdescription of the collateral. In the present case the seller is complaining about the misdescription. The seller, however, could not have been misled by the misdescription because the error in the identification number was not present until after the sale. Under the Uniform Commercial Code, one of the requirements for a security interest to attach with respect to collateral is that the debtor sign a security agreement that contains a description of the collateral. K.S.A. 84-9-203(l)(a). A financing statement is sufficient if it gives the names of the debtor and the secured party, and contains a statement indicating the types or describing the items of collateral. K.S.A. 84-9-402(1). K.S.A. 84-9-110 provides that a description of personal property is sufficient if it reasonably identifies what is described. The Court of Appeals correctly determined that the description of the personal property was sufficient for the Bank’s security interest to attach. Hatfield argues that Watson had no rights in the vehicle received by Watson that could be subjected to a security interest because the check drawn by Watson to purchase the vehicle was dishonored. Hatfield relies on K.S.A. 84-2-511(3), which makes payment by check conditional and defeats payment if the check is dishonored. Under Hatfield’s theory, Watson’s rights in the vehicle were terminated upon dishonor of the check, and therefore the Bank’s security interest could not attach. The Bank claims under K.S.A. 84-2-403(1) it obtained title to the pickup when Hatfield traded the vehicle to Watson. The Bank, a secured creditor of Watson’s under K.S.A. 84-2-403(4), was a purchaser in good faith for value, thereby acquiring title to the vehicle held by Watson. Matter of Samuels & Co., Inc., 526 F.2d 1238 (5th Cir.), cert. denied 429 U.S. 834 (1976). A defaulting buyer has the power to transfer greater title than it can claim under the Code, although such a transfer is admittedly wrongful as against the seller. K.S.A. 84-2-403(l)(b) provides in part that when goods have been delivered under a transaction of purchase the purchaser has power to transfer good title even though the delivery was in exchange for a check which is later dishonored. This section indicates that despite the fact Watson tendered a check which was subsequently dishonored, it could transfer good title to a “good faith purchaser for value.” A purchaser is defined in K.S.A. 84-1-201(33) as “a person who takes by purchase.” K.S.A. 84-1-201(32) defines purchase as including “taking by sale, discount, negotiation, mortgage, pledge, lien, issue or reissue, gift or any other voluntary transaction creating an interest in property.” K.S.A. 84-l-201(44)(b) provides that a person gives “value” for rights if he acquires them “as security for or in total or partial satisfaction of a preexisting claim.” K.S.A. 84-9-105(l)(m) makes a purchaser a secured party under Article 9. Based on the UCC, the Court of Appeals determined that the Bank gave value for the vehicle, acted in good faith, and therefore acquired a security interest in the pickup. Is the Bank a good faith purchaser who acquired title under its security agreement with Watson? K.S.A. 84-1-201(19) defines “good faith” as meaning honesty in fact in the conduct or transaction concerned. The trial court’s second finding was that the Bank was not a good faith purchaser and therefore acquired no title to the Hatfield pickup under its security agreement. The facts in this case include: 1. Watson was indebted to the Bank under a security agreement with Bank. 2. The Bank’s examiners had criticized the Watson loan. 3. The Bank was informed that Watson and Hatfield had entered into a dealer agreement to trade pickups. These facts alone would not be sufficient to defeat the Bank’s rights to the after-acquired property under its security agreement with Watson since: (a) there was a security agreement to which the interest attached; (b) the Bank, the secured party, had given value; and (c) Watson, the debtor, had rights in the collateral. In addition, under the dealer trade agreement between Hatfield, Watson and the Bank: 4. The Bank, as a necessary party to the dealer trade, agreed to release its security interest in the Watson pickup and provide the MSO for that vehicle to Watson to complete the trade between Watson and Hatfield. The Bank acted upon Watson’s agreement to return to the Bank the MSO for the Hatfield pickup and Hatfield’s check. 5. The Bank received Hatfield’s check and applied those funds to the Watson note to replace the pickup it had released from its security agreement with Watson. 6. The Bank, when it received Watson’s check to Hatfield for payment of the vehicle Watson had received, instead of honoring the check to complete the dealer trade, determined to pay funds in the Watson account to holders of other checks. Watson’s check to Hatfield, drawn on Watson’s account, was returned insufficient by the Bank. 7. When Hatfield demanded the Bank either complete the dealer trade as it had previously agreed or return Hatfield’s pickup, the Bank refused to do either. Instead, the Bank sold the pickup and applied the proceeds to Watson’s loan with the Bank. The Bank profited twice by its actions: (1) the Bank’s interest in the Watson pickup under the security agreement was converted to cash, and (2) the Hatfield vehicle was obtained by the Bank, then sold and the proceeds of the sale applied to reduce Watson’s loan to the Bank. By refusing to complete its agreement with Watson and Hatfield, the Bank was enriched by $7,849.55. The Bank’s actions cannot be described as honesty in fact in the conduct or the transaction concerned. The Bank was not a good faith purchaser; therefore, its security interest did not attach to the Hatfield pickup. We conclude the Court of Appeals erred in reversing the district court. The Court of Appeals is reversed and the district court is affirmed.	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The opinion of the court was delivered by Rosen, J.: Mark A. Riojas appeals from his convictions and sentence for one count of felony murder, K.S.A. 21-3401 (b), and one count of aggravated robbery, K.S.A. 21-3427. Jurisdiction lies with this court under K.S.A. 22-3601(b)(l). Richard Quinones was working as the third-shift manager at a Burger King in Wichita, Kansas, on the morning of March 11,2006. Shortly before 1:40 a.m., he saw two men, one African-American and one Hispanic, running toward the Burger King from the parking lot of a McDonald’s across the street. It appeared that the Hispanic man was chasing the African-American man. The Hispanic man then tackled the other man and took him to the ground. They struggled, and then the African-American man got up and began to run more slowly toward the Burger King. The Hispanic man pursued him and again forcefully took him to the ground. Due to a wall that partially obstructed his vision, Quinones was unable to see what happened next. Another employee, Jose O’Campo, saw the man who was with the African-American man lean over and search through the fallen man’s pockets, grab a wallet, and search through it. He saw blood on the fallen man’s shirt, and told Quinones that someone needed help. After about a minute, Quinones and another employee, Uzziel Portugal, went out of the store to determine what was going on. The Hispanic man said that “nothing’s going on, eveiything is good.” The African-American man pulled himself off the ground slightly and said, “Help me; I’ve been stabbed.” O’Campo then called 911, and Quinones spoke with the dispatch operator. Quinones and Portugal started to walk toward the pair of men and saw that the African-American man had blood on him. The Hispanic man then told them that the African-American man needed help and they should call 911. The Hispanic man kept his left hand concealed behind his back while talking to Quinones. He then left the scene when Quinones began talking to the other man. The victim told Quinones that he had been stabbed by “the person that just walked away” and said the attacker was Mexican and was named “Mike.” Quinones later identified Riojas as the man whom he saw leaving the scene. The victim then asked Portugal to call the victim’s mother. Portugal called the number that the victim provided three times and reached an answering machine each time. When the police arrived, the victim had become incoherent. His pulse had failed by the time medical support arrived. He was pronounced dead at the hospital as a result of a stab wound to the chest. Investigators determined that the victim was named Kenny Brown and that he had been staying at the Red Carpet Inn a few blocks away from the Burger King. Police interviewed people at the Red Carpet and identified a suspect who went by the name “Mexican Mike.” Later that morning, the police encountered Riojas walking on a sidewalk. Because he matched the description of Brown’s assailant, police told him he had been named as someone who might know who Mexican Mike was and asked to speak to him at police headquarters. Riojas consented to an interview. He initially told police that he met Brown at the apartment of Anthony Dailey and Brenda Sullivan. Riojas was assisting in a drug transaction and accompanied Brown to the house of a man named Miguel. Riojas waited outside, and after a while he watched Brown run out of the house with Miguel in pursuit. Riojas ran after them, but was slowed down because his feet hurt. After removing his shoes, he continued to follow the two men. He observed Miguel chase Brown towards the McDonald’s, onto a street, and then back toward the Burger King, where he fell on top of Brown. Riojas ran over to assist Brown, and, when several men came out of the Burger King, Riojas asked them to call 911. Riojas stated that, while trying to help Brown, Brown asked him to call his mother and gave him his PIN for a financial services card. He asked Riojas to take his credit card from his wallet and use it to pay his drug debt to Miguel. Riojas attempted to make withdrawals at a QuikTrip and the hospital where Brown was pronounced dead. Riojas then accompanied police to the area where Miguel’s house was supposed to be, but he was unable to identify the house. They then drove to the apartment of Mike Nelson, where Riojas said he was living, but Riojas did not have a key to the apartment and Nelson was not home. They finally drove to the Red Carpet Inn to speak with Anthony Dailey and Brenda Sullivan. Dailey looked at Riojas and said he knew him but could not remember his name. Brenda Sullivan then came outside and identified Riojas as either “Mexican Mike” or “Mexican Mark.” That afternoon investigators returned to Nelson’s apartment, where they located a forklift safety card belonging to the victim. On March 16, 2007, the State filed a complaint/information charging Riojas with one count of first-degree felony murder, K.S.A. 21-3401, and one count of aggravated robbery, K.S.A. 21-3427. Following a jury trial, Riojas was found guilty of both counts. The trial court sentenced Riojas to a term of fife imprisonment for felony murder and a consecutive term of 233 months for aggravated robbery. He timely appeals. Riojas first argues that the trial court erroneously admitted evidence of a prior bad act contrary to K.S.A. 60-455. Brenda Sullivan testified that Riojas visited her and her husband’s hotel room and, in the course of playing with a knife, stated that he had cut people in the past. He contends on appeal that her testimony constituted impermissible evidence of prior bad conduct and propensity to attack people with knives. When considering a challenge to the admission of evidence, the first step is to determine whether the evidence is relevant. State v. Carapezza, 286 Kan. 992, 997, 191 P.3d 256 (2008). All relevant evidence is admissible unless prohibited by statute. K.S.A. 60-407(f). Relevant evidence is any “evidence having any tendency in reason to prove any material fact.” K.S.A. 60-401(b). Relevance is established by a material or logical connection between the asserted facts and the inference or result that they are intended to establish. Carapezza, 286 Kan. at 997. After relevance is established, the second step requires the court to apply the statutory rules governing the admission and exclusion of evidence. These rules are applied either as a matter of law or in the exercise of the trial court’s discretion, depending on the rule in question. The standard of review of the probative element of K.S.A. 60-455 evidence is abuse of discretion. Carapezza, 286 Kan. at 998. Analysis under K.S.A. 60-455 requires several steps. The court must determine that the evidence is relevant to prove a material fact. The court must also determine that the material fact is in dispute. The court must further determine that the probative value of the evidence outweighs the potential for producing undue prejudice. Finally, the court must give a hmiting instruction informing the juiy of the specific purpose for admitting whatever 60-455 evidence comes in. Carapezza, 286 Kan. at 998 (quoting State v. Reid, 286 Kan. 494, Syl. ¶ 5, 186 P.3d 713 [2008]). Anthony Dailey testified on direct examination that Riojas had visited his hotel room earlier in the day of the murder: “[Dailey] A. . . . [H]e brung some juice and some eggs and stuff. And I guess a litde while after he left, I discovered I had a knife missing. And that’s when I called Keith Dorsey and told him if he see Mike, to get my knife from him. “A. Uh, I believe it had a red handle on it. And one part was a knife and one part was like a razor. Two blades. Like one razor and one knife. “Q. You called your buddy so he could tell Mexican Mike to bring it back to you. “A. Right. Right. “Q. Why did you think he is the one that took it? “A. ’Cause I had noticed it. And then, after he had left, I noticed it missing.” On cross-examination, it was pointed out that a number of people had been in the hotel room smoking drugs. Dailey testified that he did not see Riojas take the knife and that other people had been in and out of the room. Early during the direct examination of Brenda Sullivan, the following exchange took place: “Q. Could you tell the jury about your knife that was in the room and how — what it had to do with Mexican Mike. “A. Well, it started off when — he was playing with it. We was waiting on my husband to get back, and he was playing with it, clicking it open, telling me how, uh, how he used to cut people from something to the sternum. And he was a little bit vivid, so I took it from him, ‘cause it was, you know, getting a little out of control. So I took it and I put it on my table. The knife is a red knife. About — I’d say about that long. It got a blade on one end and a razor on tifie other end.” (Emphasis added.) She then testified that she was alone in the hotel room with Riojas when the conversation about the knife took place. She proceeded to testify that Riojas later went down the hall to another room and then returned: “A. ... I tell him he can’t come in there like that, you know. And he was all excited. He wanted something — he wanted a weapon or something. And I was like, No, you can’t have, you know — Anthony told him — I think Anthony was the one that told him, No, we don’t have no weapons. And then, when he left, then I noticed that — we noticed that the knife was gone. “A. ‘Cause he came in to get his paper — he had like a folder and some other stuff in there when he had — when he left, so he came in to get that. And then, later on, I missed my knife.” Riojas contends on appeal that Sullivan’s statement “how he used to cut people from something to the sternum” violated K.S.A. 60-455. K.S.A. 60-455 provides: “Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” Before trial, Riojas’ counsel filed a motion in limine seeking to bar the State from introducing evidence implying that he had a reputation for criminal activity. The motion specified references to Riojas being on parole and suggestions that he was a suspect in or had committed any uncharged crime, particularly, the theft of some DVD’s. At the hearing on the motion, counsel for Riojas specified that he wanted the court to exclude Brenda Sullivan’s testimony that “my client made a statement that he was good with a knife and had hurt someone before.” The trial court elected to allow the testimony because “the prejudice does not overcome the probative value of that statement.” Riojas did not object to any of Sullivan’s trial testimony regarding the knife. K.S.A. 60-404 requires a timely and specific objection to the admission of evidence at a trial in order to preserve issues arising from that admission for appeal. The statute states: “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.” We require that a party must malee a timely and specific objection in order to preserve an issue for appeal relating to the admissibility of evidence. K.S.A. 60-404; Carapezza, 286 Kan. at 1002; State v. Francis, 282 Kan. 120, 138, 145 P.3d 48 (2006) (defendant precluded from raising issue of admission of evidence under K.S.A. 60-455 because defendant failed to object at trial). This rule holds true even if the trial court already denied a motion to suppress evidence prior to trial. State v. Stevens, 285 Kan. 307, 326, 172 P.3d 570 (2007). The contemporaneous objection requirement is a “salutary procedural tool” that gives the trial court “the opportunity to conduct the trial without using tainted evidence, and thus avoid possible reversal and a new trial.” Baker v. State, 204 Kan. 607, 611, 464 P.2d 212 (1970). Appellate courts have recognized three exceptions to the rule that issues may not be raised for the first time on appeal: (1) where the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) where consideration of the theory is necessary to serve tire ends of justice or to prevent denial of fundamental rights; and (3) where the judgment of the district court may be upheld on appeal even though that court may have relied on the wrong ground or assigned a wrong reason for its decision. State v. Poulton, 286 Kan. 1, 5, 179 P.3d 1145 (2008). In the present case, we find that the exceptions do not apply. Further, Riojas’ counsel not only failed to make a timely objection to Sullivan’s statement; counsel also raised the issue with Riojas on redirect examination: “Q. Did you ever tell Miss Sullivan that you had cut a person from sternum to — cut a person — “A. No. “Q. — from sternum to ■— “A. No, ma’am. She had asked me what iype of work I had done one time when we were alone, and she — that’s one of the times where she made some advances, and I told her, Nah, I worked, you know, in IBP packing house, you know, slaughter. “Q. Did you tell her you worked at a slaughterhouse? “A. Yes, ma’am. That I worked on a kill floor one time, and it’s — you know, yeah. But I told her that what we did was, every now and then, you would have a cow that had a fetus, and when you’d catch the fetus and then you would have to send the fetus on another line. “Q. Never told her you did that to a person. “A. No, ma’am. I never did.” Riojas did not object to her statement, and then, he proceeded to discuss her statement during his own testimony. A defendant may not use evidence to his or her own advantage and then complain of the action on appeal. The trial court did not err in admitting the statement. Riojas next argues that the trial court erred in allowing photographs of the victim’s body, bloody shirt, and medical treatment. The State offered photographic exhibits 4A, 4B, 4C, 13A, 13D, 13H, 14A, 14B, 14C, and 19, which showed the victim’s head and torso, emergency responders performing chest compressions on the victim, the victim’s lifeless body, the knife wound to the victim’s chest, the victim’s heart, the victim’s bloody shirt, and the victim while still alive. The photographs were admitted over Riojas’ objections. The standard of review for the admission of photographic evidence requires the appellate court to first determine whether the photos are relevant. If a party argued that the photographs are overly repetitious, gruesome, or inflammatory, that is to say, prejudicial, the standard of review is abuse of discretion. State v. Sappington, 285 Kan. 176, 194, 169 P.3d 1107 (2007). Photographs depicting the extent, nature, and number of wounds inflicted are generally relevant in murder cases. State v. Adams, 280 Kan. 494, 510, 124 P.3d 19 (2005). Although they may sometimes be gruesome, photographs that aid a pathologist in explaining the cause of death are relevant and admissible. State v. Cavaness, 278 Kan. 469, 477, 101 P.3d 717 (2004); State v. Deal, 271 Kan. 483, 493, 23 P.3d 840 (2001). The State has the burden of proving all the elements of the crime charged, and photographs used to prove the elements of the crime, including the fact and manner of death and the violent nature of the crime, are relevant and admissible even if the cause of death is not contested. Sappington, 285 Kan. at 195; State v. Bell, 273 Kan. 49, 53, 41 P.3d 783 (2002). Photographs used to identify the victim may likewise be relevant and admissible. State v. Crum, 286 Kan. 145, 159, 184 P.3d 222 (2008). This court has held, however, that admitting such photographs is error when they do not help explain or supplement the testimony but instead serve to “inflame the minds of the members of the jury.” State v. Boyd, 216 Kan. 373, 377, 532 P.2d 1064 (1975). The pictures are not extraordinarily gruesome. The wound is visible as a slit; the photographs do not show blood on the victim’s body, and the pictures were introduced for legitimate purposes of identification, evidence of the cause of death, and explanation of the coroner’s testimony. The photographs of the bloody shirt were taken from different angles and showed the estimated entry and exit points of the wounds suffered by the victim. In all, the trial court did not abuse its discretion in weighing the probative value of the 10 photographs and their potential for undue prejudice. The photographs do not appear to distort the factual premises for which they were offered, and they do not appear to have been introduced for the primary purpose of inflaming the passion of the jurors. Finally, they do not appear unduly repetitious or cumulative; they depict the victim and his clothing from different angles and in different aspects. For his final two claims, Riojas raises issues that arise from his sentencing. First, he claims the trial court erred in sentencing him based on a criminal history that was not proved to a jury beyond a reasonable doubt. Riojas was assigned a criminal history score of A based on 3 adult person felonies, 2 adult nonperson felonies, and 13 nonperson misdemeanors. He cites Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), as necessitating submitting the factual basis for his criminal history to the jury. Without such a jury determination, he contends his criminal history score should not have been raised from I to A. Interpretation of a sentencing statute is a question of law, and the appellate court’s standard of review is unlimited. State v. Ruiz-Reyes, 285 Kan. 650, 653, 175 P.3d 849 (2008). The constitutionality of a sentencing statute is a question of law over which this court has unlimited review. State v. Allen, 283 Kan. 372, 374, 153 P.3d 488 (2007). This court has repeatedly addressed this issue, consistently reaching the same result. The issue was initially addressed in State v. Ivory, 273 Kan. 44, 41 P.3d 781(2002), and was decided adversely to the appellant. The holding in Ivory has remained good law in the post-Apprendi era. See James v. United States, 550 U.S. 192, 167 L. Ed. 2d 532, 127 S. Ct. 1586 (2007); State v. Storey, 286 Kan. 7, Syl. ¶ 4, 179 P.3d 1137 (2008); State v. Farmer, 285 Kan. 541, 555, 175 P.3d 221 (2008); State v. Holt, 285 Kan. 760, 777, 175 P.3d 239 (2008); State v. Gaither, 283 Kan. 671, 693, 156 P.3d 602 (2007). Riojas offers us no compelling reason to revisit our current holding on the constitutionality of calculating criminal history scores without submitting them to a jury, and the trial court did not err in applying a criminal history of A in this case. The second sentencing error raised by Riojas is that the trial court erred in assessing a Board of Indigents’ Defense Services application fee. At sentencing, the trial court imposed a $100 application fee against Riojas under K.S.A. 22-4529. Interpretation of a sentencing statute is a question of law, and the appellate court’s standard of review is unlimited. State v. Ruiz-Reyes, 285 Kan. at 653. Riojas contends that the imposition of the application fee without considering ability to pay or the burden that it would impose violates State v. Robinson, 281 Kan. 538, 132 P.3d 934 (2006). In State v. Hawkins, 285 Kan. 842, 176 P.3d 174 (2008), this court distinguished the K.S.A. 22-4529 application fee from the K.S.A. 22-4513 attorney fees reimbursement that Robinson addressed. The time for ordering the payment of the application fee is at the time the defendant applies for appointed counsel, rather than at the time of sentencing. Then, if the ordered fees remain unpaid at sentencing, the court may include the unpaid fee in its sentencing order without making any additional findings. 285 Kan. 842, Syl. ¶¶5, 7. Here, the application fee remained unpaid at sentencing. The fact that the trial court made no additional findings at the time of sentencing was not error and does not require reversal. Affirmed.	