and hire, without first obtaining a license therefor from the state board of charities and corrections. This section shall not apply to hospitals, asylums or institutions established and conducted by the state or county: And provided also, that it shall not apply to cases where an insane person is detained and treated in his own home or that of some relative or friend. Every application for such license shall be accompanied by a plan of the premises to be occupied, to be drawn on a scale of not less than one-eighth of an inch to the foot, with a description of the situation thereof, and the length, breadth and height, and reference by figure or letter to rooms and departments therein, and a statement of the quantity of ground, exercise and recreation of patients proposed to be received therein, and also a statement of the number of patients to be received therein, and whether the license so applied for is for the reception of male or female patients, or both, and if for the reception of both, what number of each sex proposed to be received into such house, and of the means by which the one sex may be kept distinct and apart from the Gen. St. 1909, § 8493. A violation of the act is declared to be a misdemeanor, and to be punishable by a fine. This is the statute which it was alleged the appellants repeatedly, continuously, and persistently violated; and this allegation was supported by the evidence, and the institution so maintained in violation of this other. dience to its requirements. It has often been broadly stated that an injunction will not lie to prevent the commission of a crime or penal offense, but this is subject to important qualifications. The remedy has been upheld in some situations where the act enjoined was criminal. "It is true that ordinarily a court of equity will decline to issue an injunction to restrain the commission of a crime; but a continuing injury to property. or business may be enjoined, although it may also be punishable as a nuisance or other crime." Vegelahn v. Guntner, 167 Mass. 92, 99, 44 N. E. 1077, 1078, 25 L. R. A. 722, 57 Am. St. Rep. 443. A Courts of equity are reluctant to use the process of injunction where the remedy by indictment or information is efficacious, but will not hesitate where the remedy is not adequate, and it is necessary to protect the rights of the public or an individual. court is not powerless to prevent the doing of an act merely because it is denounced as a public offense. In re Debs, Petitioner, 158 U. S. 564, 15 Sup. Ct. 900, 39 L. Ed. 1092; North American Ins. Co. v. Yates, 116 Ill. App. 217; Columbian Athletic Club v. State ex rel. McMahan, 143 Ind. 98, 40 N. E. 914, 28 L. R. A. 727, 52 Am. St. Rep. 407; Commonwealth v. McGovern, 75 S. W. 261, 25 Ky. Law Rep. 411, 66 L. R. A. 280; State ex rel. Crow v. Canty, 207 Mo. 439, 105 S. W. 1078, 15 L. R. A. (N. S.) 747, 123 Am. St. Rep. 393. A related subject is considered in State v. statute was conducted as the court found in Snelling, 71 Kan. 499, 80 Pac. 966. It is a such a manner that its inmates cried out, is a public nuisance, its maintenance may be well-recognized principle that, when a place screamed, and made noises by day and night, that they escaped clad only in night enjoined at the suit of the public prosecutor, clothes, causing great fear and consterna- although its maintenance is subject to crimtion, and the peace and quiet of the cominal prosecution. 5