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The opinion of the court was delivered by Beier, J.: A jury convicted Kendrall Ransom of two counts of felony murder and two counts of attempted aggravated robbery. On this direct appeal Ransom argues: (1) The district judge erred by denying his motion to suppress his confession; (2) certain testimony violated his confrontation rights under the Sixth Amendment to the United States Constitution and was inadmissible hearsay; (3) he should have received a proximate cause felony-murder jury instruction; (4) he was entitled to a mistrial after a State witness violated a limine order; (5) the State should not have been permitted to amend its information; and (6) the evidence of the felony murder of Christopher Spain Bey was insufficient. Factual and Procedural Background On the evening of March 20, 2006, Ransom; Christopher Gant; Jeremy Miles; and Ransom’s cousin, Karlan, met at Sharondi Washington’s home in Wichita, planning to rob a drug house. Armed with guns previously stored in Washington’s living room closet, Gant drove the men in his gray Ford Contour to a drug house on North Kansas. The group’s plans changed, however, when they observed Donta McDonald walk out of the house toward a truck. The men decided that Gant should run up and rob McDonald. Gant approached McDonald, but Ransom, beKeving that Gant was moving too slow, ran and confronted McDonald with a shotgun, demanding money. Ignoring Ransom’s demands, McDonald stepped into the truck and attempted to scoot across the bench seat. When one of the men screamed that McDonald was trying to get to the passenger door and shoot him, Ransom shot McDonald, who later died. Ransom and the others then ran back to Gant’s car, having obtained no money or drugs. Gant drove to Washington’s home, where he left Ransom, Miles, and Karlan. Undeterred, Ransom, Miles, and Karlan then fixed a flat tire on Washington’s mother’s car and drove to a drug house on North Lorraine. The men approached the house, stating they were there to buy drugs. An individual opened the door but then fell to the ground and slammed the door after seeing Ransom holding a shotgun. There is some dispute over exactly what happened next. The State’s version is that Cordell Redd, Antonio Galbraith, Terral Straughter, and Spain Bey were in the house on North Lorraine when Ransom, Miles, and Karlan approached it. Redd answered the door, saw a long gun, slammed the door, and ran through the house and out the back door. Straughter saw Redd slam the door, heard Redd yell “thumper,” and left the house through a window. Galbraith locked himself in a bathroom and then heard gunshots. Spain Bey was in a bedroom throughout these events. Ransom’s version is that he pushed open the door of the house, saw men coming toward him with pistols, and ran. Ransom also told investigating officers that he heard a window break and gunshots fired from within the residence as he, Miles, and Karlan fled. There is no dispute that officers found Spain Bey dead after the attempted aggravated robbery. There also is no dispute that Ransom, Miles, and Karlan ran through the neighborhood, again without having obtained any money or drugs, and called a friend for a ride to Washington’s home. When they arrived, Washington was watching the 10 p.m. news, which reported that officers were looking for a green Ford Taurus involved in the two shootings that evening. Ransom would later confess that he, Miles, and Karlan laughed and “high-fived” each other after the news report because they believed officers had an inaccurate lead about the car. Two days later, an anonymous female called the Wichita Police Department with information about the homicides. This information led detectives to Washington’s home, where Washington consented to a search. Detectives found two handguns and a shotgun. Washington also informed the detectives that Ransom, Gant, Miles, and Karlan participated in the homicides. Pick-up orders were issued for the men, and officers found Ransom rolled up in a blanket on the floor of a friend’s home. He was transported to the police station at 3:54 a.m. At the station, two detectives began-interviewing Ransom at 5:23 a.m. Ransom was handcuffed when the detectives entered the in terrogation room. After completion of a personal history sheet, the officers read Ransom his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966). He confirmed that he was not under the influence of alcohol, drugs, or prescription medication and that he did not suffer from any impairment as a result of a head injury. Ransom then signed a waiver form stating that he understood his rights. One of the detectives printed Ransom’s name under Ransom’s signature because it was hard to read. A tape recorder was then activated. The first portion of Ransom’s interview ended at 6:43 a.m. The detectives took a 25-minute break and then interviewed Ransom from 7:08 a.m. to 7:33 a.m. The detectives then took a 45-minute break and returned to interview Ransom from 8:18 a.m. to 8:31 a.m. Ransom confessed as described above, and he was charged with two counts of first-degree felony murder and two counts of attempted aggravated robbery. Count 3 of the information filed June 7, 2006, stated: “[A]nd on or about the 20th day of March, 2006, A.D., in the County of Sedgwick, State of Kansas, one JEREMY T. MILES, KENDRALL * RANSOM and KARLAN D. RANSOM did then and there unlawfully, kill a human being, to-wit: Christopher L. Spain Bey, while in the commission of or the attempt to commit an inherently dangerous felony, to-wit: Aggravated Robbery, as defined in K.S.A. 21-3427, inflicting gunshot injuries from which the said Christopher L. Spain Bey did die on the 20th day of March, 2006[.]” Before trial, Ransom argued that his statements to law enforcement were not admissible. At his Jackson v. Denno hearing, see 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964), Ransom testified that at 10 p.m. on the night before he was arrested, he had drunk a pint of Hennessy and had taken two Ecstasy pills. Ransom asserted that Ecstasy makes him delusional and usually lasts 12 hours. Ransom also claimed that, although he remembered being handcuffed and shackled, he did not'remember signing the waiver of his Miranda rights or the 3 hours of interviews by the detectives. Ransom also asserted that the signature on the waiver form did not look like his. One of the interviewing detectives also testified at the hearing, explaining that he did not coerce Ransom into confessing, that he did not threaten Ransom, that he did not deprive Ransom of food or water, and that he did not detect the smell of alcohol or marijuana on Ransom. The detective further stated that Ransom never fell asleep and never asked for an attorney or requested to stop the interview. Neither detective re-Mirandized Ransom after the interview breaks. The district judge questioned Ransom’s credibility and determined that the interrogation involved one interview, not three, and that detectives did not need to re-Mirandize Ransom after the breaks. The district judge also ruled that Ransom’s statements were knowingly and voluntarily made and thus admissible at trial. Ransom also filed a pretrial motion in limine to prevent introduction of evidence about his involvement with gangs, on the grounds that such evidence was immaterial, irrelevant, and inadmissible. The State agreed that it would not offer any evidence of Ransom’s gang affüiation, and the district judge sustained the motion. At trial, however, the lead detective on the North Lorraine homicide, Heather Bachman, referenced gangs in the following series of direct examination questions and answers: “Q: [Prosecutor] Besides just doing the pick-up, did you make additional efforts to try to find those four men? “A: [Bachman] Yes. “Q: And what were they? “A: The gang officers-- “[Defense counsel]: Objection, Your Honor.” As a result of this testimony, Ransom moved for mistrial. The district judge overruled the motion, stating that the State did not design its question to elicit a response about gangs. The district judge also instructed the jury “to ignore the . . . answer that was given by [Bachman] stating that the gang unit was one of the units that was asked to investigate. Neither the State nor the witness is suggesting, insinuating or alleging that the defendant is affiliated with a gang.” Gary L. Miller, chief criminalistics and firearm toolmark examiner for the Sedgwick County Regional Forensic Science Center, testified that only State’s Exhibit 7 F, a shotgun recovered from Washington’s home, could have fired the 12-gauge shotgun shell found next to McDonald. Miller also testified that none of the firearms recovered from Washington’s home could have been used to kill Spain Bey. Washington testified and identified State’s Exhibit 7 F as the shotgun Ransom took with him the evening of the crimes. Washington also corroborated Ransom’s confession about the men’s reaction to the news report about the green car, testifying that one of the men stated, “[T]hey [have] the wrong lead.” Washington further testified that, during the news, one of the men said, “[H]e must have shot his homie.” But she could not confirm that this statement concerned the North Lorraine homicide. Washington also said that Ransom had stated he shot “them” to get money, and one of the men had said Gant failed to run up to McDonald as planned. At the close of the evidence, the State moved to amend Count 3 of the information to state: “[A]nd on or about the 20th day of March, 2006, A.D., in the County of Sedgwick, State of Kansas, one KENDRALL * RANSOM did then and there unlawfully, kill a human being, to-wit: Christopher L. Spain Bey, while in the commission of or the attempt to commit or flight from an attempt to commit an inherently dangerous felony, to wit: Aggravated Robbery, as defined in K.S.A. 21-3427 by inflicting gunshot injuries from which the said Christopher L. Spain Bey did die on the 20th day of March, 2006.” (Emphasis added.) The district judge permitted the amendment, stating: “[A]s a matter of law the State can and has the legal ability to amend the complaint/ information at the stage we’re at now. In addition, the amendment is part of the same statute. . . . [fit’s part of the same subsection to the statute. And so it is not a separate and distinct charge. It is essentially the same charge. “In addition, the Court finds that it is . . . not a surprise given the facts that all parties knew at the time the complaint/information was filed. . . . “In addition, given the facts and circumstances of the case, given the evidence that I’ve heard, . . . the Court finds that the defendant would not be unduly prejudiced by an . . . amendment at this time.” Ransom requested a jury instruction on the rule of proximate cause in felony murders, which read: “PROXIMATE CAUSE UNDER THE FELONY MURDER RULE “ ‘Time, distance and the causal relationship between the underlying felony and the killing are factors to be considered in determining whether the killing is a part of the felony.’ [Citations omitted.] The reason for the felony murder doctrine is to reheve the State of the burden of proving premeditation where the victim’s death is caused by the felon or an agent of the felon while engaged in a felony. For the Defendant to be found guilty of felony murder, the jury must find that the Defendant, or an agent of the Defendant in the commission of the felony of Attempted Aggravated Robbery, killed the victim. [Citations omitted.]” The district judge refused the request on the ground that the instruction misstated the law. Instead, Ransom’s jury received the following instruction based on PIK Crim. 3d 56.02, which read: “In Count 3, the defendant is charged with the crime of murder in the first degree. The defendant pleads not guilty. “To establish this charge, each of the following claims must be proved: “1. That the defendant or another killed Christopher Spain Hey; “2. That such killing was done while attempting to commit aggravated robbery or in flight from attempting to commit aggravated robbery; and “3. That this act occurred on or about the 20th day of March, 2006, in Sedgwick County, Kansas.” Motion to Suppress Regarding his motion to suppress, Ransom first argues that his confession was not the product of his free and independent will because he was an 18-year-old high school student high on Ecstasy, who had consumed a large amount of alcohol, and the police chained him to the floor and a desk in a small interrogation room, where he had no outside contact for 2 hours and 10 minutes. The State argues there was substantial competent evidence to support the district judge’s factual findings and the ruling that the confession was voluntary. Our standard of review is well settled: “When reviewing a district court ruling on a motion to suppress a confession, an appellate court reviews the factual underpinnings of the decision under a substantial competent evidence standard. The ultimate legal conclusion drawn from those facts is reviewed de novo. The appellate court does not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence.” State v. Gant, 288 Kan. 76, Syl. ¶ 1, 201 P.3d 673 (2009). Faced with a motion to suppress, the prosecution bears the burden of proving by a preponderance of the evidence that a confession was voluntary. The essential inquiry is whether the statement was the product of the defendant’s free and independent will. The court looks at the totality of the circumstances surrounding the confession and determines voluntariness by considering the following nonexclusive factors: “[T]he defendant’s mental condition; the manner and duration of the interrogation; the ability of the . defendant to communicate with the outside world; the defendant’s age, intellect, and background; the fairness of the officers in conducting the interrogation; arid the defendant’s proficiency with the English language.” State v. Cofield, 288 Kan. 367, Syl. ¶¶ 2, 3, 203 P.3d 1261 (2009). Substantial competent evidence supports the district judge’s factual findings in this case. First, there was no evidence other than Ransom’s testimony, which the district court judge regarded as incredible, tending to show that Ransom was impaired by drugs or alcohol or both at the time he confessed. Indeed, Ransom denied being under the influence at the start of the interview. Second, the manner and duration of the interrogation was reasonable. Ransom’s time in the interrogation room lasted only 3.5 hours with substantial breaks. There were no signs of physical or psychological coercion, other than the inherent fact of confinement and the use of temporary restraints. Compare State v. Brown, 285 Kan. 261, 271-78, 173 P.3d 612 (2007) (defendant’s confession voluntary even though officers handcuffed defendant to table in small interrogation room for 12 hours). Third, nothing in the record establishes that Ransom’s age, intellect, or background negatively affected his ability to interact with or answer or refuse to answer questions from the police. The record demonstrates Ransom understood the detectives’ questions and answered them appropriately. The totality of these circumstances amply supports the district judge’s legal conclusion that Ransom’s confession was voluntary. Ransom next argues that statements he made to officers during the second and third portions of his interview should have been suppressed because the detectives failed to re-Mirandize him. The State contends that re-Mirandizing Ransom was unnecessary. The question of whether a suspect should be xe-Mirandized after a waiver is one of law that this court answers by considering the totality of the circumstances. One factor this court considers is the time between the waiver and the statements sought to be suppressed. State v. Nguyen, 281 Kan. 702, 723, 133 P.3d 1259 (2006). Our court’s decision in State v. Mattox, 280 Kan. 473, 124 P.3d 6 (2005), is instructive on this issue. In that case, at 4:30 p.m. on October 16, 2001, Lawrence officers read defendant Michael Mattox his Miranda rights. When Mattox immediately requested an attorney, officers placed him in jail and began the booking process. During booking, at 5:53 p.m., Mattox repeatedly interrupted a corrections officer, stating that he had something he needed to discuss. The corrections officer insisted Mattox wait for an investigating officer. At 7:30 p.m., after Mattox had been processed, Mattox again approached the corrections officer, stating that he had information on certain murders. The corrections officer took the information, and Mattox wrote a statement describing two homicides. Lawrence officers contacted the Topeka Police Department, because the homicides had been committed in Topeka. Detectives from the TPD arrived at the Lawrence jail at 12:55 a.m. and began questioning Mattox. The detectives did not re-Mirandize Mattox. Analyzing federal and Kansas case law, our court concluded that Mattox’s statements were voluntary: “We begin our analysis by observing that one court has stated: ‘[T]here is no requirement that an accused be continually reminded of his rights once he has intelligently waived them. [Citation omitted.]’ United States v. Anthony, 474 F.2d 770, 773 (5th Cir. 1973). The appellate courts of New York have refined the Anthony court’s general statement by including a reasonable time factor: When a person in continuous police custody receives Miranda warnings and voluntarily waives his rights, it is not necessary to repeat the warnings before later questioning within a reasonable time thereafter. [Citations omitted.]’ People v. Gonzalez, 5 App. Div. 3d 696, 697, 774 N.Y.S.2d 739 (2004) (11 hours after first questioning defendant was reasonable); [citation omitted]. “See also United States v. Andaverde, 64 F.3d 1305, 1313 (9th Cir. 1995) (1-day interval between waiver of Miranda rights and defendant’s statement to law enforcement was not unreasonable); Ballard v. Johnson, 821 F.2d 568, 571-72 (11th Cir. 1987) (3- to 4-hour gap between waiver of Miranda rights and third conversation in another city was not unreasonable); Evans v. Cotter, 790 F.2d 1232 (5th Cir. 1986) (several-hours’ gap between waiver of Miranda rights and confession not unreasonable); Stumes v. Solem, 752 F.2d 317, 320 (8th Cir. 1985) (5-hour interval between waiver of Miranda rights and defendant’s statement to law enforcement not unreasonable). “On this issue of repeated Miranda warnings, this court has generally held: ‘[O]nce the mandate of Miranda is complied with at the threshold of the interrogation by law enforcement officers, the warnings need not be repeated at the beginning of each successive interview. To adopt an automatic second warning system would be to add a perfunctory ritual to police procedures rather than provide the meaningful set of procedural safeguards envisioned by Miranda. [Citations omitted.]’ State v. Boyle, 207 Kan. 833, 841, 486 P.2d 849 (1971). See State v. Pyle, 216 Kan. 423, Syl. ¶ 9, 532 P.2d 1309 (1975) (‘Once a suspect is fully advised of his rights and fully understands them, it is not necessary to give repeated Miranda warnings each time he is interviewed.’). “. . . [Thus] under these circumstances, a second Miranda warning when Mattox arrived at the interview room was not required.” Mattox, 280 Kan. at 487-88, 91. Following Mattox’s holding and rationale, and under the totality of the circumstances of this case, we have no trouble concluding as a matter of law that it was unnecessary to re-Mirandize Ransom at the beginning of each portion of his interview. The first break of 25 minutes and the second break of 45 minutes did not put the later portions of the interview outside a reasonable time. Sixth Amendment Confrontation and Hearsay Ransom argues that the district court erred by permitting Washington to testify about the reaction of Ransom, Miles, and Karlan on the night of the murders to the newscast about a green car, including the statement “[T]hey [have] the wrong lead.” In his view, the admission of Washington s testimony violated his confrontation rights guaranteed by the Sixth Amendment to the United States Constitution and failed to meet the requirements of a statutory hearsay exception. Ransom does not challenge the admission of the statement “He must have shot his homie,” which was also admitted through Washington’s testimony. The Sixth Amendment Confrontation Clause guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” The question of whether confrontation rights have been violated is one of law over which this court exercises de novo review. State v. Hughes, 286 Kan. 1010, 1014, 191 P.3d 268 (2008). Ransom’s first argument is that Washington’s statement was not admissible because one or more of his codefendants made the statements and he could not confront the co-defendant or co-defendants at trial. This argument is based on United States v. Bruton, 391 U.S. 123, 137, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968), which held that a defendant’s right to confront the witnesses is violated if a codefendant’s confession is admitted into evidence in a joint trial. See State v. Swafford, 257 Kan. 1023, Syl. ¶ 4, 897 P.2d 1027 (1995), modified 257 Kan. 1099, Syl. ¶ 1, 973 P.2d 196 (1996). Neither Bruton nor any Kansas case following it can help Ransom. Bruton and like cases apply only in situations in which a codefendant’s confession is admitted during a joint trial and the codefendant does not testify. Bruton, 391 U.S. at 137; see Swafford, 257 Kan. 1099, Syl. ¶ ¶ 1-4. Ransom was the sole defendant in his trial. Ransom’s second argument focuses on Crawford v. Washington, 541 U.S. 36, 68, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), which held that testimonial hearsay may be admitted only if the declarant is unavailable and the defendant has had an earlier opportunity to cross-examine the declarant. To define “testimonial,” Ransom relies upon United States v. Summers, 414 F.3d 1287 (10th Cir. 2005). In Summers, the Tenth Circuit Court of Appeals held that “a statement is testimonial if a reasonable person in the position of the declarant would objectively foresee that his statement might be used in the investigation or prosecution of a crime.” 414 F.3d at 1302. Ransom is correct in his description of Crawford's holding, 541 U.S. at 68, and in his assertion that courts have followed and further analyzed Crawford’s consideration of when statements are testimonial. See Davis v. Washington, 547 U.S. 813, 821-22, 165 L. Ed. 2d 224, 126 S. Ct. 2266 (2006); State v. Davis, 283 Kan. 569, 574-76, 158 P.3d 317 (2007). But this court has declined to follow the Tenth Circuit’s decision in Summers, rejecting its formula in Brown, 285 Kan. at 293-94. Instead, we have established several factors to be considered in determining when evidence is testimonial: “(1) Would an objective witness reasonably believe such a statement would later be available for use in the prosecution of a crime? “(2) Was the statement made to a law enforcement officer or to another government official? “(3) Was proof of facts potentially relevant to a later prosecution of a crime the primary purpose of the interview when viewed from an objective totality of the - circumstances, including circumstances of whether (a) the declarant was speaking about events as they were actually happening, instead of describing past events; (b) the statement was made while the declarant was in immediate danger, i.e., during an ongoing emergency; (c) the statement was made in order to resolve an emergency or simply to learn what had happened in the past; and (d) the interview was part of a governmental investigation?; and “(4) Was the level of formality of the statement sufficient to make it inherently testimonial; e.g., was the statement made in response to questions, was the statement recorded, was the declarant removed from third parties, or was the interview conducted in a formal setting such as in a governmental building?” Brown, 285 Kan. at 291. The irony here is that the only Brown factor with much analytical bite in this case is the first, which is the most similar to the one-dimensional definition from Summers, 414 F.3d at 1302. In any event, the facts surrounding the making of the unidentified declarant’s statement at issue here — “[T]hey [have] the wrong lead” — and the accompanying behavior of laughter and “high-fives” of the persons present persuade us that an objective witness would not reasonably believe that the statement would later be available for use in the prosecution of the crimes. The declarant’s statement and the relieved and celebratory laughter and hand slaps were spontaneous expressions among friends watching television. No interview, by law enforcement or otherwise, was taking place; thus no characteristics of an interview are subject to evaluation. The declarant’s statement was not testimonial, and admission of Washington’s testimony about the statement without Ransom being afforded an earlier opportunity to cross-examine the declarant did not violate Ransom’s Sixth Amendment confrontation rights. Having disposed of Ransom’s Crawford and Summers argument, we move to the hearsay analysis this issue also demands. Ransom argues that Washington’s testimony was hearsay that could not qualify for the adoptive admissions exception of K.S.A. 60-460(h)(2). He asserts that the State failed to prove he “manifested by words or other conduct” his adoption of the statement; at most he claims the State proved that Ransom was silent. In response, the State contends that the district judge did not abuse his discretion in applying K.S.A. 60-460(h)(2). Its fallback position is that any error was harmless, when measured against the damning overload of Ransom’s in-custody confession, his additional incriminating statements to or in the presence of Washington, and the corroborating physical evidence.' “Hearsay evidence is not admissible unless it falls within an exception recognized in [K.S.A. 60-460].” State v. Kesselring, 279 Kan. 671, 690, 112 P.3d 175 (2005). K.S.A. 60-460(h)(2) provides that an authorized or adoptive admission is admissible despite its categorization as hearsay if the party against whom it is sought to be admitted had knowledge of the content of the statement and has, “by words or other conduct, manifested the party’s adoption or belief in its truth.” Ransom asserts that the State proved only that he stood silent while another of the men with whom he had spent die evening spoke in reaction to the news broadcast about die police investigation of the crimes. Assuming his assertion to be accurate, the controlling facts for a K.S.A. 60-460(h)(2) adoptive admissions analysis are nevertheless clear. In such a situation, it is appropriate for this court to review the district judge’s decision on admissibility de novo rather than under an abuse of discretion standard. See State v. Sappington, 285 Kan. 158, 171, 169 P.3d 1096 (2007) (quoting State v. Gunby, 282 Kan. 39, 47, 144 P.3d 647 [2006] [evidentiary rules governing admission, exclusion may be applied as matter of law, in exercise of discretion; when adequacy of legal basis of district judge’s decision questioned, review de novo]). This court has long held that prejudicial statements made in the defendant’s presence and tolerated without resentment, explanation, or denial may be admissible as adoptive admissions under K.S.A. 60-460(h)(2). See State v. Betts, 272 Kan. 369, 381-82, 33 P.3d 575 (2001), overruled on other grounds Davis, 283 Kan. at 575; see also State v. Buckner, 223 Kan. 138, 145, 574 P.2d 918 (1977) (evidence defendant did nothing to refute, deny incriminating statements made by accomplice admissible as adoptive admissions under K.S.A. 60-460[h][2]). In order for silence to meet the statutory standard, the evidence must show: “(1) [T]he statement was extrajudicial, (2) it was incriminatory or accusative in import, (3) it was one to which an innocent person would in the situation and surrounding circumstances naturally respond, (4) it was uttered in the presence and hearing of the accused, (5) the accused was capable of understanding the incriminatory meaning of the statements, (6) the accused had sufficient knowledge of the facts embraced in the statement to reply thereto, and (7) the accused was at liberty to deny it or to reply thereto.” Betts, 272 Kan. at 382. Ransom argues that the second, third, fifth, and sixth factors were not met because the statement Washington repeated was neither incriminatory nor accusatory; an innocent person would not naturally respond to the statement; there was no evidence indicating he understood the incriminatory meaning of the statement; and he did not have sufficient knowledge of the facts to reply. We disagree. Even if Ransom did not speak, he was not unresponsive. The evidence, including his own confession to police, indicated that Ransom participated in the contemporaneous laughter and round of “high-fives.” This participation constituted an unambiguous nonverbal expression of knowledge about the shootings, as well as an understanding of the significance of the news report and any accuracy or inaccuracy of police leads. Under these controlling facts, there was no error in admitting Washington s testimony about the “[T]hey [have] the wrong lead” statement into evidence under the hearsay exception for adoptive admissions of K.S.A. 60-460(h)(2). Proximate Cause Jury Instruction Ransom contends that the PIK Crim. 3d 56.02 instruction given by the district court failed to explain the causation required for felony murder and that the alternate instruction proposed by the defense should have been given instead. Ransom further argues that this error denied him an opportunity to present his defense and thus his right to a fair trial. In response, the State contends that our court in State v. Jackson, 280 Kan. 541, 124 P.3d 460 (2005), and State v. Beach, 275 Kan. 603, 67 P.3d 121 (2003), considered and rejected Ransom’s position on PIK Crim. 3d 56.02. Moreover, the State asserts, Ransom’s requested instruction misstated the law, and the district judge’s approach provided Ransom the opportunity to present his defense. “When the trial court refuses to give a requested instruction, an appellate court must review the evidence in a light most favorable to the party requesting the instruction. A defendant is entitled to an instruction on his or her theory of the case . . . . [Nevertheless,] [i]f the instructions as a whole properly and fairly state the law as applied to the facts of the case, and the jury could not reasonably be mislead by them, the instructions are not reversible error even if they are in some way erroneous. [Citation omitted.]” Jackson, 280 Kan. at 549-50. In addition, “[t]he use of PIK instructions, while not mandatory, is strongly recommended. The pattern instructions have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to juiy instructions.” State v. Anthony, 282 Kan. 201, 216, 145 P.3d 1 (2006). The State is correct that we have previously approved of the causation aspect of PIK Crim. 3d 56.02. For example, in Jackson we held: “ ‘ “PIK Crim. 3d 56.02 sufficiently incorporates the causation required under the law. The instructions require not only that the death occur during the commission of the felony but that the killing actually be perpetrated by the defendant or another in the commission of the felony.” ’ ” 280 Kan. at 550 (quoting Beach, 275 Kan. at 625; State v. LaMae, 268 Kan. 544, 555, 998 P.2d 106 [2000]). The State is also correct that Ransom’s requested instruction misstated the law. Our court has long held that agency is not a required element of proof under the felony-murder doctrine. Rather, the State must prove only that the defendant committed a felony inherently dangerous to human life, which directly resulted in the homicide. State v. Hoffman, 288 Kan. 100, Syl. ¶ 5, 200 P.3d 1254 (2009). Accordingly, a defendant maybe convicted of felony murder even if the victim was not killed by the defendant or an agent of the defendant, as long as the homicide occurred as a direct result of an inherently dangerous felony. See State v. Stout, 37 Kan. App. 2d 510, 519, 154 P.3d 1176, rev. denied 284 Kan. 950 (2007) (felony-murder doctrine applies if victim, reasonably defending himself, accidentally kills himself). Given all of the above, we see no error in the district judge’s decision to give the jury PIK Crim. 3d 56.02 rather than Ransom’s proposed proximate cause instruction. Moreover,, we observe that, on ibis issue, Ransom makes no other argument in support of his position that he was denied the opportunity to present his defense and receive a fair trial. In fact, the record on appeal demonstrates that PIK Crim. 3d 56.02 did not prevent Ransom’s counsel from arguing lack of causation during closing arguments. Ransom is not entitled to reversal on this basis. Motion for Mistrial Ransom next alleges reversible error in the district judge’s denial of his motion for a mistrial under K.S.A. 22-3423(1)(b) or (c) because of Bachman’s mention of “the gang officers.” Ransom argues that our court’s standard of review on what he views as a violation of the district judge’s limine order must be de novo. In response, the State asserts that the district judge did not err by denying Ransom’s motion for a mistrial because the judge appropriately admonished the juiy. The State also asserts that this court reviews rulings on motions for mistrial under an abuse of discretion standard. K.S.A. 22-3423 provides in pertinent part: “(1) The trial court may terminate the trial and order a mistrial at any time that [it] finds termination is necessary because: “(b) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law and the defendant requests or consents to the declaration of a mistrial; or “(c) Prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution.” Our court has long held that an appellate court reviews a district court’s decision denying a motion for mistrial under an abuse of discretion standard. See State v. Albright, 283 Kan. 418, 425, 153 P.3d 497 (2007). This standard does not change even if legal error prompted consideration of a mistrial. “A court abuses its discretion when no reasonable person would take the same view. [Citation omitted.] A defendant must show substantial prejudice before this court will find the district court abused its discretion in denying a motion for mistrial. [Citations omitted.]” 283 Kan. at 425-26. There is no dispute that gang evidence was to be excluded at Ransom’s trial, but he can demonstrate no substantial prejudice from Bachman’s brief reference to “the gang officers.” Even if witness preparation and the detective’s experience — along with the fact that this detective sat at counsel table during trial and had been present when the admonition was given to other witnesses— should have prevented the reference, it was innocuous. We are confident that it did not create an unduly prejudicial impression that Ransom was involved in a gang or gang activity. Indeed, the district judge’s admonition was emphatic in dispelling any weak association that could have arisen in the minds of jurors. As it happened, Ransom may have received a great deal more in the way of a court endorsement because of the detective’s mistake than most criminal defendants have a right to expect. Motion to Amend Information Ransom next challenges the district judge’s decision to permit the State to amend its information after both parties rested but before jury deliberations began. Again, Ransom asserts this ruling denied his opportunity to present his defense and obtain a fair trial. The State responds that the amended information did not substantially prejudice Ransom and did not charge Ransom with a new or additional crime. K.S.A. 22-3201(e) states: “The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.” (Emphasis added.) In other words, we, like the district court, must ask two questions to determine whether a complaint or information can be amended: (1) Did the amendment charge an additional or different crime? and (2) Were the substantial rights of the defendant prejudiced by the amendment? See State v. Matson, 260 Kan. 366, 370, 921 P.2d 790 (1996). Here, the prosecution amended Count 3 of the information to cover the possibility that the felony murder of Spain Bey occurred during Ransom’s flight from, rather than only his commission of, the attempt to commit aggravated robbery. The amended language did not charge an additional or different crime; felony murder was still the only crime charged in that count, and it can be committed if a death results from a defendant’s flight from an inherently dangerous felony such as attempted aggravated robbery. See K.S.A. 21-3401(b). Moreover, Ransom’s substantial rights were not prejudiced because he and his counsel had always been aware that evidence of Ransom’s flight from an inherently dangerous felony was part of the State’s case, regardless of whether Ransom’s or the State’s version of the North Lorraine homicide was accepted by the jury. This issue has no merit. Sufficiency of Evidence on Felony Murder Charged in Count 3 Finally, Ransom argues that there was insufficient evidence to convict him of the felony murder of Spain Bey charged in Count 3 because the State failed to prove Spain Bey died during the commission of an attempted aggravated robbery. “ ‘When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. [Citation omitted.]’ ” Hoffman, 288 Kan. at 106-07. A conviction of even the gravest offense may be sustained by circumstantial evidence. State v. Garcia, 285 Kan. 1, 22, 169 P.3d 1069 (2007). As noted above, to support a felony-murder conviction, this court requires proof that a defendant committed a felony inherently dangerous to human life that directly resulted in a homicide. Hoffman, 288 Kan. at 107. A defendant may be convicted of felony murder even if the victim was not killed by the defendant or an agent of the defendant, as long as the homicide occurred as a direct result of an inherently dangerous felony. Stout, 37 Kan. App. 2d at 519. Bachman testified that Spain Bey was alive in the North Lorraine house before the second attempted aggravated robbery. Ransom, with his two accomplices, then attempted to rob the house, heard gun shots, and ran away. Officers discovered Spain Bey dead when the smoke cleared. Regardless of which version of events the jury accepted, this was sufficient circumstantial evidence to support Ransom’s conviction for the felony murder of Spain Bey as a result of Ransom’s commission of or flight from the second attempted aggravated robbery. The State did not have to prove that Ransom or one of his accomplices fired the shots that killed Spain Bey. Affirmed. McFarland, C.J., not participating. Standridge, J., assigned.	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The opinion of the court was delivered by Luckert, J.: This case involves questions concerning the availability of a constructive trust remedy when an estate attempts to bring into the estate some assets that the decedent wrongfully transferred. In addition, issues are raised regarding the applicability of the nonclaim statute and various other statutes of limitation to claims brought by the estate against those who possess the assets. We hold a constructive trust was appropriately imposed by the district court. Uncontroverted facts establish that the decedent executed an antenuptial agreement in which she promised to devise a specified portion of her entire estate to her husband’s sons from a prior marriage. Decedent violated the duty of good faith implied in that agreement by placing almost all of her assets in irrevocable trusts that did not benefit her husband’s sons. We further hold that tire nonclaim statute does not apply to the Estate’s action to marshal assets and the Estate’s action did not accrue until the decedent’s death, at the earliest. Background In April 1967, Clark Draper and Ethel Catlin executed an antenuptial agreement in contemplation of their marriage. Although Ethel had no children, Clark had three sons from a previous marriage. The antenuptial agreement stated that both Clark and Ethel had “substantial property and property rights” and provided that each would retain his or her separate assets and that neither would dispose of property without the consent of the other. Income from the assets would be shared in “a common fund for their mutual support and living expenses.” The parties acknowledged that each of them had prepared wills to be executed after the marriage and agreed they would not revise or revoke the wills “during the lifetime of both the parties hereto without both parties hereto consenting to such change.” Ethel agreed that she would consent to Clark’s will and, if she survived Clark, she would maintain a valid will devising to Clark’s sons “not less than one-fourth to each of them of her entire estate remaining after the payment of debts, administrative expense, taxes or other obligations.” Clark executed a will leaving a substantial portion of his estate to Ethel should she survive him. Clark died testate in January 1977, and Ethel (Ethel F. Draper) received her share of his estate as Clark’s surviving spouse. In September 1977, before Clark’s estate was settled, Ethel created and funded an irrevocable trust whose successor trustee is UMB Bank, N.A. (UMB). This trust allowed Ethel to receive the income and corpus during her lifetime. Upon her death, the trust income and corpus were to be distributed to, among others: First Christian Church of Olathe, the Kansas City Chapter of the American Cancer Society (American Cancer Society), Olathe Medical Center, Mary Helen Moeller, and Janis M. Waleski Murphy. Clark’s sons were not mentioned. In April 1982, Ethel executed a will which divided her estate equally among Clark’s three sons. That same day, Ethel created another irrevocable trust whose successor trustee is Bank of America. As with the other trust, Ethel was to receive income from the trust and could receive the corpus. The remainder beneficiaries of this trust were the same as those listed in the 1977 UMB trust. When Ethel died in October 2002, she left a probate estate' of less than $10,000, while the total assets in the two irrevocable trusts exceeded $1 million. Ethel’s will was admitted to probate in January 2003. In December 2003, Clark’s son Gerald T. Draper, executor of the Estate of Ethel F. Draper, deceased (Estate), filed this action on behalf of the Estate against Bank of America and UMB. In the petition and a subsequently filed first-amended petition, the Estate alleged Ethel “was beyond her authority and capacity under the constraints of the antenuptial agreement” when she transferred most of her assets into the two irrevocable trusts. As a result, the transfers were void and the assets “remain assets of her probate estate.” More specifically, the Estate alleged that Ethel committed intentional fraud and “fraud implied in the law” and that she breached the antenuptial contract and her fiduciary duties. All of these claims are based on the obligations imposed on Ethel in the antenuptial agreement, which according to the Estate made Ethel a “continuous trustee of all of her assets” and created a special, fiduciary duty to act in good faith to preserve the assets for disposition by will. The requested remedy was primarily the imposition of a constructive trust on three-quarters of the trust assets and to place diese assets in die Estate. Later, the petition was amended to add the trust beneficiaries as defendants. In its answer to the petition, the American Cancer Society claimed that the Estate’s action was barred by the statutes of limitation and repose in K.S.A. 60-511, K.S.A. 60-513, and K.S.A. 60-515. It also claimed that the limitations period under K.S.A. 59-2239 for filing estate claims had expired. The American Cancer Society filed a motion to dismiss based on these statutes, and the other named defendants joined in this motion. The Estate’s response to the motion to dismiss was that none of the statutes cited could apply to the Estate, which exists as a separate entity from Ethel herself. The district court agreed with the Estate and denied the defendants’ motion to dismiss, stating that this was “an action on behalf of the estate to marshal the assets, period.” Following this ruling, the Estate reached a settlement with Olathe Medical Center and American Cancer Society. Next, First Christian, Waleski Murphy, and Moeller filed a motion for summary judgment, and the Estate did as well. In its memorandum decision, the district court concluded that the antenuptial agreement contained an implied duty which prevented Ethel from divesting Clark’s sons of their share of the trust assets. In the district court’s view, the antenuptial agreement had created a life estate for Ethel in the marital property. The district court also found that Ethel’s transfers to the irrevocable trusts were void because the transfers exceeded her authority under the agreement. The court granted the Estate’s summary judgment motion and ordered that the property be placed in a constructive trust for Clark’s sons. The defendants’ motions for summary judgment were denied. First Christian, Waleski Murphy, and Moeller appealed the district court’s decision. UMB and Bank of America were also parties to the appeal because of their roles as trustees. First Christian contended on appeal that (1) the district court erred in ordering a constructive trust in favor of the Estate on the assets of the irrevocable trusts because it did not make a finding of fraud; (2) K.S.A. 60-515 barred the action since it was commenced more than 1 year after Ethel’s death; and (3) Clark’s sons knew of Ethel’s trusts as early as 1985, which barred the Estate’s claims pursuant to the statute of repose. Waleski Murphy and Moeller argued that the nonclaim statute and various statutes of limitation barred the action, which they contended accrued in 1977 when Ethel first transferred assets into an irrevocable trust. In response, the Estate raised claims involving the interpretation of the antenuptial agreement and Ethel’s action. In a split decision, the Court of Appeals reversed the district court. Estate of Draper v. Bank of America, 38 Kan. App. 2d 183, 164 P.3d 827 (2007). The Court of Appeals concluded that the antenuptial agreement did not restrict Ethel with respect to gifting or inter vivos transfers of her property; further, no language in the agreement restricted Ethel from creating irrevocable trusts. Consequently, the panel determined that Ethel complied with the clear language of the antenuptial agreement and did not breach the contract. 38 Kan. App. 2d at 189. Regarding K.S.A. 59-2239, the nonclaim statute, the majority stated that none of Clark’s sons were disputing what was contained in the Estate. The entire purpose of this lawsuit, the majority concluded, was to collect assets which were outside of the Estate — in Ethel’s irrevocable trusts. The majority held that compliance with K.S.A. 59-2239 is “wholly unrelated to this action” and, therefore, any action against the Estate would have been futile. 38 Kan. App. 2d at 190. Judge Green wrote a concurring opinion in which he agreed with most of the majority’s discussion, but he disagreed with the majority’s holding regarding K.S.A. 59-2239. 38 Kan. App. 2d at 191-92. Judge Green pointed out that the remedies sought by the Estate were based on Ethel’s alleged breach of the antenuptial agreement. Further, it was undisputed that Clark’s sons were the intended third-party beneficiaries of that agreement. Thus, in Judge Green’s view, Clark’s sons had a claim against Ethel to the extent she failed to fulfill her obligations under the contract. As such, because Ethel was deceased and could no longer be sued, Clark’s sons’ claims based upon Ethel’s alleged breach of the antenuptial agreement should have been brought against Ethel’s estate. Therefore, Judge Green would have found the case was reversible based on the “estate claims” being time-barred pursuant to K.S.A. 59-2239. 38 Kan. App. 2d at 192 (Green, J., concurring). Because this.case potentially conflicts with another Court of Appeals case, Nelson v. Nelson, 38 Kan. App. 2d 64, 162 P.2d 43 (2007), in which similar issues arose involving the Kansas nonclaim statute, we granted the petitions for review filed in both cases. See K.S.A. 20-3018(b); K.S.A. 60-2101(b). Standards of Review Our standard of review on appeal from summary judgment is well settled: “Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving parly is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.” Miller v. Westport Ins. Corp., 288 Kan. 27, Syl. ¶ 1, 200 P.3d 419 (2009). To the extent there is no factual dispute, appellate review of an order granting summary judgment is unlimited. Polson v. Farmers Ins. Co., 288 Kan. 165, Syl. ¶ 1, 200 P.3d 1266 (2009). In addition, resolution of the Estate’s contentions will involve the examination and construction of the Kansas nonclaim statute, K.S.A. 59-2239, and appellate courts exercise unlimited review when construing statutes. Polson, 288 Kan. at 32. Similarly, a de novo standard of review applies to the construction of written instruments, which we are called upon to do in this case as we consider the effects of the antenuptial agreement. Miller, 288 Kan. at 168. Under this latter rule, regardless of the construction given a written contract by the district court, an appellate court may construe a written contract and determine its legal effect. Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 763, 27 P.3d 1 (2001). Constructive Trust The Estate contends that the Court of Appeals erred in reversing the district court’s decision to impose a constructive trust on the irrevocable trust assets. It specifically takes issue with the panel’s determination that the Estate “never claimed there was a confidential relationship” and that Ethel did not breach the antenuptial agreement by making the property transfers to the trusts. 38 Kan. App. 2d at 188. This issue arises because the Court of Appeals concluded that actual or constructive fraud had to be proved in order for a constructive trust to arise. 38 Kan. App. 2d at 187-88. As discussed in our decision in Nelson v. Nelson, 288 Kan. 570, 590, 205 P.3d 715 (2009), actual or constructive fraud does not have to be established before the constructive trust remedy can be ordered. Rather, a constructive trust is an appropriate remedy “[w]here a person holding title to property is subject to an equitable duty to convey it to another on the ground that he would be unjusdy enriched if he were permitted to retain it.” Restatement of Restitution: Quasi Contracts and Constructive Trusts § 160 (1936) (Restatement of Restitution). In In re Estate of Sander, 283 Kan. 694, 719, 156 P.3d 1204 (2007), we explained that unjust enrichment arises when (1) a benefit has been conferred upon the defendant, (2) the defendant retains the benefit, and (3) under the circumstances, the defendant’s retention of the benefit is unjust. Where, as here, a person who holds property that is subject to a beneficial interest transfers the property, an action may be brought against the third party for the return of the property. The Restatement explains: “(1) Where a person holding property in which another has a beneficial interest transfers title to the property in violation of his duty to the other, the transferee holds the property subject to the interest of the other, unless he is a bona fide purchaser. “(2) Where the owner of property transfers it in fraud of third persons, the transferee holds the property subject to their claims, unless he is a bona fide purchaser.” Restatement of Restitution § 168. Consistent with this provision, the Estate claims (1) that Ethel had a beneficial interest — the equivalent of a life estate — and transferred the property in violation of a duty created by the antenuptial agreement, and (2) that Ethel transferred the assets in fraud. More specifically, in alleging the violation of a duty, the Estate alleges Ethel committed actual and constructive fraud, breached the antenuptial contract, and breached her fiduciary duties. As the case has progressed, the theories became more focused and before the Court of Appeals the focus was on constructive fraud. We, therefore, will focus on that claim as well. Constructive fraud is “ ‘a breach of a legal or equitable duty which, irrespective of moral guilt, the law declares fraudulent because of its tendency to deceive others or violate a confidence, and neither actual dishonesty [n]or purpose or intent to deceive is necessary.’ ” Carrett v. Read, 278 Kan. 662, 674, 102 P.3d 436 (2004). Two additional elements must also be proven in order to establish constructive fraud: (1) a confidential relationship, and (2) a betrayal of this confidence or a breach of a duty imposed by the relationship. 278 Kan. at 674; see also Moore v. State Bank of Burden, 240 Kan. 382, 389, 729 P.2d 1205 (1986), cert. denied 482 U.S. 906 (1987) (party must also conceal facts that the party has legal or equitable duty to communicate, about which the party could not be innocently silent). A “confidential relationship” refers to any relationship of blood, business, friendship, or association in which one of the parties reposes special trust and confidence in the other who is in a position to have and exercise influence over the first party. Heck v. Archer, 23 Kan. App. 2d 57, 63, 927 P.2d 495 (1996). For purposes of constructive fraud, the mere relationship between parent and child or between spouses does not raise a presumption of a confidential and fiduciary relationship. Olson v. Harshman, 233 Kan. 1055, 1059, 668 P.2d 147 (1983); Curtis v. Freden, 224 Kan. 646, 651, 585 P.2d 993 (1978). However, a confidential relationship can be based on an agreement between the owner of property and another who will distribute the owner s property in a specified manner upon the owner’s death. Heck, 23 Kan. App. 2d at 67. Contrary to the Court of Appeals’ holding, the petition in this case alleges these elements. In pleading constructive fraud, the Estate alleged that Clark relied upon Ethel’s agreement to leave three-quarters of her estate to his sons when he executed his will and devised his property to Ethel for her use during her lifetime without making provision for his sons — in other words, a confidential relationship existed between Ethel and Clark. In addition, the Estate alleged that the agreement made Ethel a constructive trustee who had the fiduciary duty to act in good faith and preserve the assets for disposition by will according to the terms of the antenuptial agreement. In addition to adequately pleading constructive fraud, the Estate argues it established the undisputed facts necessary for a finding that a confidential relationship existed. The Estate notes it is uncontroverted that there was a written agreement between Clark and Ethel, the two were married, Clark relied on Ethel’s promises in executing the agreement, Clark bequeathed her a share of his estate in conformity with the agreement, and Ethel violated the duty of good faith implied in the agreement by gifting her property to third parties who were remainder beneficiaries of her trusts. These facts, according to the Estate, establish constructive fraud. The Court of Appeals rejected this argument. Confidential Relationship First, the Court of Appeals stated that the district court made no finding that a confidential relationship existed and concluded an appellate court could not participate in fact finding. See Sall v. T’s, Inc., 281 Kan. 1355, 1362, 136 P.3d 471 (2006) (appellate court is not a factfinding court). This conclusion does not reflect the de novo review that appellate courts perform when an appeal from summary judgment is based upon uncontroverted facts. See Polson, 288 Kan. 165, Syl. ¶ 1. In addition, the conclusion does not reflect an appellate court’s duty to conduct a de novo review of contracts, including antenuptial agreements, or the fact that the Estate’s argument regarding the confidential relationship is based on the terms of the antenuptial agreement. See Miller, 288 Kan. 27, Syl. ¶ 2. Thus, contrary to the Court of Appeals’ conclusion, we can review the antenuptial agreement and the uncontroverted facts to determine if a confidential relationship existed between Ethel and Clark. In this regard, we pause to note that the Court of Appeals incorrectly examined whether there was a “confidential relationship between any of the parties.” 38 Kan. App. 2d at 188. This inquiry fails to reflect the nature of this case, which is based on a confidential relationship between Clark and Ethel because of the antenuptial agreement. The defendants are not alleged to have committed any wrong; they are sued because they have been unjustly enriched as a result of Ethel’s breach of duty. Focusing on Clark’s and Ethel’s relationship, Kansas has repeatedly recognized a confidential relationship arises when spouses agree to leave property by will. Most recently, in Garrett, 278 Kan. at 674-75, we held that violation of such an agreement justified the imposition of a constructive trust. There, the children of the decedent’s predeceased spouse sought a constructive trust on a portion of the decedent’s estate. The spouses, who both had children from previous marriages, executed nearly identical wills, leaving the entire estate to the survivor and then to the children and one set of grandchildren, evenly divided. The wills evidenced a “ Tull and explicit provision for the disposition’ ” of the estate at the death of the surviving spouse. 278 Kan. at 673. After the husband died and his entire estate passed to his spouse, she revoked her will and executed a new will in which she essentially disinherited her spouse’s children. Although the decedent’s first will was revoked and was no longer in effect at the time of her death, her husband’s children argued the first will was contractual, her estate remained subject to its terms, and a constructive trust was an appropriate remedy. They proceeded on the theory of constructive fraud. This court concluded the married couple’s agreement regarding distribution of their property after the death of the survivor created a confidential relationship based on the husband’s trust in his wife to distribute four-sevenths of the estate to his children. Garrett, 278 Kan. at 674-75 (citing Heck, 23 Kan. App. 2d at 67). The agreement imposed a duty upon the wife, and she breached this duty by executing the second will and disinheriting her spouse’s children. Consequently, this court held the district court properly imposed a constructive trust. 278 Kan. at 675. A similar conclusion was reached in Kampschroeder v. Kampschroeder, 20 Kan. App. 2d 361, 887 P.2d 1152, rev. denied 257 Kan. 1092 (1995). In that case, a husband and wife each had a child from previous marriages and brought property into the marriage which they intended to pass to their respective children. However, at the time of the husband’s death, the couple held most of the property in joint tenancy. The district court found there was an agreement that the surviving spouse would enjoy the disputed property but then pass it to the decedent’s child. Contrary to the agreement, the surviving wife transferred the disputed property to her child. Based upon this evidence, the Court of Appeals affirmed the district court’s conclusion that there had been constructive fraud and that a constructive trust was an appropriate remedy. 20 Kan. App. 2d at 363-69. With regard to the confidential relationship element, the Kampschroeder court focused on the husband and wife’s “agreement in which each relied on the survivor to see that the assets were distributed.” Because the husband “placed trust and confidence” in his wife to see that his child received the proper distribution of assets, “it would be inequitable to permit her to disregard the terms of that agreement.” 20 Kan. App. 2d at 366; see Gemmel v. Fletcher, 76 Kan. 577, 92 P. 713 (1907). The same situation arose in this case; Clark made an agreement with Ethel, upon his death he left his assets to her, and he trusted her to comply with the agreement for the benefit of his sons. Under Kansas law it is clear that a confidential relationship existed. Breach of Duty The second reason the Court of Appeals reversed the imposition of a constructive trust was the conclusion that Ethel had not violated any duty arising from the confidential relationship. The Court of Appeals rejected the district court’s determinations that the an tenuptial agreement implied that Ethel had a duty to “ ‘refrain from divesting Clark’s sons of their share of her estate’ ” and, in essence, had a life estate in the marital property. Estate of Draper, 38 Kan. App. 2d at 188. Instead, according to the Court of Appeals, the unambiguous antenuptial agreement merely required Ethel to execute and maintain a valid will, which she did. And, further, the Court of Appeals noted Ethel more than followed the agreement’s requirement to leave “ ‘not less than one fourth’ ” of her estate “ ‘remaining after the payment of debts, administrative expenses, taxes and other legal obligations thereof,’ ” to each of Clark’s sons in that Ethel left her entire estate to Clark’s sons. 38 Kan. App. 2d at 189. Asking us to affirm the Court of Appeals, First Christian argues that the antenuptial agreement required Ethel to leave three-quarters of her probate estate to Clark’s sons, not three-quarters of her assets. First Christian suggests that the use of the term “estate” rather than “assets” shows a deliberate choice by the parties. The defendants, as did the Court of Appeals, also focus on the lack of any clear language establishing a life estate. In response, the Estate does not dispute the fact that the agreement’s language does not contain an explicit statement that a life estate is created. Instead, the Estate argues that the Court of Appeals erred in not holding that the duty of good faith and fair dealing imposed the equivalent of a life estate. First Christian is correct that the term “assets” could convey a different meaning than “entire estate.” But the terms could also be deemed synonymous. Without context, the term “entire estate” is ambiguous because the law recognizes many different types of “estates.” For example, the terms “probate estate,” “taxable estate,” and “augmented estate” can each be substituted for the term “entire estate,” and each such estate would include different assets. Compare K.S.A. 59-6a201(g) (defining probate estate) with K.S.A. 59-6a204 (defining net probate estate) and K.S.A. 59-6a205 (defining augmented estate; adopted after Draper antenuptial agreement was executed); see In re Estate of Hjersted, 285 Kan. 559, 175 P.3d 810 (2008). Nevertheless, in context, the term related to Ethel’s will and, as such, was probably intended to refer to the estate subject to probate administration. However, in context of the recognition that each spouse would maintain separate property, the use of the word “entire” evidenced an intent to integrate both spouses’ property on death to be passed to the sons. In addition, a reference to what was essentially a probate estate does not necessarily mean that only property held in Ethel’s name at her death would be the “entire estate” because this court has recognized that property belongs in an estate if it was fraudulently and illegally transferred by the decedent. See Houdashelt v. Sweet, 163 Kan. 97, 180 P.2d 604 (1947); see also K.S.A. 58a-505(a)(3) (“the property of a trust that was revocable at the settlor’s death is subject to claims of the settlor’s creditors”). Hence, the term “entire estate” does not foreclose the Estate’s argument. What then was the meaning of the provision requiring Ethel to maintain a valid will devising to Clark’s sons “not less than one-fourth to each of them of her entire estate”? As the Court of Appeals stated, there is no language in this provision or other parts of the antenuptial agreement creating a life estate by explicidy stating Ethel would have the use of the property during her lifetime. See, e.g., In re Estate of Burcham, 248 Kan. 897, 904-05, 811 P.2d 1208 (1991); In re Estate of Lehner, 219 Kan. 100, 103-07, 547 P.2d 365 (1976). However, the language used is similar to several cases imposing a life estate when there is an agreement between a husband and wife regarding property that remains at the surviving spouse’s death. On several occasions, this Court has construed that language imposed a life estate with power of disposition for necessities. E.g., In re Estate of Jones, 189 Kan. 34, 366 P.2d 792 (1961) (life estate created by stating that “at the death of the survivor, it is the will and wish of both testators herein that all property thus possessed shall then be divided equally between our three children or their heirs”); Sharpe v. Sharpe, 164 Kan. 484, Syl. ¶ 3, 190 P.2d 344 (1948) (life estate created by phrase “any remaining property”); In re Estate of Clochon, 4 Kan. App. 2d 448, 609 P.2d 177, rev. denied 228 Kan. 806 (1980) (life estate created by stating “upon the death of said survivor, the remainder shall be given” to children). These decisions recognize that the expression of a desire to direct the devise of the remainder of one’s property is an expression of intent that there be a remainder. We need not attempt to interpret this intent from the contract terms, however, because the same conclusion results from application of the duty of good faith and fair dealing. Estate of Chayka, 47 Wis. 2d 102, 176 N.W.2d 561 (1970), is illustrative. In that case, the joint and mutual will provided that all the property would be left to the surviving spouse and then, on that person’s death, the property would pass as designated. After the husband’s death, the wife remarried and over time transferred property into joint tenancy with her second husband. The court held: “The duty of good faith is an implied condition in every contract, including a contract to make a joint will, and the transfers here violate such good faith standard by leaving the will in effect but giving away the properties which the parties agreed were to be bequeathed at the death of both to a designated party.” 47 Wis. 2d at 108. Kansas also recognizes the duty of good faith and fair dealing in every contract, with the exception of employment-at-will contracts. St. Catherine Hospital of Garden City v. Rodriguez, 25 Kan. App. 2d 763, 765, 971 P.2d 754 (1998); Hartford v. Tanner, 22 Kan. App. 2d 64, 71, 910 P.2d 872, rev. denied 259 Kan. 927 (1996). In discussing contracts made either before or after marriage that are intended to fix property rights between a husband and wife, this court has repeatedly stated that the agreements are to be liberally interpreted to carry out the intention of the makers and to uphold such contracts where they are fairly and understandably made, are just and equitable in their provisions, and are not obtained by fraud or overreaching. E.g., In re Estate of Johnson, 202 Kan. 684, 691, 452 P.2d 286 (1969). With uniformity courts have recognized the duty of good faith to be implicit in agreements to devise property in a certain way, whether that agreement is reached in an antenuptial agreement or a different type of contract, and under this duty it is generally recognized that the promisor may not “thwart the expectation of the promisee by squandering his assets irresponsibly or by making gifts of them to other persons. The promisor maintains his power to dispose of his assets, but he has no right to do so in a manner which will frustrate the purposes of his contract.” Rheinstein, Critique: Contracts to Make a Will, 30 N.Y.U. L. Rev. 1224, 1232 (1955). As stated in a decision of the South Carolina Supreme Court, to agree to devise property to another by will and then “turn right around and annul and effectively destroy such testamentary provision by conveying away all of [that] property to [a different person] . . . would be ‘keeping the word of the promise to the ear and breaking it to the hope.’ ” Bruce v. Moon, 57 S.C. 60, 74, 35 S.E. 415 (1900); see, e.g., Wagar v. Marshburn, 241 Ala. 73, 79, 1 So. 2d 303 (1941); Ikegami v. Ikegami, 1 Haw. App. 505, 508-09, 620 P.2d 768 (1980); Dubin v. Wise, 41 Ill. App. 3d 132, 138-39, 354 N.E.2d 403 (1976); Skinner v. Rasche, 165 Ky. 108, 112-14, 176 S.W. 942 (1915); Scott v. Marden, 153 Md. 1, 11-13, 137 A. 518 (1927); Nile v. Nile, 432 Mass. 390, 400-02, 734 N.E.2d 1153 (2000); Johnston v. Tomme, 199 Miss. 337, 347-50, 24 So. 2d 730 (1946); Bower v. Daniel, 198 Mo. 289, 320-28, 95 S.W. 347(1906); Brown v. Webster, 90 Neb. 591, 602-05, 134 N.W. 185 (1912). The Massachusetts Supreme Court, in applying the duty of good faith to an agreement to will property, addressed some of the arguments in this case. In Nile, 432 Mass. 390, a father agreed in a postdivorce contract to leave a specified portion of his estate to the children of the marriage. The father later placed his assets in a trust, leaving no assets subject to probate and not providing for his children. His sole surviving child sought to enforce the contract; in response, the trust beneficiaries argued that the decedent’s agreement to leave a portion of his “estate” did not obligate him to leave a portion of all the property he “enjoyed and controlled on his death” but only a portion of his “probate estate.” The court disagreed and concluded the argument “defies the covenant of good faith and fair dealing.” 432 Mass. at 399. Similarly, the duty of good faith and fair dealing has been applied when the contract to will is made in an antenuptial agreement. In Dubin, 41 111. App. 3d 132, the husband agreed to leave his wife one-quarter of his estate if she surrendered any other claims to his property. Breaching this agreement, the husband transferred the bulk of his assets to his sons from a previous marriage. The wife’s heirs alleged the husband intentionally dissipated the assets in an attempt to defeat the wife’s antenuptial rights, and the trial and appellate courts agreed that the transfers were void. In reaching that holding, the Illinois appellate court found the transfers to be “a breach by the promisor of an implied term of the antenuptial agreement, namely, that the promisor will deal with his or her own property in good faith.” 41 Ill. App. 3d at 137-38. The Dubin court explained that this duty did not mean that the promisor could not use assets: “ Where a man has entered into an antenuptial agreement with a woman who becomes his wife to give her a proportional part of his estate, he may make gifts during his life without breaking the agreement if the gifts are made in good faith and are reasonable in amount. [Citation omitted.] . . . ‘If the decedent had given away property [inter vivos] with furtive intent, for the purpose of defeating the antenuptial contract and [he defrauded] the plaintiff, the gift would [be] void.’ [Citation omitted.]” 41 Ill. App. 3d at 137. Other courts have imposed a similar standard, concluding good faith does not mean that the promisor has no rights to use the property or even to gift some property if done in good faith and in amounts that are reasonable under all the circumstances. Gifts cannot be made, however, if the main purpose is defeating the agreement and preventing it from operating for the benefit of those designated. See Eaton v. Eaton, 233 Mass. 351, 375-76, 124 N.E. 37 (1919); 1 Page on Wills § 10.23, pp. 519-21 (rev. ed. 2003); Rheinstein, 30 N.Y.U. L. Rev. at 1232; see generally Restatement (Second) of Contracts § 205, comment a (1979) (good faith emphasizes “faithfulness to an agreed common purpose and consistency with the justified expectations of the other party; it excludes a variety of types of conduct characterized as involving ‘bad faith’ ”). This standard has been applied in Kansas in a related context. In Fourth Nat’l Bank v. First Presbyterian Church, 134 Kan. 643, 7 P.2d 81 (1932), the wife bequeathed certain property to her husband for use during his life and provided that on his death the remainder was to pass to her children. When the husband at tempted to erect a memorial for his wife, the argument was made that he held only a life estate and did not have authority to dissipate the estate for nonessentials. The court did not label the husband’s interest as a life estate but agreed he was a trustee of the property. This did not, however, obligate him to use the property only for necessities. Rather, the court explained: “After the death of his wife he had dominion and control of her property as well as his own, and with the powers given him in the wills could make binding contracts relating to all the property other than that which was expressly excepted from a disposition of it. In the exercise of his powers there might be a reduction of the estate without affecting the validity of the contracts made. He was not required to keep the estate up to the value which it had when the wills were made or when his wife died. He may have made sales at a price lower than what might have been afterwards obtained. Some of his dealings may have turned out to be improvident or unprofitable investments which tended to reduce the estate, but if made in good faith these would not have operated to destroy the validity of the contracts he had made with others. He had a right to use money in keeping with his station in fife and circumstances, and the right to meet the ordinary social and civic demands in the community.” 134 Kan. at 648-49, This standard, however, would not have allowed a breach of trust and a complete frustration of the purposes of the trust. These authorities persuade us that the implied duty of good faith and fair dealing applied to Ethel’s agreement to leave three-quarters of her estate to Clark’s sons. This duty would not allow Ethel to make gifts that are inconsistent with the justified expectations of Clark that his sons would receive three-quarters of die entire estate Ethel enjoyed at the time of her death. While good faith and reasonableness are usually questions of fact, summary judgment may be appropriate if the facts are uncontroverted and establish that a defined standard has not been met. Gillenwater v. Mid-American Bank & Tr. Co., 19 Kan. App. 2d 420, 426, 870 P.2d 700 (1994); see Trecom Business Systems, Inc. v. Prasad, 980 F. Supp. 770, 775-76 (D. N.J. 1997). This is such a case. Ethel removed over $1 million in assets from her estate and left $10,000 to be distributed to Clark’s sons. In light of the trust Clark reposed in Ethel and the agreement they reached, her giving away virtually all of her assets to others thwarted the intent of the agreement and violated the duty of good faith that Ethel owed to Clark. Nonclaim Statute Alternatively, the defendants argue that the Estate may not recover the assets because this action was not brought during the limitation period of the nonclaim statute, K.S.A. 59-2239(1), which requires “[a]ll demands . . . against a decedent’s estate . . . shall be forever barred” unless brought in the time limitations of the statute. If the statute applies, this action was untimely and must be dismissed. The district court did not specifically address the applicability of K.S.A. 59-2239, but the Court of Appeals briefly addressed the issue, stating: “Waleski Murphy and Moeller argue that the Estate’s claims are time-barred due to the failure of one of the heirs to file a claim against Ethel’s estate pursuant to K.S.A. 59-2239.” Estate of Draper, 38 Kan. App. 2d at 190. The majority found the non-claim statute inapplicable because “none of Clark’s sons was disputing what was contained in the Estate.” 38 Kan. App. 2d at 190. The issue was the basis of Judge Green’s concurring opinion. In his opinion, Judge Green noted that although the Estate sought a “variety of remedies” in the case, they were all based on Ethel’s alleged breach of the antenuptial agreement. In Judge Green’s opinion, Clark’s sons had claims against Ethel’s estate based upon Ethel’s alleged breach of the antenuptial agreement, but any such claims were time-barred by K.S.A. 59-2239. He indicated this was an additional reason for reversal. 38 Kan. App. 2d at 191-92 (Green, J., concurring). We agree with Judge Green that Clark’s sons, not the Estate, were the intended third-party beneficiaries under the antenuptial agreement. Therefore, Clark’s sons arguably had a claim against Ethel to the extent she failed to fulfill her contractual obligations. See State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 107 P.3d 1219 (2005) (third party can enforce contract if he or she is person intended to receive benefit by contracting parties); Cory v. Troth, 170 Kan. 50, 53, 223 P.2d 1008 (1950). And, as we have held in Nelson v. Nelson, 288 Kan. at 597-98, if third-party bene ficiaries seek to enforce a contract made by the decedent, they are making a demand against the estate and must bring a claim within the time limits of the nonclaim statute, K.S.A. 59-2239(1). That does not mean, however, that a claim by the beneficiaries is the only action and procedure available for attempting to recover assets that allegedly should be in the estate but are not. Here the administrator of the Estate seeks to marshal assets and bring them into the Estate, raising the issue of whether this is an appropriate procedure or, as the defendants argue, is a disguised claim against the Estate. We conclude it is an appropriate procedure. The duty to marshal assets is “[ajmong the primary duties of an executor [or administrator].” Murdock v. First National Bank, 220 Kan. 459, 467, 553 P.2d 876 (1976). K.S.A. 59-1401 confers the power to marshal assets, stating: “The executor or administrator shall: (a) Have a right to the possession of all the property of a resident decedent, except the homestead and allowances to the surviving spouse and minor children; (b) marshal all tangible personal property owned by a resident decedent located in the state of Kansas and all intangible personal property owned by a resident decedent wherever located, either directly or by ancillary administration; (c) take possession, within six months from the date of appointment, of all tangible personal property located in this state and all intangible property wherever located, to be held, administered and finally distributed as provided by law .... The executor or administrator, alone or with the heirs or devisees, may maintain an action for the possession of the real estate or to quiet title to it.” We note that while this statute creates some time obligations, no party has raised any issues regarding compliance, and an issue not briefed is deemed waived or abandoned. Cooke v. Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008). Applying K.S.A. 59-1401, Kansas cases make clear that an action to marshal assets is properly brought by the representative of the estate and is not a claim against the estate. Two related cases, Wright v. Rogers, 167 Kan. 297, 205 P.2d 1010 (1949), and In re Estate of Wright, 170 Kan. 400, 227 P.2d 131 (1951), explain this. In Wright, 167 Kan. 297, the decedent had deeded farm property to the defendants in exchange for a promise they would pay taxes, mortgage payments, and expenses related to farming the land. The defendants agreed that the property would be held in trust for the decedent’s benefit or for the benefit of decedent’s heirs at law. Upon the decedent’s death, the defendants refused to reconvey the property, the value of which exceeded the taxes, payments, and expenses they had paid. Some of the heirs at law brought suit directly against the defendants. In response, the defendants filed a motion to dismiss, arguing the action should have been brought in probate court by a representative of the estate. This court agreed and stated that an administrator should have been appointed, who in a fiduciary capacity “could proceed in the manner contemplated by G.S. 1947 Supp. 59-1401 and reduce such property to possession and bring it into the estate as an asset subject to final settlement and distribution.” 167 Kan. at 300; see also In re Estate of Slaven, 177 Kan. 185, 188, 277 P.2d 580 (1955) (administrator claiming property should be in estate should apply for permission to bring action to set aside deeds). Subsequently, in In re Estate of Wright, 170 Kan. 400, some of the same heirs as involved in Wright, 167 Kan. 297, sought to have an administrator appointed in order to have the real estate administered as part of the estate. One of the property owners, who was also an heir at law and had been a defendant in Wright, objected and argued the property was not a part of the decedent’s estate at the time of her death and the probate court did not have jurisdiction because K.S.A. 59-2239 and the general statute of limitation barred the action. The court rejected the objections, noting that this was not a situation where a beneficiary makes a claim against the estate by contending a transfer of property was fraudulent or void — the situation presented in Nelson, 288 Kan. 570. Rather, the court described the petitioning heirs-at-law’s action as seeking the administration of assets which had not previously been administered. Because the petition did not bring an action against the estate, it was not barred by the nonclaim statute. 170 Kan. at 406-07. In reaching that conclusion, the court explained that allowing the action did not defeat the policy of the nonclaim statute. To support its conclusion, the court discussed In re Estate of West, 169 Kan. 447, 454, 219 P.2d 418 (1950). In that case, heirs filed objections to the final settlement because several tracts of real es tate had not been inventoried or administered. Each of the tracts had been conveyed by deeds that were not delivered by the decedent during his lifetime but were found upon his death and subsequently registered. In response to the objections to the inventory, it was argued that the objections were demands on the estate that had not been timely made. The court rejected that view and noted: “Although it has been stated in some of our decisions that an object of the probate code is to provide for a speedy determination of the assets and liabilities of an estate so that it may be settled and a distribution made to the beneficiaries, it is of primary importance that all of the assets be collected and reduced to possession for such distribution and a contention by a beneficiary that all assets have not been collected ought not to be held barred in the absence of a specific statutory provision to that effect.” 169 Kan. at 455. The court held it was appropriate to bring the assets into the estate even though the nonclaim period had expired. 169 Kan. at 454-56. These cases establish that it is appropriate for the administrator of Ethel’s estate to seek to bring assets of the trusts into the Estate and an action to marshal assets is an appropriate mechanism to do so. In such a case, the nonclaim statute does not apply. Nevertheless, some of the defendants suggest that the estate administrator — as a representative of the decedent — cannot bring a claim that requires the administrator to carry the burden of proving the decedent committed actual or constructive fraud or breached duties arising by contract or a fiduciary relationship. However, under Kansas law, this does not change the conclusion that the administrator can bring the action and marshal the assets. Although an estate’s administrator or executor represents the decedent and it is part of the representative’s duties to see that the expressed desires of the decedent are properly executed (In re Estate of Hessenflow, 21 Kan. App. 2d 761, 776-77, 909 P.2d 662 [1995], rev. denied 259 Kan. 928 [1996]), the administrator or executor also owes a duly to creditors and heirs to marshal assets and to act as a fiduciary for all interested persons. In re Estate of Brasfield, 168 Kan. 376, 383, 214 P.2d 305 (1950); In re Estate of Hessenflow, 21 Kan. App. 2d at 776. Those general principles were applied in McGuire v. Davis, 95 Kan. 486, 148 P. 755 (1915). In McGuire, the court stated the issue to be whether an administrator acting for the benefit of the creditors can recover personal property fraudulently conveyed by the decedent to avoid the payment of debts. The court noted an earlier case, Crawford’s Adm’r v. Lehr, 20 Kan. 509, 511-13 (1878), in which the court had held the administrator could not recover under those circumstances. The McGuire court reversed that holding, concluding “the right of an administrator seems clear to maintain an action to set aside, for the benefit of creditors, lands fraudulently conveyed by the decedent,” and “the fact . . . the land has already been sold and converted to money” did not bar an action to recover the sale proceeds. 95 Kan. at 489-90. Applying these holdings, we conclude that the administrator could bring this action, the action was not a claim against the Estate, and the action was not barred by the failure to bring a claim against the Estate within the period of the nonclaim statute. Statutes of Limitation Finally, some defendants assert defenses based on general statutes of limitation, specifically K.S.A. 60-511 (breach of written contract), K.S.A. 60-513(a)(3) (fraud), and K.S.A. 60-515 (statute of repose). They argue Ethel’s transfer of assets to the trusts triggered the accrual of the cause of action and the running of these statutes of limitation. The district court rejected these arguments, concluding the action was brought by the Estate and the Estate’s action could not have accrued before the Estate existed. The court found the issues relating to Clark’s sons “immaterial.” The Court of Appeals did not review these questions, finding them moot because of the ruling on the nonclaim statute. 38 Kan, App. 2d at 191. Nevertheless, through their briefs before this court, the parties have advanced their arguments. Again, we note the parties have not addressed the time requirements in the marshaling statute, K.S.A. 59-1401, and, therefore, we will not address the possible implications of that provision on the parties’ arguments. As to the statutes of limitation arguments, we agree with the district court that this action did not accrue until the earliest time the plaintiff had a right to maintain a legal action. See Pancake House, Inc. v. Redmon, 239 Kan. 83, 87, 716 P.2d 575 (1986) (actions accrue “as soon as the right to maintain a legal action arises”). The equitable basis for imposing a constructive trust on the assets and requiring the defendants, who have committed no wrongdoing, to return the property is unjust enrichment that results from the defendants receiving and retaining property transferred by Ethel in breach of her duty of good faith. See Restatement of Restitution: Quasi Contracts and Constructive Trusts §§ 160, 168 (1936). It is generally recognized that such a cause of action accrues when the “ ‘enrichment becomes unjust.’ [Citation omitted.]” Vila v. Inter-American Investment, Corp., 536 F. Supp. 2d 41, 51 (D. D.C. 2008). As previously noted, for unjust enrichment to occur: (1) A benefit must have been conferred upon the defendant, (2) the defendant must have retained the benefit, and (3) under the circumstances, the defendant’s retention of the benefit must be unjust. In re Estate of Sauder, 283 Kan. 694, 719, 156 P.3d 1204 (2007); see 536 F. Supp. 2d at 51. The statute of limitations begins to run when all of these elements are present. Great Plains Trust Co. v. Union Pacific R. Co., 492 F.3d 986, 994 (8th Cir. 2007) (applying Kansas law and citing Pancake House, Inc., 239 Kan. at 87); Vila, 536 F. Supp. 2d at 51. Often, this means that the action accrues when there is a request for the return of the property or when payment is made to or property is received by the defendant. See Hartman v. Stumbo, 195 Kan. 634, 637, 408 P.2d 693 (1965) (payment made); Desai v. Franklin, 177 Ohio App. 3d 679, 689-91, 895 N.E.2d 875 (2008) (request for return). Here, the unjust enrichment did not occur until after Ethel’s death. See Engelbrecht v. Herrington, 101 Kan. 720, 172 P. 715 (1917) (action for breach of contract to will property arises at death of promisor or when performance becomes legal impossibility); see also K.S.A. 58a-410 to K.S.A. 58a-416 (providing mechanism to modify or terminate irrevocable trusts upon beneficiaries’ agreement). Thus, it was only at her death when she had not fulfilled her contract that the trustees had an equitable duty to return the property or that the beneficiaries had a right to receive the property. All of the elements of unjust enrichment were present when defendants retained the property after Ethel’s death. This action was filed well within the limitation period of K.S.A. 60-512. See Stehlik v. Weaver, 206 Kan. 629, 637, 482 P.2d 21 (1971) (K.S.A. 60-512 applies to claims of unjust enrichment). There was no bar to this action by the Estate to seek a constructive trust on the assets in the defendants’ possession. Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is affirmed.	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Miller, J.: The defendant appeals from a conviction of “littering” under a city ordinance after a shopper paper printed by defendant was thrown on the lawn of a resident who had notified defendant that he did not want to receive it. Defendant publishes a newspaper in Chanute, Kansas. In addition, since 1969, it has published a weekly paper called the Southeast Kansas Weekly, commonly known as a “shopper.” The shopper is created by dropping the front page, the editorial page, comic page, and the local page of the Chanute Tribune and replacing same with various kinds of paid advertising, and it is thrown free-of-charge on the lawns of several communities, including Fredonia, Kansas. In time, a problem arose in the City of Fredonia, where a number of residents complained to the City. We have not been given any details of the events preceding the complaint involved herein, or the extent and duration of the particular problem, except as hereinafter set out. It was stipulated that in 1978, when the problem was called to the attention of defendant that some residents did not want to receive the shopper, a plan was devised whereby a resident could notify the defendant, either by telephone or by use of a printed insert in the paper, and request that the paper not be thrown to him any more. The complaining witness in this case, Rodger Shinn, so notified defendant. Notwithstanding, the shopper was again thrown on his lawn. Mr. Shinn then filed a complaint against defendant in the municipal court of Fredonia, and defendant was summoned to appear before the court. After a trial, defendant was found guilty of violating a city ordinance and fined $50.00. Defendant promptly appealed to the district court. After a brief evidentiary hearing, which was apparently not reported, the matter was submitted to the court on an agreed statement of facts and briefs. This agreed statement of facts is not a part of the record before us; however, the parties have set forth in their respective briefs a statement of the facts each considers essential and we must conclude that these are the evidentiary facts presented to the trial court. The district court affirmed the judgment of the municipal court, hence this appeal. The pertinent parts of the ordinance involved, insofar as this appeal is concerned, are as follows: “LITTERING. It shall be unlawful for any person to dump, throw, place, deposit or leave, or cause to be dumped, thrown, placed, deposited or left in, on, or about . . . any private property, any dirt, filth, sewage, sweepings, dump ashes, tin cans, bottles, glass, paper, rags, tree cuttings, garbage, or other refuse of any kind, except . . . with the consent of the owner or occupant where private property is involved.” Plaintiff does not quarrel with defendant’s claim that in printing and distributing its shopper it enjoys First Amendment protection. Undoubtedly, the shopper is a form of “speech” which enjoys the protection of the First Amendment to the United States Constitution. It is settled that such protection extends not only to political and religious expression but to commercial print as well. Bates v. State Bar of Arizona, 433 U.S. 350, 53 L.Ed.2d 810, 97 S.Ct. 2691 (1977); Bigelow v. Virginia, 421 U.S. 809, 44 L.Ed.2d 600, 95 S.Ct. 2222 (1975). It is also clear, however, that the constitution accords a lesser protection to commercial speech than to other constitutionally guaranteed expression. Metromedia, Inc. v. San Diego, 453 U.S. 490, 69 L.Ed.2d 800, 101 S.Ct. 2882 (1981); Central Hudson Gas v. Public Service Comm’n, 447 U.S. 557, 562, 65 L.Ed.2d 341, 100 S.Ct. 2343 (1980). The specific issue here is whether the delivery ot a shopper paper to an unwilling recipient, after notice not to do so, converts the paper, otherwise protected by the First Amendment, into litter which may be proscribed by the city. It is defendant’s position that freedom of speech and of the press requires no less than an absolute right to address the public on any subject desired, either orally or in print, unless there is a compelling state interest in regulating that speech in a reasonable manner. Defendant contends that no such compelling state interest is shown here, and that permitting an unwilling recipient to invoke the power of the state to invoke sanctions against the speaker or publisher in such a case is not a reasonable regulation and is therefore in violation of defendant’s First Amendment rights. The issue here, however, involves more than a simple delivery of a publication without prior solicitation or consent. Involved here is a continued delivery by throwing a paper onto private property after notice not to do so. Plaintiff’s contentions are not new. In Martin v. Struthers, 319 U.S. 141, 87 L.Ed.2d 1313, 63 S.Ct. 862 (1943), a Jehovah’s Witnesses case, the ordinance involved prohibited door-to-door distribution of handbills and other literature and the ringing of doorbells or otherwise summoning the occupant to receive written or oral speech on any matter. In holding the ordinance to be unconstitutional, Justice Black stated: “The right of freedom of speech and press has broad scope. The authors of the First Amendment knew that novel and unconventional ideas might disturb the complacent, but they chose to encourage a freedom which they believed essential if vigorous enlightenment was ever to triumph over slothful ignorance. This freedom embraces the right to distribute literature, Lovell v. Griffin, 303 U.S. 444, 452, and necessarily protects the right to receive it. The privilege may not be withdrawn even if it creates the minor nuisance for a community of cleaning litter from its streets. Schneider v. State, 308 U.S. 147, 162. Yet the peace, good order, and comfort of the community may imperatively require regulation of the time, place and manner of distribution. Cantwell v. Connecticut, 310 U.S. 296, 304. . . . [319 U.S. at 143.] “Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved. The dangers of distribution can so easily be controlled by traditional legal methods, leaving to each householder the full right to decide whether he will receive strangers as visitors, that stringent prohibition can serve no purpose but that forbidden by the Constitution, the naked restriction of the dissemination of ideas. “Traditionally the American law punishes persons who enter onto the property of another after having been warned by the owner to keep off. ... A city can punish those who call at a home in defiance of the previously expressed will of the occupant .... In any case, the problem must be worked out by each community for itself with due respect for the constitutional rights of those desiring to distribute literature and those desiring to receive it, as well as those who choose to exclude such distributers from the home.” 319 U.S. at 146-149. The right of the government to punish those who enter private property to disseminate ideas “in defiance of the previously expressed will of the occupant” was reaffirmed in Rowan v. Post Office Dept., 397 U.S. 728, 25 L.Ed.2d 736, 90 S.Ct. 1484 (1970). That case involved the validity of a federal statute which established a procedure whereby a person may require a mailer to remove his name from its mailing lists and to stop delivery of advertisements for “ ‘matter which the addressee in his sole discretion believes to be erotically arousing or sexually provocative.’ ” 397 U.S. at 730. In upholding the statute, the court, in an opinion by Chief Justice Burger, stated: “In Martin v. Struthers, 319 U.S. 141 (1943), Mr. Justice Black, for the Court, while supporting the ‘[f]reedom to distribute information to every citizen,’ id., at 146, acknowledged a limitation in terms of leaving ‘with the homeowner himself’ the power to decide ‘whether distributors of literature may lawfully call at a home.’ Id., at 148. Weighing the highly important right to communicate, but without trying to determine where it fits into constitutional imperatives, against the very basic right to be free from sights, sounds, and tangible matter we do not want, it seems to us that a mailer’s right to communicate must stop at the mailbox of an unreceptive addressee. “The Court has traditionally respected the right of a householder to bar, by order or notice, solicitors, hawkers, and peddlers from his property. See Martin v. Struthers, supra; cf. Hall v. Commonwealth, 188 Va. 72, 49 S.E.2d 369, appeal dismissed, 335 U.S. 875 (1948). In this case the mailer’s right to communicate is circumscribed only by an affirmative act of the addressee giving notice that he wishes no further mailings from that mailer. “To hold less would tend to license a form of trespass and would make hardly more sense than to say that a radio or television viewer may not twist the dial to cut off an offensive or boring communication and thus bar its entering his home. Nothing in the Constitution compels us to listen to or view any unwanted communication, whatever its merit . . . 397 U.S. at 736-37. Defendant argues that the ordinance in question restricts content since the judgment of the individual householder whether to willingly accept the publication is necessarily based on content, and that content restrictions have clearly and consistently been declared unconstitutional. Police Department of Chicago v. Mosley, 408 U.S. 92, 33 L.Ed.2d 212, 92 S.Ct. 2286 (1972). The ordinance itself, however, is neutral in content. The decision whether to accept delivery is left to the individual householder, and he is free to reject the publication “whatever its merit.” 397 U.S. at 737. Defendant also relies on Consolidated Edison v. Public Serv. Comm’n, 447 U.S. 530, 65 L.Ed.2d 319, 100 S.Ct. 2326 (1980), where the court held invalid an order of the New York Public Service Commission prohibiting the inclusion of inserts with Consolidated Edison’s monthly bills which discussed political matters, including the desirability of nuclear power. One of the grounds asserted as justifying the order was that the inserts intruded on individual privacy by forcing Consolidated Edison’s views on a captive audience. In rejecting this argument, the Court stated: “The customer . . . may escape exposure to objectionable material simply by transferring the bill insert from envelope to wastebasket.” 447 U.S. at 542. Similarly, defendant contends herein that if a recipient does not want the paper, it is but a short trip from the lawn to the wastebasket to dispose of it, and there are civil remedies available to relieve the unwilling recipient from even that small effort. Defendant also suggests that the alternative would impose such an unreasonable burden upon it as to effectively deny defendant of its First Amendment protection. The case before us does not involve a claim of captive audience. See Cohen v. California, 403 U.S. 15, 29 L.Ed.2d 284, 91 S.Ct. 1780 (1971); Kovacs v. Cooper, 336 U.S. 77, 93 L.Ed. 513, 69 S.Ct. 448 (1949). Nevertheless, we perceive of no reason crucial to defendant’s First Amendment rights that would require a householder to retrieve an unwanted paper from his lawn and dispose of it, no matter how aggravating to him, rather than require the defendant to respect the householder’s prior request to stop throwing the paper on his lawn. Nor does the record before us disclose any competent evidence supporting defendant’s suggestion that its distribution of the newspaper cannot be controlled by traditional methods and that such a requirement would impose an unreasonable burden upon it in derogation of its First Amendment protection. We note also that the court, in Consolidated Edison, went on to indicate that if the State had a legitimate interest in protecting consumers from overly intrusive material: “[I]t is possible that the State could achieve its goal simply by requiring Consolidated Edison to stop sending bill inserts to the homes of objecting customers. See Rowan v. Post Office Department, supra.” 447 U.S. at 542, n. 11. There is nothing in Consolidated Edison, in our view, which indicates a retreat from the Supreme Court’s consistent holdings that the government may punish an intrusion onto private property, even for the delivery of otherwise protected speech, “in defiance of the expressed will of the occupant.” 319 U.S. at 148. Lastly, defendant argues that the ordinance involved is unconstitutionally vague because “no one reading this ordinance would imagine that it could or would be applied to printed matter distributed door to door,” particularly as applied to the shopper which “far from being litter . . . carries news and messages considered of worth by many if not most.” Insofar as the complaining witness was concerned, however, the paper was worthless to him and when thrown on his lawn contrary to his expressed desire, it constituted “paper” and “litter” which he was compelled to dispose of. In State v. Huffman, 228 Kan. 186, 612 P.2d 630 (1980), the court stated: “This court adheres to the proposition that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. Moreover, it is the court’s duty to uphold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done.” Syl. ¶ 1. “The test to determine whether a criminal statute is unconstitutionally vague and indefinite is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. A statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process.” Syl. ¶ 5. The ordinance makes it unlawful to throw, or cause to be thrown, any paper or litter onto private property except with the consent of the occupant. We conclude the ordinance conveys a sufficiently definite warning of the conduct proscribed when measured by common understanding and practice, and is not unconstitutionally vague. The ordinance proscribes delivery of the materials described therein to private property “except . . . with the consent of the owner or occupant.” Although not directly addressed in the arguments, defendant in its brief speaks of the ordinance as proscribing delivery “without prior solicitation.” Such an interpretation would prohibit the delivery of any handbill or paper to private property without prior consent and would undoubtedly violate the First Amendment. The ordinance, as applied in this case, however, has been interpreted by the court to prohibit delivery of the paper to private property only after notice not to do so. As so applied and interpreted, the ordinance is not overbroad and should be upheld. State v. Huffman, 228 Kan. 186, Syl. ¶ 3. The judgment of the trial court is affirmed.	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Parks, J.: This is a divorce action in which the plaintiff-wife appeals the property division and award of custody of the minor daughter to defendant-husband. Defendant cross-appeals the court’s authority to divide as property his military retirement pay. At oral argument, this court was advised by counsel for both parties that the minor daughter is now in the custody of the plaintiff. Therefore, this issue is moot and will not be considered in this opinion. The remaining issue on appeal is whether the trial court abused its discretion in dividing the property of the parties. As part of the property division, the trial court awarded payment of one-third of defendant’s military retired pay to the plaintiff. We shall first consider defendant’s cross-appeal of this award. In McCarty v. McCarty, 453 U.S. 210, 69 L.Ed.2d 589, 101 S.Ct. 2728 (1981), the United States Supreme Court held that federal law precluded a state court from dividing military non-disability retired pay pursuant to state community property law, upon dissolution of marriage. The Court discussed the status of retired pay as either current or deferred compensation but determined that its classification as one or the other was unnecessary because application of state community property law conflicted with the federal law. The Court then concluded that this conflict was a serious one which could injure the objectives of the federal program. For this reason, the Court concluded that under the Supremacy Clause, U.S. Const, art. VI, cl. 2, the federal scheme of military retirement benefits preempts state community property law. Defendant contends that McCarty controls this case and that the district court was without authority to award a portion of his military retirement pay to plaintiff. Plaintiff argues that this case is distinguishable because the division of property in a fair and equitable manner pursuant to K.S.A. 1981 Supp. 60-1610(d), unlike the division effected by applying community property law, is neither in conflict with the federal law nor injurious to its purposes. To determine whether McCarty may be distinguished from this case it is necessary to examine the reasoning of that case fairly closely. A majority of the McCarty Court held that the federal scheme for paying military retirement benefits conflicted with the community property law of California because the retirement pay was intended to be a personal entitlement of the retired service member. Thus, the Court held that to permit a state to classify retired pay as community property subject to the equal interest of each spouse would conflict sharply with the federal purpose of securing the pay as a benefit subject only to the personal desires of the individual retiree. In sum, federal law gave the retired pay to the service member alone and state law could not force it to be shared. Once the Court concluded that the state law conflicted with the federal provisions, it went on to consider whether this conflict was so grave as to require preemption. In concluding that it did, the Court held that the community property division had the potential to frustrate the federal goals of providing for the needs of the retired service member as foreseen by Congress and of meeting the personnel management needs of the active military forces. The latter goal could be disrupted, according to the Court, because the possibility that a state might diminish one’s retirement pay during divorce would decrease the incentive to enlist in the military or to retire at a youthful age. Plaintiff contends that McCarty does not control this case because an equitable division of property under Kansas law does not conflict with federal goals. Plaintiff correctly points out that unlike community property states, Kansas law does not require an equal split of all property acquired during the marriage but, rather, gives the court discretion to consider all of the property, regardless of when acquired, to arrive at a just and reasonable division. K.S.A. 1981 Supp. 60-1610(d); Smith v. Smith, 5 Kan. App. 2d 117, 120, 612 P.2d 1257 (1980). Thus, there is a significant theoretical difference between Kansas law and community property law since in Kansas the court has discretion to award marital property entirely to one party so long as the overall division is fair. Property acquired during the marriage may continue to be identified as that of one party although the other party to the divorce will have the right to some offsetting value accomplished either within the property division or by the award of alimony. The import of the difference in Kansas law from community property law is that a property division here may take military retirement pay into account without automatically conflicting with the federal goal of securing control over retired pay to the retiree alone. However, in this case, the trial court in making its reasonable division ordered a portion of the retired pay to be paid to the plaintiff. Thus, the court took away a part of a personal entitlement governed by federal law. Under the rationale of McCarty, such an award would conflict with federal law whether effected by classification as community property or the exercise of judicial discretion. Moreover, the possibility of retirement pay being divided in Kansas poses just as great a threat to the federal goals sought to be protected in McCarty as would the classification of the pay as community property. Therefore, we conclude that military retirement pay may not be divided in a divorce in Kansas any more than it may be in California. However, McCarty does not appear to prohibit the consideration of the retirement pay as income to be considered in awarding alimony or to consider the retired pay as property which may not be alienated from the retiree but the value of which may be considered in dividing the remaining property. Because no single asset may be viewed independently in adjudicating a property settlement, the case is reversed and remanded for reconsideration of the property division.	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Spencer, ].: This is a declaratory judgment action in which plaintiffs challenge the validity of an instrument entitled “Option to Purchase,” which they executed in favor of defendant. On February 21, 1974, the parties entered into a real estate contract for the sale and purchase of plaintiffs’ residence in Kansas City for the sum of $26,500. Possession was to have been delivered to defendant no later than April 1, 1974. Following execution of the contract, Mrs. Crawn became ill and it was deemed necessary that plaintiffs remain in their home. For this reason, negotiations were conducted which resulted in an instrument executed by defendant whereby, in consideration of $3,000 paid to her, she relinquished all right and interest in the contract of February 21,1974. This instrument was dated March 29, 1974. On that same date plaintiffs executed and delivered to defendant an instrument in writing entitled “Option to Purchase.” The stated consideration, acknowledged by plaintiffs to be sufficient, was “One Dollar and the assignment of a certain Real Estate Contract of February 21, 1974 . . . By this instrument plaintiffs, for themselves, their heirs, executors and assigns, granted to “Mary Ann French, a single woman,” defendant, the exclusive right to purchase their residence property on the same terms and conditions as contained in the original contract of sale and purchase, including the price of $26,500, conditioned however as follows: “The conditions of this option are that grantors shall retain the exclusive use and enjoyment of this realty so long as they desire, but upon their election to move therefrom, to a new residence, they shall notify grantee at her place of employment or her residence, by mail, of their decision. Grantee will then have sixty (60) days within which to exercise this option to buy. “Upon proof of receipt of mailing notice to Mary Ann French and her lack of exercise of this option within the sixty (60) day term, this exclusive right herein granted will terminate and be held for naught.” Plaintiffs continue to reside in their home but now challenge the validity of their grant to defendant, noting the dollar value of the property has increased substantially, and asserting the grant is violative of the rule against perpetuities, defective because not limited as to time for performance, and lacking consideration. Following a bench trial, the court held: “1. That the weight of the evidence discloses that there was ample consideration for the contract in question. Defendant gave up her rights of purchase in exchange for a sum of money agreed upon and an Option to purchase when the plaintiffs no longer lived in the premises. Plaintiff, Maldena Crawn’s illness and emotional distress at the thought of moving from her home was alleviated by defendant’s willingness to forego her rights and allow both plaintiffs to remain in their home. So without a doubt, there was adequate consideration as to all parties to the contract. “2. That while plaintiff has argued the rule against perpetuities and the reasonable time issue, the Court does not find any application of either to the contract in the facts of the case. “3. The contract is binding on plaintiffs and their heirs but is not binding on defendant’s heirs. In other words, the defendant has an option to purchase during her lifetime only.” This appeal places in issue the findings and conclusions contained in paragraphs 1 and 2. However, the court’s holding in paragraph 3 is not challenged and this is as it should be, for clearly the grant to defendant was an “exclusive” grant to her alone. The rights conferred are personal to defendant and will terminate upon her death, or earlier if plaintiffs elect to move and defendant does not exercise the right to purchase within the 60-day term provided. It is only in such latter event that defendant would hold a true option to purchase, for it is only upon plaintiffs’ election to move from their residence that defendant would have an enforceable right to acquire an interest in that property, and that right is clearly limited as to time for performance. Until then, defendant holds merely a right of preemption. “A right of pre-emption differs from an option in that a pre-emption does not give to the pre-emptioner the power to compel an unwilling owner to sell, but merely requires the owner, when and if he decides to sell, to offer the property first to the person entitled to the pre-emption at the stipulated price, and upon receiving such an offer, the pre-emptioner may elect whether he will buy, and if he elects not to buy, then the owner of the property may sell to a third party.” Anderson v. Armour & Company, 205 Kan. 801, Syl. ¶ 1, 473 P.2d 84 (1970). It has long been recognized in this state that contracts similar to the one here in question are subject to the rule against perpetuities when the right of preemption runs for an indefinite period of time. In Henderson v. Bell, 103 Kan. 422, 173 Pac. 1124 (1918), the parties had entered into a contract for the sale of real property which contained a provision that, should first parties elect to sell certain additional acreage, second parties would have the right to purchase that acreage at a specified price. In holding such provision to be void, the court stated: “By the contract, if Bell should elect to sell the property, he must first offer it to the Buchanans. The contract, if enforceable, gave to the Buchanans the right to purchase the property at some future, indefinite, unknown time; and Bell can be compelled to convey the property to the Buchanans at such time for the price named. Bell cannot sell the property to any person without first offering it to those holding under the contract. When sold under the contract, the property must be sold at $65 an acre, although at that time it may be worth $1,000 an acre. Bell does not have an absolute, uncontrolled right to sell the property at any time that he may see fit. It follows that the Buchanans and those holding under them, either as assignees or heirs, would hold a right to obtain an interest in the property running for an indefinite period of time. That right would be held in violation of the rule against perpetuities.” 103 Kan. at 424-25; emphasis added. Plaintiffs rely on Henderson as being “almost identical” to the case at bar. However, a careful reading of that case reveals the contract in question was construed as being binding upon and inuring to the benefit of the “assigns or heirs” of the parties. In that essential respect, Henderson differs from the case at bar, for here the right granted defendant will not inure to the benefit of her heirs or assigns. In 61 Am. Jur. 2d, Perpetuities, Etc. § 65, it is said; “The validity of a pre-emptive right under the rule depends upon whether the right is found to be personal to either or both of the parties involved, so that the right must necessarily expire during the lifetime of one of the parties. . . . “[W]here a pre-emptive right is personal to the prospective buyer, and does not extend to his heirs or assigns, his equitable interest would necessarily vest during his lifetime . . . .” Accord, Campbell v. Campbell, 313 Ky. 249, 230 S.W.2d 918 (1950); Kershner v. Hurlburt, 277 S.W.2d 619 (Mo. 1955). See also Smerchek v. Hamilton, 4 Kan. App. 2d 346, 606 P.2d 491 (1980). The trial court did not err in holding the rule against perpetuities and the reasonable time issue not applicable in this case. The trial court found “ample consideration” to support the preemption agreement, and having reviewed the record we agree. “Ordinarily the question of the presence of a benefit or detriment to the promisor, sufficient to constitute a consideration, is a question of fact, as is the question of what constitutes the consideration, where it is controverted.” Ferraro v. Fink, 191 Kan. 53, 56, 379 P.2d 266 (1963). This court is required to view the evidence in the manner most favorable to the prevailing party below, accepting as true the evidence and all inferences which may be drawn therefrom supportive of the trial court, and disregarding any conflicting evidence. Marcotte Realty & Auction, Inc. v. Schumacher, 229 Kan. 252, Syl. ¶¶ 1, 2, 624 P.2d 420 (1981). Affirmed.	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The opinion of the court was delivered by Fatzer, C. J.: This is an appeal from a conviction by jury trial of the crime of theft of property of the value of $50 or more (K. S. A. 39-720 and K. S. A. 21-3701). The offense proscribed by these statutes is commonly referred to as welfare fraud. K. S. A. 39-720 provides in pertinent part: “Any person who obtains or attempts to obtain, or aids or abets any other person to obtain, by means of a willfully false statement or representation, or by impersonation, collusion, or other fraudulent device, assistance to which the applicant or client is not entitled, shall be guilty of the crime of theft, as defined by K. S. A. 1972 Supp. 21-3701; and he shall be required to remit to the secretary the amount of any assistance given him under such fraudulent act. . . .” K. S. A. 21-3701 provides in pertinent part: “Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of his property: “(a) Obtaining or exerting unauthorized control over property; or “(b) Obtaining by deception control over property . . . ‘Theft of property of the value of fifty dollars ($50) or more is a class D felony. Theft of property of the value of less than fifty dollars ($50) is a class A misdemeanor.” The information charged the defendant, Maudry Ambler, with willfully failing to report income she received from social security during the period of February 1, 1973, through July 1, 1974. This willful false statement was said to have resulted in an overpayment of approximately $900 in Aid to Dependent Children (ADC) payments from the Department of Social and Rehabilitation Services (SRS). The evidence showed that the defendant had four minor children and had received ADC payments since 1970. About one month after the ADC payments started, the defendant’s oldest son began receiving social security payments as the result of his father’s death. These social security payments continued throughout the period of the offense. The amount of ADC payments depends upon household income —i. e., earned income and household resources. ADC recipients are required to submit monthly and semiannual reports on household resources to SRS on forms which are provided. The defendant prepared and submitted all required forms. On each, she listed her current job or jobs and the amount of her wages. On none of the forms did she report the social security payments she received for her son. That a member of the defendant’s household was receiving social security payments first came to light in July of 1974 in a discussion an SRS income maintenance worker had with the defendant. In examining other possible sources of income for the defendant’s household in order to reduce the amount SRS had to pay, the worker asked the defendant about the possibility of her getting social security payments. The defendant first said she was not sure she would be able to get such payments. As the discussion continued, she indicated she had recently started receiving a small social security payment of about $5 a month. Upon further questioning, she said her payments had gone up a little in July to maybe $70 a month. The income maintenance worker checked with the local Social Security Office and learned the defendant had received social security benefits on behalf of her son continuously since January, 1971. At the time of the worker’s conversation with the defendant in July, 1974, her monthly social security payments were $102.90. The defendant gave two reasons for not reporting the social security payments. She told the income maintenance worker she was acting on the advice of some attorney. However, she did not give the attorney’s name nor did she have the attorney contact the worker as requested. At trial, her stated reason for not reporting the social security payments was that the report forms did not require it. Various mandatory report forms the defendant had filled out were admitted into evidence. Each of the forms had a section for reporting “income.” On each form, this section was divided into subsections of “earnings” and “other income.” On one form, the following language prefaced the two subsections: “Report below all income received by persons in the household whose needs are included in your assistance.” Another form used this prefatory language: “Do you or anyone included in your assistance payment have any income?” On each form, social security was enumerated as one of several sources of “other income.” Some of the forms also included a space for the name of the person in the household who was receiving social security payments. After deliberating four hours, the jury rendered a verdict of guilty of theft. The defendant was sentenced to one to ten years and was subsequently placed on probation for two years. One of the conditions of parole was that she make restitution to the Montgomery County SRS, and pay the costs of this action. The appellant raises three points on appeal. She first asserts that K. S. A. 39-720 is unconstitutionally vague. It does not appear from the record that the constitutional ground for reversal of the judgment was asserted below; therefore, it is not properly before this court on appeal. (State v. Estes, 216 Kan. 382, 532 P. 2d 1283.) The appellant next contends the state’s evidence failed to establish any legal requirement that she report to the welfare department the social security payments received by her for her son. We disagree. The evidence showed that the income a welfare recipient receives, whether from earnings or from other sources, affects the amount of the ADC payments. The monthly and semiannual reports on household income are required for this reason. The report forms clearly indicate that income received by any person in the household whose needs are included in the ADC payment is to be reported. There is no dispute that defendant’s son was a person whose needs were included in figuring her ADC payments, or that each of the forms had a place to report social security payments received by a household member. The appellant’s final contention is that it was reversible error for the district court to permit the state to introduce evidence indicating her son was illegitimate. She asserts such evidence was completely irrelevant, prejudicial and deprived her of a fair trial. The offending comments came in the testimony of the two state’s witnesses — the SRS income maintenance worker and the Social Security Office district manager. The income maintenance worker’s testimony revealed how he stumbled onto the fact defendant was receiving social security payments when he was attempting to help her find other sources of support — among them social security. His testimony, as discussed above, was highly important to the state’s case. It indicated defendant’s reluctance to disclose the social security payments she was receiving. During the course of his testimony, the worker said: "... I asked her if, to her knowledge, had [her son’s] father ever admitted paternity to anyone, whereby the evidence would exist then by his admissions that would entitle her to collect social security benefits on the deceased father.” Appellant’s objection and motion to strike were overruled. In his testimony about the social security payments received by the defendant, the Social Security Office district manager explained the reason for the large lump sum payment in July, 1973, and the substantially higher monthly payments thereafter by stating: “. . . In June of 1973, the Supreme Court ruled that illegitimate children would receive the same benefits as legitimate children, and the Supreme Court decreed that we should immediately recompute all past benefits where there would not be discrimination between an illegitimate child and a legitimate child. . . .” The appellant lodged no objection or motion to strike this testimony. Technical errors and irregularities which do not prejudicially affect the substantial rights of the complaining party are to be disregarded on appeal. (State v. Troy, 215 Kan. 369, 524 P. 2d 1121.) It is appellant’s burden on appeal to show affirmatively that error was committed, and to establish that the error prejudiced the substantial rights of the accused. (State v. Freeman, 216 Kan. 653, 533 P. 2d 1236.) Speculation as to the possibility of prejudice is insufficient to reverse a conviction. (State v. Estes, supra.) The question of the legitimacy of defendant’s son was not highly relevant to the facts to be proved. The rendition of how defendant’s failure to report the social security payments was discovered, and the testimony about the amount of the social security payments received could well have been given with no reference to the father’s admitted paternity. But admission of irrelevant evidence does not automatically dictate reversal and a new trial. A defendant is entitled to a fair trial, not a perfect one. Only where the erroneous admission of evidence is of such a nature to affect the outcome of the trial so as to amount to a denial of substantial justice is reversal required. (State v. Bly, 215 Kan. 168, 523 P. 2d 397.) While the evidence complained of may have been irrelevant, we cannot say that it is affirmatively shown to have substantially prejudiced the defendant’s rights, especially in view of the other evidence and the fact defendant chose to testify that all her children were illegitimate. The provisions of K. S. A. 60-261 enjoin courts to disregard those errors which do not affect the substantial rights of the parties. We are of the opinion the errors committed in this case fall within this category. Appellant’s reliance on State v. Darling, 208 Kan. 469, 493 P. 2d 216, is misplaced. That case deals with evidence of sexual immorality as it relates to impeaching a witness on cross-examination. The judgment is affirmed.	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The opinion of the court was delivered by Miller, J.: The defendant, Robert B. Werkowski, was convicted of aggravated assault in violation of K. S. A. 21-3410, and was sentenced to imprisonment for not less than one year nor more than ten years. He appeals, alleging various trial errors. For reasons hereafter set out, we reverse. The record discloses a run-of-the-mill tavern brawl. Werkowski and a friend, David Bolduc, were patrons of the King’s Knight Tavern in Derby, Kansas, on May 4, 1974. They were playing pool. ' Kerry Tabler and his friends, Kendall Wooten, Davey Butler, and Doug Baber, were also in the tavern. The state presented evidence that Bolduc was “obnoxious”; that he spilled beer on the pool table; that he gave unsolicited advice to others who were playing pool; and that he repeatedly and unnecessarily asked Wooten to move out of the way. Wooten finally refused. Defendant then waved his pool cue at Wooten and said “this will make you move.” Wooten took the cue from defendant, laid it down, and then proceeded to shove Bolduc out the door. Meanwhile, according to the state’s evidence, the defendant began stabbing at Kerry Tabler with a pocket knife. Tabler pushed the defendant away and began to run out the door, but defendant— this time without the knife — caught Tabler and grabbed him by the throat. Blows were exchanged. The two struggled until others separated them, at which time the defendant broke away and ran from the tavern, hotly pursued by Tabler, Butler and Baber. They caught up with him in the middle of the street and formed a circle around him. Defendant took out his pocket knife and began swinging it to keep them away from him. Tabler kicked the knife from defendant’s hand, and in the process was stabbed in the foot. Werkowski again ran, this time making good his escape. The defendant denied that he used the knife inside the tavern. His version was that someone grabbed him and a fight started; he grabbed Tabler and someone then pushed him against the wall. He broke loose and ran out the door, but the three men were after him so he pulled out his pocket knife to scare them and make them leave him alone. After Tabler kicked the knife out of his hand, the defendant ran down the highway and got away. Defendant first contends that the trial court erred in allowing the prosecution to cross-examine him regarding a prior conviction. The state, over timely objection, was permitted to elicit from the defendant, on cross-examination, that he was arrested in Barnstable, Massachusetts some 19 years ago, and that he plead guilty to a misdemeanor, unauthorized use of a motor vehicle or joyriding. He testified that he was home on leave from the service at that time. Two friends asked him to go for a ride. He was not driving and did not know the car did not belong to his friends. The state contends that defendant’s counsel, in his opening statement, commented that the defendant was not the sort of a person to be involved in “that sort of situation,” and thus preconditioned the jury to receive more favorably the defendant’s testimony; and that by thereafter testifying that he was honorably discharged after serving for twenty years in the United States Air Force, the defendant put his character in issue. We disagree. The testimony was offered for the sole purpose of impairing defendant’s credibility as a witness. K. S. A. 60-421 provides: “Evidence of the conviction of a witness for a crime not involving dishonesty or false statement shall be inadmissible for the purpose of impairing his credibility. If the witness be the accused in a criminal proceeding, no evidence of his conviction of a crime shall be admissible for the sole purpose of impairing his credibility unless he has first introduced evidence admissible solely for the purpose of supporting his credibility.” The prior offense, unauthorized use of a motor vehicle, does not necessarily involve dishonesty or false statement, and there is no showing in the evidence before us that these were involved. The prior offense was committed nineteen years before the trial in this case. We have consistently held that the remoteness in time of a prior conviction, if otherwise admissible, affects the weight rather than the admissibility. State v. Cross, 216 Kan. 511, 520, 532 P. 2d 1357. But we have also held that the scope and extent of cross-examination of a witness on collateral matters for the purpose of impeachment rests largely in the sound discretion of the trial court. State v. Belote, 213 Kan. 291, 516 P. 2d 159; Tucker v. Lower, 200 Kan. 1, 5, 434 P. 2d 320. As we suggested in Lower, the trial court by exercising sound discretion in this area may prevent a trial from going off on tangents of relative unimportance, as this one did. The fact that a witness used a motor vehicle without authorization once, 19 years ago, would have little probative value upon the question of whether the witness’s present testimony is truthful. The obvious prejudicial effect far outweighs its minuscule evidentiary value. The purpose of the second sentence of K. S. A. 60-421 is to encourage defendants in criminal actions to take the stand, and to prevent the prosecution from smearing rather than discrediting the witness. The opening statement of counsel was not evidence and did not put the defendant’s character in issue, nor did the defendant by his testimony open the door. Evidence as to service with the armed forces and other biographical data does not place credibility in issue. In State v. Stokes, 215 Kan. 5, 7, 523 P. 2d 364, we discussed the statute at length. We said: “. . . Character is not put in issue by the kind of background testimony elicited from nearly every witness as to address, occupation, place of employment, marital status, etc. Such testimony serves more to identify the witness rather than show good character. Where the witness is the accused such biographical data will naturally be somewhat more extensive than in the case of the ordinary witness, but that fact alone does not put the accused’s character in issue. . . . [A] defendant may testify, among other things, to his service in the armed forces and the receipt of an honorable discharge without putting his character in issue. . . .” See, also, State v. Harris, 215 Kan. 649, 527 P. 2d 949; State v. Harris, 215 Kan. 961, 529 P. 2d 101; State v. Bright, 218 Kan. 476, 543 P. 2d 928; State v. Bowers, 218 Kan. 736, 545 P. 2d 303. Credibility of the witnesses was extremely important in this case. The evidence on critical issues was hotly disputed. Thus the evidence of this prior conviction, intentionally introduced by the state for the purpose of impairing defendant’s credibility and weakening his effectiveness as a witness, was in clear violation of the statute and cannot be viewed as harmless error. Defendant also contends that it was similarly error for the state to be permitted to cross-examine him with regard to his involvement in a prior altercation in the same tavern. Much of what we have just said appears applicable to this line of questioning. However, the record indicates that no contemporaneous objection was made. K. S. A. 60-404 provides in substance that a verdict shall not be reversed by reason of the erroneous admission of evidence unless there appears of record a timely and specific objection to the evidence. This rule is applicable in criminal as well as civil proceedings. State v. Estes, 216 Kan. 382, 385, 532 P. 2d 1283. Defendant’s failure to interpose a timely objection precludes appellate review of this point. Defendant next contends that the trial court erred in failing to give a requested instruction on the lesser included offense of simple assault. The point is well taken. Where the crime charged includes 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 offenses of which a defendant might be convicted under the information and upon the evidence. This is true whether the instructions have been requested or not; it is the duty of the court to so instruct even though there is an objection to such instructions. K. S. A. 21-3107 (3). Such instructions are required even where the evidence of the lesser included offense is weak, and consists only of the testimony of the defendant. State v. Boyd, 216 Kan. 373, 532 P. 2d 1064. And see State v. Johnson, 216 Kan. 445, 532 P. 2d 1325, and State v. Schoenberger, 216 Kan. 464, 532 P. 2d 1085. Simple assault as defined by K. S. A. 21-3408 is clearly a lesser offense included within the crime of aggravated assault with a deadly weapon. State v. Warbritton, 215 Kan. 534, 527 P. 2d 1050. Whether such a weapon was used is the distinguishing element. Here, the evidence was hotly disputed as to whether Werkowski used a knife during the fracas inside the tavern. He denied it, and there was some support for his denial in the testimony of other witnesses. There was evidence that he assaulted Tabler without a knife while they were yet inside the tavern. The lesser included offense thus finds support in the evidence. Clearly this was a disputed fact issue and we conclude that the court erred in failing to instruct on simple assault. Finally, the defendant contends that the evidence did not support the verdict because the victim was not in immediate apprehension of bodily harm. Tabler’s testimony refutes this contention. In summary, we conclude that under the circumstances disclosed by the record it was prejudicial and reversible error for the trial court, over objection, to permit the state to cross-examine the defendant about a prior and remote misdemeanor conviction, and it was likewise reversible error to fail to instruct the jury on the lesser included offense of assault. For these reasons, the judgment is reversed with directions to grant the defendant a new trial.	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Harman, C. Affirmed.	[ -76, 96, -104, 124, 43, 32, 24, -104, -19, -111, 103, 51, -21, -61, 21, 117, -114, 95, 85, 82, -59, -77, -9, -39, 83, 67, -109, -11, 51, 106, -74, -99, 76, -80, -101, -39, -58, -56, -17, 28, -26, 7, -70, 65, -79, 96, -76, 9, 58, -117, -75, -41, -93, 44, 26, -57, 8, 46, 90, 101, 72, -80, -104, -113, -123, 13, -109, -90, -100, 39, -38, 46, -124, -7, 13, -120, 115, -74, -58, -12, 51, 121, -88, 72, 107, -126, -4, -67, 22, -111, 37, 106, 13, -122, -65, -119, 73, 42, -75, -79, -52, 16, 6, 58, -47, -59, 95, 108, 15, -113, -65, -77, -51, 125, -68, -103, -49, 101, 20, 48, 77, -28, 93, -122, 25, -45, -98, -66 ]
Per Curiam: This action was filed pursuant to the provisions of K. S. A. 60-1507. It challenges the validity of plaintiff s 1969 conviction of first-degree manslaughter. His appeal from that conviction, which resulted in an affirmance, is reported in State v. Melton, 207 Kan. 700, 486 P. 2d 1361. The district court in the present action denied Mr. Melton’s motion for relief without holding an evidentiary hearing and this appeal followed. It is not necessary to relate the unsavory details of the homicide itself, for they may be gleaned from our former opinion. Suffice it to say, Melton was charged with murder in the first degree in the slaying of a female friend. Three trials ensued: the first was terminated when one of the jurors died; the second ended in a hung jury; and on the third try, plaintiff was found guilty of manslaughter in the first degree. Melton’s 1507 motion for relief recites but two grounds: first, that jurors had personal knowledge of evidence used to support guilt and second, newly discovered evidence. In his record and brief, Mr. Melton unceremoniously expands his grounds of complaint to six. None require more than brief comment. The first two grounds relate to newly discovered evidence which, he asserts, points to perjured testimony. The same purported “newly discovered evidence” was set out in Melton’s motion for new trial in the criminal case which was overruled. Melton did not see fit to include the ground of newly discovered evidence among his points of error in his direct appeal. Points 3 and 4 relate, respectively, to remarks by the prosecutor during the trial, and to his contention that one of the jurors was related to the farmer on whose land the victim’s body was found. Both points were covered in Melton’s motion for new trial, and neither was raised on direct appeal. Supreme Court Rule 121 (c) (214 Kan. xxxix) provides that a proceeding under K. S. A. 60-1507 cannot ordinarily be used as a substitute for direct appeal involving trial errors or as a substitute for a second appeal, but that trial errors affecting rights may be raised even though they could have been raised on direct appeal provided there were exceptional circumstances excusing the failure to appeal. (See Lee v. State, 204 Kan. 361, 461 P. 2d 743; Yurk v. State, 208 Kan. 946, 495 P. 2d 87; Roy v. State, 213 Kan. 30, 514 P. 2d 832.) We discern no unusual circumstances which would have excused plaintiff’s failure to raise points one to four on the direct appeal nor, indeed, does the plaintiff himself suggest any such circumstances. These four issues which he now seeks to have this court determine, were well known to him when he filed his direct appeal and there is naught in the record to indicate why they were not then presented. Points five and six simply were not raised in Mr. Melton’s 1507 motion and thus were not before the trial court in this lawsuit. Point five relates to the introduction into evidence of clothing which Melton claimed had been tampered with, while in point six Melton claims the county attorney furnished state witnesses with a transcript of the prior trials. Neither of these points has the slightest connection with the grounds set forth in the 1507 motion on which Melton predicates this action. The rule of this court has long been that matters not presented to the trial court will not be considered on appeal. (See cases in 1 Hatcher’s Kansas Digest (Rev. Ed.), Appeal & Error, § 304, p. 152.) We note that the entire text of State v. Melton, supra, has been included in the printed record on appeal. The inclusion of that opinion was wholly unnecessary since it was otherwise readily available. Counsel should always avoid burdening the record with superfluous material. No error is found and the judgment of the court below is affirmed.	[ -16, -22, -4, 61, 9, 98, 34, -68, 65, -93, 102, 115, 47, -38, 69, 63, -6, 61, 85, 105, -48, -105, 23, 65, -78, -77, -47, -41, -78, 78, -9, -68, 76, 112, 74, -59, -26, -120, -121, 82, -116, 6, -71, -46, -38, 2, 48, 46, 118, 15, -79, 94, -85, 42, 30, -57, 9, 44, 75, -81, 80, -80, -86, 13, -33, 0, -77, -92, -100, -122, 88, 46, -40, -71, 0, -24, 50, -74, -122, 84, 111, -103, -84, 102, 66, 33, 28, -17, 40, -119, 47, 127, -99, 39, -104, 9, 73, 45, -106, -35, 119, 54, 47, 124, -4, 84, 29, -20, 19, -49, -106, -79, -49, 52, 22, -117, -21, -123, 16, 49, -52, 98, 92, 71, 48, -37, -114, -108 ]
The opinion of the court was delivered by Schroeder, J.: The question presented by this appeal concerns the rights of a landlord and his new tenant to the idle ground, where the lease of a holdover tenant on a year-to-year basis is terminated by proper notice. The land in question was being farmed by the holdover tenant on a summer fallowing basis whereby one-half of the ground is seeded to wheat every other year. C. R. Mastín (defendant-appellant) was operating land owned by Frank C. Brungardt and Twila Brungardt (plaintiffs-appellees) as the holdover tenant in possession of 480 acres of land. The original written lease under which Mastín took possession was dated February 24, 1956. It was for a term of twelve months, beginning August 1, 1956, and ending on August 1, 1957. The lease gave the legal description of the 480 acres in Logan County and, in so far as material to this appeal, Mastín agreed: “. . . First. To cultivate in a good, careful and workmanlike manner all the tillable land on said premises. Second. To allow no waste, to carefully protect all trees, buildings, fences and improvements of every kind on said premises during the continuance of this lease, and at the expiration of the term herein granted to yield up possession of said premises unto the party of the first part in as good condition as when taken, ordinary wear and loss by the elements excepted. Third. To not remove or allow any other person to remove any improvements of any kind from said premises, and to protect same from fire by plowing and burning when necessary, and to keep said premises and every part thereof in good condition and repair without expense to the party of the first part. Fourth. To pay to party of the first part, their heirs and assigns, for the use and occupation of said premises, rent as follows: “Já of all crops raised of all crops and grasses raised on said farm during the term of this lease; and to pay cash rent of $ none * 9 9. “Fifth. To thresh out or combine and deliver the lessor’s share of the small grain before as soon as harvested, 9 9 9, and to husk out the rent com and deliver same before as soon as harvested 9 9 *. Also, give said first party or his agent 5 days’ advance notice of the date he is to thresh or combine the small grain raised, and when threshed, combined or husked to deliver without waste first party’s share of all crops free of all expense, at nearest elevator. “Sixth. Tarty of the first part, his agent or tenant shall have the right to enter upon said premises as soon as second party has harvested the grain grown thereon for the purpose of preparing the land and seeding for crop of 1958, and shall thereafter have full possession of the land so taken." (Emphasis added.) The parties stipulated that pursuant to the term of the above lease the original term of the lease expired August 1, 1957, and as the holdover tenant under the terms of that lease the holdover tenancy terminated August 1,1972. (See, K. S. A. 58-2506, amended L. 1975, ch. 294, § 1.) On December 9, 1971, Frank C. Brungardt and Twila Brungardt entered into a lease of the above described land with Leon K. Stoppel (plaintiff-appellee) wherein Stoppel was given a three year farm tenancy lease of the premises beginning on March 1, 1972, and ending on March 1, 1975, subject to the rights of the present tenant thereon to remove his growing crops therefrom. Prior to August 1, 1972, Mastin voluntarily relinquished possession of a part of the land to the Brungardts, and although that land was covered in the lease there is no issue in this case with respect to that land. The parties stipulated that exclusive of that portion of the land under lease from which a crop had been harvested in 1972, concerning which there is no controversy between them, there were 294.7 acres which could have been sowed to wheat in the fall of 1972 (referred to as idle ground under the summer fallowing practice), and Leon K. Stoppel did in fact sow 294.5 acres of this ground to wheat. The trial court, after hearing all of the evidence and giving consideration to stipulations of the parties, found that the written lease under which Mastin was operating as a holdover tenant was terminated August 1, 1972, by the Brungardts by a notice to terminate tenancy dated March 11, 1972, from the Brungardts’ attorney. The trial court also found that Mastin prior to that time was informed by the Brungardts and Stoppel that Stoppel was the new tenant of this land by reason of the written lease heretofore described. The information and new lease were also effective as notice of termination of Mastin’s lease under its terms on August 1,1972. The trial court further found: “No. 3 “Because of such termination date of August 1, 1972, the defendant Mastin had no obligation under Plaintiffs’ exhibit # 1, a share crop lease, to plow or prepare any of the ground left idle since the harvest in 1971, for planting of the wheat crop to be harvested in 1973; and defendant did no such work. “No. 4 “Paragraph ‘sixth’ of PlaintifFs’ exhibit # 1, so far as the new tenant Leon Stoppel is concerned, is a contract or provision thereof between the contracting parties for the benefit of a 3rd party, the new tenant, and as such is enforceable by such 3rd party in his own name as well as in the name of the contracting parties. Privity of contract is not necessary by such 3rd party beneficiary of the contract, Plaintiffs’ exhibit # 1. “No. 5 “Plaintiffs’ exhibits # 1 and # 2 do not conflict with each other by their terms. Both are share crop leases, and Plaintiffs’ exhibit # 2 had none, and could have no effect on the growing wheat harvested in 1972 by the Defendant Mastin. “No. 5A “The evidence shows that the leased premises was farm land for growing wheat with the practice each year of planting approximately half of the acreage with the other half idle and in a fallow program. “Under this common practice each approximate half of the land would be idle in a fallow program and planted to wheat in alternate years. “Thus, the acreage in controversy herein was the 294.7 acres from which wheat was harvested in the summer of 1971, which would not be ready for planting again until the fall of 1972 for the 1973 harvest. “This 294.7 acres became subject to the terms of Paragraph Sixth of Plaintiffs’ exhibit # 1 following the harvest thereon in the summer of 1971. “No. 6_ “At the time the defendant Mastin learned of Plaintiffs’ exhibit # 2, and that the plaintiff Leon Stoppel was the new tenant, which was sometime prior to March 11, 1972, the defendant Mastin became obligated under Paragraph ‘sixth’ of Plaintiffs’ exhibit # 1 to deliver possession to the new tenant Leon Stoppel of all crop ground left idle since the last harvest thereon, which was in the summer of 1971, except such which he intended to plant to a crop which could be harvested prior to August 1, 1972. “The Court finds that at no time did defendant have any desire or intention to plant, and did not plant, any such idle ground consisting of the 294.7 acres referred to in Paragraph Five of the Stipulation. Nor had the defendant conducted any work on such 294.7 acres since harvest thereon in the summer of 1971. “No. 7 "Under ordinary farm practice such idle 294.7 acres should have been worked two or three times between mid-April 1972 and before planting in the fall of 1972 for the wheat crop to be harvested in 1973. The tenant, the plaintiff Stoppel, in early April, 1972, requested of defendant possession for this 294.7 acres for this purpose and defendant refused any possession before August 1, 1972, unless Mr. Stoppel would employ defendant to work the idle ground under conditions proposed by defendant, or pay the defendant $750.00 with no employment of the defendant. Both conditions of employment or the sum of $750.00 with no employment were illegal requirements for possession of the idle ground under the terms of Plaintiffs’ exhibit # 1, Paragraph ‘sixth’ thereof. “The plaintiff Stoppel refused to comply with such conditions for possession and was prevented by defendant Mastin from possession and cultivating the idle ground until August 1, 1972. Except that the plaintiff Stoppel did go over about 80 acres of such idle ground in the SE % of section 22 about May 10,1972, but was ordered to discontinue by defendant Mastin when discovered, and did so. “No. 8_ “Thus also the plaintiffs were effectively prevented by defendant Mastin from doing anything to minimize damages resulting from inability to work the 294.7 acres by cultivating the same prior to August 1, 1972. The plaintiff Stoppel did work the ground once after August 1, 1972 before planting the entire 294.7 acres to wheat in the fall of 1972 for harvest in 1973. “No. 9 “The Court finds the plaintiffs, suffered damages because of breach by defendant Mastín of Paragraph ‘sixth’ of Plantiffs’ exhibit ‡ 1, in refusing and preventing possession of the idle 294.7 acres prior to August 1, 1972, and resulting in decreased yield thereby in the 1973 harvest as follows: “To F. C. and Twila Brungardt, $2,500.00. “To Leon Stoppel, $5,000.00.” (Emphasis added.) Two actions were filed against Mastín, one by the Brungardts and the other by Stoppel. The trial court consolidated these actions for trial and in accordance with the foregoing findings entered judgment against Mastín of $5,000 in favor of Stoppel and $2,500 in favor of the Brungardts, plus costs and interest of 8% per annum from March 26, 1975. The findings of fact made by the trial court are not challenged; therefore, we must assume they are supported by sufficient evidence presented at the trial. Except for the written documents, the authenticity of which is not challenged, none of the evidence is set forth in the record. The parties agree Mastín was a holdover tenant under the terms of his original lease. (K. S. A. 58-2506 [now K. S. A. 1975 Supp. 58-2506]; and Woodmancy v. Brady, 176 Kan. 522, 271 P. 2d 288.) Mastín has duly perfected an appeal from the foregoing judgment. He contends the trial court erred in finding that Stoppel was a real party in interest as against him, and that the trial court erred in awarding Stoppel damages in the sum of $5,000. Liability for the expense of preparing ground for crops which cannot be harvested during the term of the lease is a matter generally agreed upon by the parties. It has been held that a tenant is not entitled to recover money expended by him in preparing the land for planting a crop he could not hope to harvest, because it would not mature until after his lease expired. (Kohn v. Babb, 204 Kan. 245, 461 P. 2d 775; and Woodmancy v. Brady, supra.) Generally, a tenant renting on a crop-share basis is not entitled to a crop sown but not maturing before the expiration of his lease. (Kohn v. Babb, supra at 250.) On the facts in this case Mastin’s lease expired August 1, 1972. The notice of termination to Mastín is not challenged. Under the summer fallowing practice conducted by Mastín in growing wheat, the 294.7 acres of idle land could not have been seeded to wheal and harvested before the harvest season of 1973, long after the termination of his lease. (See, Fox v. Flick, 166 Kan. 533, 203 P. 2d 186; and Woodmancy v. Brady, supra.) Therefore, under the specific provisions of the sixth paragraph of Mastin’s lease, the landlord, “his agent or tenant” had the right to enter upon the 294.7 acres of idle land as soon as Mastín harvested the 1971 wheat, and received notice of termination of his holdover tenancy, for the purpose of preparing the land and seeding it to wheat for the succeeding crop. Stoppel as the new tenant of the Brungardts on March 1, 1972, by reason of his written three year crop-share lease, had the right to enter upon the premises for the purpose of preparing the land and seeding it to wheat for the crop to be harvested in 1973. (See Finding No. 6; and Duckworth v. Michel, 172 Wash. 234, 19 P. 2d 914 [1933].) As such, Stoppel was a real party in interest. Mastín contends he was required by the terms of his lease to continue farming the land without compensation until August 1, 1972, and his failure to work the 294.7 acres of idle ground prior to August 1, 1972, was a breach of his lease for which Brungardts were entitled to damages. From this premise Mastín argues Stoppel was not a real party in interest. For the reasons stated we think this argument has no merit. The lease Mastín had with the Brungardts specifically gave the Brungardts’ new tenant the right to enter upon the land after the 1971 wheat crop was harvested when Mastín was legally notified of the termination of his lease with the Brungardts. The failure of Mastín to permit Stoppel to enter upon the premises and work the ground for the seeding of wheat in the fall of 1972 resulted in a substantial decrease in the production of the wheat seeded in the fall of 1972 and harvested in 1973. This reduction in wheat yield was the basis upon which the trial court determined the damages. (See, Gowing v. McCandless, 219 Kan. 140, 547 P. 2d 338; and 21 Am. Jur. 2d, Crops, § 79, p. 665.) The total damages assessed against Mastín were awarded by the trial court in accordance with the terms of Stoppel’s crop-share lease, one-third to the Brungardts and two-thirds to Stoppel. (See, Edwards v. Solar Oil Corp., 177 Kan. 219, 277 P. 2d 614.) K. S. A. 1975 Supp. 60-217 (a) provides that every action shall be prosecuted in the name of the real party in interest. In Torkelson v. Bank of Horton, 208 Kan. 267, 491 P. 2d 954, this court stated: “The phrase ‘real party in interest’ as used in our code as well as in the equity procedure from whence it sprang generally came into being in determining which of two or more persons might properly bring an action where holders of assignment or subrogation rights, either whole or partial, holders of different interests in the same property, holders of equitable interests, representatives, trustees and the like were concerned. . . . The requirement that an action be brought by the real party in interest has as one of its principal purposes the protection of the defendant from being repeatedly harassed by a multiplicity of suits for the same cause of action so that if a judgment be obtained it is a full, final and conclusive adjudication of the rights in controversy that may be pleaded in bar to any further suit instituted by any other party . . . One standard frequently applied is that the real party in interest is the one entitled to the fruits of the action, and the phrase ‘real party in interest’ is grammatically quite capable of that meaning . . . In 3A Moore’s Federal Practice the author has this to say: “ ‘The meaning and object of the real party in interest provision would be more accurately expressed if it read: An action shall be prosecuted in the name of the party who, by the substantive law, has the right sought to be enforced.’ (p. 53.) “A party’s substantive right to recover in a particular action is neither enlarged nor restricted by the provisions of the real party in interest rule and we look then to substantive law to see what if any claim for relief plaintiff here has stated in his petition. . . .” (pp. 269, 270.) (Emphasis added.) Joinder of the landlords and tenant (Stoppel) as plaintiffs in their separate actions against Mastín, the holdover tenant, was proper. (Edwards v. Solar Oil Corp., supra; and 52A C. J. S., Landlord & Tenant, § 822, p. 373.) The appellant next contends the trial court erred in finding the appellees were unable to mitigate their damages and in awarding the Brungardts damages in the amount of $2,500. On the record here presented it was through Mastin’s own acts that the rights of the Brungardts and Stoppel were frustrated. Mastín attempted to bring undue pressure upon the appellees to force them to answer his dictates for return of the idle land contrary to the provisions of the lease he had with the Brungardts. Stoppel did enter upon the idle ground about May 10, 1972, and had worked 80 acres before Mastín ordered him off the land. Under these circumstances the appellees did, in fact, attempt every effort to mitigate any losses that may have been occasioned by the willful and wanton acts of Mastín. The conditions Mastín imposed were properly labeled by the trial court as illegal requirements for the possession of the idle ground under the terms of the lease between Mastín and the Brungardts and in particular the sixth paragraph thereof. The damages occasioned by reason of Mastin’s failure to comply with the terms of the sixth paragraph in his lease were of his own creation, and these damagés cannot be attributed to the appellees. The Brungardts and Stoppel in no way created the situation causing damages in this case. The judgment of the lower court is affirmed.	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Per Curiam: This is an appeal by Dennis L. Morris from an order of the district court entered February 4, 1975, following an evidentiary hearing on January 31, 1975, denying relief on his habeas corpus petition filed pursuant to K. S. A. 60-1501. The appellant is an inmate of the Kansas State Penitentiary. Following alleged coercive participation in certain sexual acts the prison administration granted his request to be placed in the Adjustment and Treatment Building under protective custody. This building houses prisoners who are disciplinary problems as well as those, like the appellant, who are there for their own protection. The appellant contends the conditions to which he is subjected in protective custody constitute a denial of equal protection of the laws. He asserts that under the rules applicable to the A and T building he is denied the use of television and radio, is prevented from borrowing a typewriter, is required to wear distinctive clothing, has decreased canteen privileges, is limited to two showers a week, and is subjected to a continuously lighted building. He also complains his food is served cold, but concedes that this may be due to carelessness of inmates employed in the kitchen in not serving it promptly. The appellant further contends the denial to him (and all those individuals in the A and T building) of those privileges afforded the general inmate population, from which he was removed at his own request, amounts to illegal discrimination and a denial of equal protection. Without analyzing the evidence presented in the district court, we find it only necessary to state that on the record the appellant’s complaints do not amount to a denial of his constitutional rights. The record indicates no abuse of administrative discretion or arbitrary action by prison officials. There is no showing that any of the so-called discriminations are based on unreasonable or prohibited class distinctions or that they are other than reasonably necessary distinctions for the orderly administration of the prison and the welfare of the prisoners. In fact, it affirmatively appears that traditional shower baths are available to the appellant in the laundry where he works, and that the requirement of the distinctive uniform is to provide identification of those for whom protective custody is necessary. It may be assumed that the other restrictions are reasonably necessary to prison discipline. They simply do not rise to the level of unconstitutional discrimination. The appellant made a voluntary choice between continuing to reside with the general prison population where he was subject to abuse, and taking up a new residence in a prison environment where he is protected from such abuses but has some incidental restrictions. Helpful precedents are found in U. S. Dept. of Agriculture v. Moreno, 413 U. S. 528, 37 L. Ed. 2d 782, 93 S. Ct. 2821; Norvell v. Illinois, 373 U. S. 420, 10 L. Ed. 2d 456, 83 S. Ct. 1366; Tigner v. Texas, 310 U. S. 141, 147, 84 L. Ed. 1124, 60 S. Ct. 879, 882; Black v. Warden, U. S. Penitentiary, 467 F. 2d 202 (10th Cir. 1972); Bethea v. Crouse, 417 F. 2d 504, 505, 506 (10th Cir. 1969); Knuckles v. Prasse, 302 F. Supp. 1036, 1060, aff’d 435 F. 2d 1255 (3rd Cir. 1970); Levier v. State, 209 Kan. 442, 497 P. 2d 265; Rook v. Cupp, 521 P. 2d 10 (Ore. App. 1974). The judgment of the district court is affirmed.	[ 16, -20, -35, -68, 10, -31, 58, 20, 99, -77, 103, 83, -19, 122, 69, 123, -35, 101, 84, 113, -55, -73, 71, -63, -66, -6, -6, -43, -77, 79, -28, -66, 72, 113, -54, -111, -122, -56, 111, 92, -114, 5, -72, -47, -47, 1, 32, 106, 88, 15, 17, -106, -77, 40, 24, -61, 8, 44, 91, -27, -111, -47, -53, 13, 121, 38, -94, 4, -106, -25, 116, 102, -104, -111, 32, -24, 114, -74, -122, 116, 107, -71, -92, 99, 98, 43, 43, -9, -88, -88, 62, 30, -83, -90, -102, 88, 106, 37, -76, -99, 112, 20, 45, 124, -26, 5, 119, 44, -118, 79, -68, -109, 77, 57, -74, -63, -5, -127, -128, 113, -57, -94, 88, 83, 115, -2, -82, -14 ]
The opinion of the court was delivered by Prager, J.: This is a direct appeal in a criminal action in which the defendant-appellant, David R. Bohanan, was charged with murder in the first degree (K. S. A. 21-3401) and aggravated robbery (K. S. A. 21-3427). He was tried by a jury, convicted of murder in the second degree (K. S. A. 21-3402), and found not guilty of aggravated robbery. The factual circumstances of the homicide as disclosed at the trial were for the most part undisputed and are essentially as follows: Some time during the morning hours of September 13, 1974, Arthur R. Mendoza, was shot in the back of the head and killed by a .38-caliber bullet. At that time Mendoza resided in an apartment in Wichita with Ernest Rodriguez and Eddie Jaso. Mendosa was unemployed but made his living selling drugs, especially marijuana. Mendoza and the defendant, David R. Bohanan, were ap parently casual acquaintances. Early on the morning of September 13 the defendant called Mendoza’s apartment and had a conversation with Ernest Rodriguez concerning the purchase of marijuana. Rodriguez was just about ready to leave for his employment and he suggested that the defendant speak with Mendoza later in the morning. Rodriguez then left for work and did not return to the apartment until shortly after noon. He found the apartment in shambles and Mendoza lying dead in a pool of blood with a severe wound on the back of his head. The police were summoned and an investigation commenced. One of the detectives investigating the case, Darrell Oakley, learned from a neighbor that a black male had been observed running from the apartment. The man slipped and slid down an embankment into the side of a red car parked nearby. This man then got in the car which immediately left the scene. The Wichita detective interviewed Rodriguez and Jaso and obtained a list of names of persons known to have been in the apartment recently. One of the names provided was that of the defendant, David R. Bohanan. Oakley was acquainted with the defendant and attempted to locate him. He drove to the defendant’s house at approximately 6:00 p. m. on the evening of September 13. Only the defendant’s brother and sister were home and Detective Oakley asked them to have the defendant call him when he came in. Oakley returned to the police station. Upon his return to the police station Oakley was informed that Arthur Mendoza had, in fact, been shot to death. Not long thereafter Oakley was advised that David Bohanan had called by telephone asking for Oakley. Detective Oakley and Detective Allen then left for Bohanan’s house arriving there at approximately 7:45 p. m. At this time Detective Oakley possessed only the following information about the Mendoza homicide: He knew that Mendoza had been shot in the back of the head by an unknown firearm and that the wound was discernible as a gunshot wound only by a close examination of the wound. He also had information that during the morning of the homicide an unknown black male had been seen running away from the vicinity of Mendoza’s apartment, had slipped, slid down an embankment, and had run into a red automobile parked at the curb. This man got into the red automobile which immediately departed. When the police car containing detectives Oakley and Allen drove up in front of the defendant’s home, the defendant was on the porch. Oakley asked defendant to come to the police car and the defendant did so. The defendant sat in the right-rear seat and the two detectives in the front seat. Before the defendant got into the police car Oakley informed him that a homicide had been committed. At that time Oakley did not consider the defendant to be a suspect. Detective Oakley first asked the defendant if he knew anyone who owned a red car. The defendant said that the only person that he knew who owned a red car was a friend, Wayne Woods. He described the Woods vehicle. Detective Oakley then asked the defendant where he had been on the night before and that morning. The defendant stated that he had been at several friends’ houses, at a night club, and finally at his girlfriend’s house. The defendant further stated that he had awakened that morning and had a telephone conversation with Ernest Rodriguez in which he asked if Rodriguez had any marijuana. Rodriquez advised him that he, the defendant, would have to come over to the apartment later to see Arthur Mendoza. Later that morning defendant drove with Wayne Woods in Woods’ car to the 1500 block of Hillside, a short distance from the Mendoza apartment. The defendant stated that he went to the Mendoza house, knocked on the back door, received no answer, and then returned to the car. Detective Oakley then told the defendant that that did not sound right because he had been informed that a black male was seen running across the yard, sliding down the bank into the side of a red car, and then get into the car. In response the defendant said that was right, that he had run from the house after almost being bitten by a dog. The defendant then stated that when he tried the back door of Mendoza’s house the door was unlocked, that he went into the house and noticed that the apartment was all “tom up”, and that he ran to the car. Oakley said that did not sound right, for a disarranged living room to cause a person to run. According to Oakley the defendant then said that was right, that he had gone up and knocked on the back door, did not get an answer, and on trying the door found it unlocked. He walked into the apartment and found the place tom up. He called Mendoza’s name and, as he entered the living room area, he could see Mendoza lying on a mattress with a hole in his head with blood running out of it. He further stated that he did not know if Mendoza was alive or not and then ran out of the house. At this point Detective Oakley ceased questioning the defendant. Oakley stated that in view of defendant’s statement that he had observed a hole in Mendoza’s head in the apartment, Oakley concluded that the defendant had to have been there when Mendoza was shot or had shot him. At that point Oakley asked the defendant to accompany him to the police station. At the suppression hearing Oakley testified in substance that he did not consider the defendant to be under arrest when he was questioned in the police oar, nor did he suspect that the defendant was involved in the killing until the defendant mentioned seeing the wound in the back of the defendant’s head. At that point Oakley suggested that the defendant accompany the detectives to the police station. At that time Oakley considered the defendant fi> be under arrest. At the police station Detective Oakley handed the defendant a printed form containing a statement of his constitutional rights as required by Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). The defendant read aloud the Miranda warning as oontained in the printed form. The defendant initialed each paragraph as each was explained by Oakley and the defendant signed the form at the bottom indicating that he understood his rights. The defendant asked Oakley to explain the meaning of the word “coercion”, which Oakley did. Deteotive Oakley then asked the defendant if he wished to talk to the detectives and the defendant stated that he would do so. The defendant then proceeded to give the statement which was later admitted into evidence. As he had previously done, the defendant narrated to Oakley different versions of his activities that morning. The defendant’s final version of the circumstances surrounding the killing was that he had gone to the Mendoza apartment; that he and Mendoza had fought after Mendoza had drawn a gun on him; that he had taken the gun away from Mendoza; that Mendoza had threatened him with a red hot iron; that he pushed Mendoza away several times and finally shot him with the gun to keep' him from getting up. Following the giving of this oral statement, the defendant wrote down the same version of what had happened. When he had finished it, Oakley asked the defendant if he would make a taped statement. The defendant agreed and a taped statement was made at approximately 1:00 a. m. on the morning of September 14. Following the giving of the taped statement the defendant accompanied Detective Oakley to his home where they retrieved bloodstained clothing worn by the defendant that morning at the time of the shooting. The defendant also accompanied the detective to his girlfriend’s house where the pistol was retrieved. The defendant was subsequently charged with first-degree murder and aggravated robbery. At the trial the state introduced into evidence the bloodstained clothing and the pistol which fired the bullet recovered from Arthur Mendoza’s brain. Ernest Rodriguez testified about his conversation with the defendant at 8:00 a. m. on the morning of the killing and the discovery of Mendoza’s body at 12:15 p. m. Rodriguez further testified as to a conversation he had with the defendant later when they were being held in jail in the same cell. In this conversation defendant told Rodriguez that Mendoza threatened him with a gun, that a fight ensued, that defendant obtained possession of the pistol and that he fired the gun as Mendoza came at him with a hot iron. Wayne D. Woods testified that on the morning of September 13 he gave the defendant a ride to Mendoza’s apartment and that on returning from the apartment the defendant had a gun and blood on his clothing. By way of explanation the defendant told Woods that he and another guy got in a fight, that the other guy had an iron and was going to burn him, that they struggled, and that he got behind him and hit him in the head. Other witnesses for the state described the discovery of the body of Mendoza, the location of an iron clutched in the victim’s right hand underneath his body, and the results of the autopsy and other scientific tests conducted by the police department laboratory. This testimony established beyond any question that the defendant Bohanon had shot Arthur Mendoza with Mendoza’s pistol. The state called as its last witness Darrell Oakley to- testify concerning the statements made by the defendant. At the suggestion of the prosecutor the trial court conducted a Jackson v. Denno hearing outside the presence of the jury. Detective Oakley testified substantially in the manner discussed above. In the police oar outside the defendant’s home Oakley asked the defendant the questions set forth above and ceased questioning the defendant at the point where the defendant admitted having seen a bullet hole in Mendoza’s head. Oakley testified that before any interrogation was conducted at the police station, he fully advised defendant of his constitutional rights and that the defendant signed the Miranda form indicating that he understood those rights. It was his testimony that defendant’s statement was voluntarily made without force or coercion. According to Oakley the defendant was not nervous or crying during interrogation. He did not request an attorney and Oakley did not remember him asking to call his mother. Oakley said at no time did the defendant state that he did not want to talk. The defendant also testified at the Jackson v. Denno hearing. He stated that at the police station he did not fully understand his rights at the time of the questioning or at the time of the hearing. He acknowledged the presence of his initials on the Miranda warning but stated that he wanted to call his mother so she could get him a lawyer. According to the defendant he was told that she was being called. He stated that he was scared throughout the questioning and did not know that he had a right to stop answering questions. The defendant did not dispute Oakley’s version of what occurred in the police car before defendant was taken to the police station. Oakley and the defendant were the only witnesses to testify during the Jackson v. Denno hearing. The trial court then ruled as follows: “. . . the Court finds- that all statements given prior to the Wichita Police Department were voluntary statements. The defendant was in custody. The testimony is when he made this one particular statement about which Oakley testified at that time that Detective Oakley made the . . . subjective judgment that the defendant was not free to leave, that his rights to come and go were substantially impaired at that time. Although Detective Oakley did not technically place him under arrest, I think he recognized for all practical purposes the defendant was under arrest. It was only at that point that the state had the obligation to advise the defendant of his rights. “There may have been statements made between that time and the time the defendant was advised of his rights. There may not have been. It doesn’t make much difference because they haven’t been offered by the State. He indicated that he understood his rights. He read them out loud. I don’t know what more the police could have done in this respect as far as advising the defendant of his rights. “He was properly advised according to Miranda vs. Arizona and understood these rights. He waived those rights, he voluntarily, knowingly, understandingly and intelligently gave a voluntary statement to the Police Department. The statements are admissible.” Following this hearing Detective Oakley took the stand and testified before the jury. His testimony was essentially as set forth' above. The defendant told him three different versions about his actions on the morning of the homicide each time placing the defendant a little further into the apartment. Following the presentation of Oakley’s testimony as to the defendant’s statements, the state rested. The defendant then took the stand in his own behalf. He testified that he had been driven by Wayne Woods to Men doza’s house where Mendoza pulled a pistol on him; that he had wrestled the pistol from Mendoza’s hand; that Mendoza came at him with a hot iron; that the defendant pushed Mendoza back several times and finally that he fired the gun “to stop the fighting” and because he was “scared” but he did not intend to shoot Mendoza. In rebuttal the state recalled to the stand Darrell Oakley who identified the defendant’s taped statement taken by Oakley at the police station. This statement was admitted into evidence over the objection of defense counsel. Both of the parties then rested. The evidence at the trial raised a bona fide issue as to self-defense and the defendant’s intent at the time he shot Mendoza. The jury found the defendant guilty of second-degree murder and not guilty of aggravated robbery. Following his conviction, the defendant appealed to this court. The sole point raised by the defendant on this appeal is that the trial court erred in admitting the testimony of Detective Oakley and the taped statement of- the defendant both of which contained defendant’s admissions that it was he who shot Arthur Mendoza and incriminating circumstances surrounding the killing. In substance the defendant contends that his incriminating statements were inadmissible for two reasons: (1) The oral statement taken in the police car by Detective Oakley was taken in violation of the Miranda rule since admittedly defendant was not advised of his constitutional rights, and (2) Considering the totality of the circumstances, defendant’s statements taken at the police station were made involuntarily and were not the product of a free and independent will. We must first consider the admissibility of defendant’s incriminating oral statements made in response to questioning by Detective Oakley in the police car in front of the defendant’s home. It is undisputed that the police officers did not give to defendant the Miranda warnings in the police car. The Miranda warnings are required where there is a custodial interrogation of the defendant by police officers. It is the position of the state that there was no custodial interrogation of the defendant and hence the Miranda warnings were not required. Because of the difficulty of formulating a precise definition of “custodial interrogation” the courts have taken a “case-by-case” approach to resolving questions of custodial interrogation. (United States v. Akin, [C. A. 5th, 1970] 435 F. 2d 1011.) The particular factual circumstances in each case are therefore of the upmost importance. In Miranda the Supreme Court of the United States defined “custodial interrogation” in the following language: . . By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. . . .” (p. 444.) Miranda recognized, however, that general on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact finding process does not constitute custodial interrogation requiring a Miranda warning. The question of where to draw the line has caused great concern for courts and commentators in the post-Miranda era. In 31 A. L. R. 3d 565 there is a comprehensive annotation on the subject entitled “What Constitutes ‘Custodial Interrogation Within Rule of Miranda v Arizona Requiring That Suspect Be Informed of his Federal Constitutional Rights Before Custodial Interrogation”. Some cases in the various jurisdictions are not in agreement even where the factual circumstances are quite similar. We note several cases where the factual circumstances were comparable to those presented in this case and the appellate court held there was no custodial interrogation and hence the defendant’s statement to police officers was admissible. (State v. Bower, 73 Wash. 2d 634, 440 P. 2d 167; State v. Caha, 184 Neb. 70, 165 N. W. 2d 362; and United States v. Akin, supra.) Since Miranda this court has developed a number of general guidelines to be applied in determining whether or not a custodial interrogation has taken place. In State v. Brunner, 211 Kan. 596, 507 P. 2d 233, we held that a person who has not been arrested is not in police custody unless there are significant restraints on his freedom of movement which are imposed by some law enforcement agency. We have also declared that a general questioning of citizens in the course of an investigation in the fact finding process does not constitute custodial interrogation. We defined an investigatory interrogation as the questioning of persons by law enforcement officers in a routine manner in an investigation which has not reached an accusatory stage and where such persons are not in legal custody or deprived of their freedom of action in any significant way. (State v. Frizzell, 207 Kan. 393, 485 P. 2d 160.) In State v. Carson, 216 Kan. 711, 533 P. 2d 1342, Syl. 5, we suggested that circumstances bearing on whether a person questioned was subjected to “custodial interrogation” requiring Miranda warnings can be classified under the following general headings: (1) The nature of the interrogator; (2) the nature of the suspect; (3) the time and place of the interrogation; (4) the nature of the interrogation; and (5) the progress of the investigation at the time of interrogation. In Carson we also stated that the fact a suspect is the focus of an investigation, standing alone, does not trigger the need for a Miranda warning but it may be one of the determinative factors in arriving at a decision whether such a warning is needed. In analyzing the factual circumstances presented in the case before us, we have concluded that the defendant was not entitled to a Miranda warning at the time he was questioned by Detective Oakley in the police car because he was not “in custody” at the time he was questioned. At this time the investigation was of a general nature. No warrant existed for defendant’s arrest and no charge had been made against him or anybody else. The detectives approached defendant on his front porch, identified themselves, told him the purpose of their inquiry, and then asked him to sit with them in the police car to which suggestion the defendant readily agreed. At that time the detectives knew only that the defendant had been at Mendoza’s apartment within the previous 24 hours. Detective Oakley knew that Mendoza had been shot in the back of the head and that during the morning of the homicide an unknown black male was observed in the vicinity of Mendoza’s apartment and had departed from the area in a red automobile. It was the hope of Detective Oakley that the defendant might give them some information which would lead to the identity of the owner of the red automobile and the identification of the black male who was observed in the area. When the defendant made statements which raised a suspicion that he was present at the time Mendoza was shot, the detective immediately stopped further interrogation and took the defendant into custody. There is nothing in the evidence to show that prior to that time there was any restraint, let alone “significant restraint”. It appears that the defendant was free to go at any time. There is no evidence that the detective used force to compel defendant to sit in the police car nor that any promises or threats were made to induce defendant to give any information. In view of the absence of any evidence to support a finding of custodial interrogation, and the early stage of investigation at which the questioning of defendant occurred, we have concluded that these facts fail to establish that a custodial situation existed and therefore the Miranda warnings were not required during the questioning in the police car. Hence defendant’s oral statements made in the police car were admissible. The defendant next maintains that his constitutional rights were violated by the trial court’s admitting into evidence his statements made at the police station. Here the trial court conducted a full evidentiary hearing to determine whether the requirements of Miranda were complied with and further to determine whether or not the appellant knowingly, voluntarily, and intelligently waived his rights and made his statements voluntarily without promise or coercion. We have examined the entire record and have concluded that there is substantial competent evidence to support findings of the trial court that the defendant after being given proper Miranda warnings voluntarily, knowingly, and intelligently waived his Fifth and Sixth Amendment rights. It is clear that the trial court did everything required of it in conducting the Jackson v. Denno hearing. Since there was some conflict between the testimony of Detective Oakley and that of the defendant, it was the duty of the trial court to weigh such conflicting evidence and make its findings based on the totality of the circumstances disclosed. Here there is evidence to show that the defendant read and voluntarily signed the waiver of rights form and that there were no threats or coercion by the police officers. Although defendant did not initially understand the term “coercion”, it was adequately explained to him by Detective Oakley. The period of questioning was not extremely lengthy. Furthermore the defendant testified in his own behalf at the trial and the statements which he gave at the police station were substantially in conformity with his testimony. Under all of the circumstances we find that the trial court did not err in admitting into evidence the statements given by defendant to the police officer at the police station. For the reasons set forth above the judgment of the district court is affirmed.	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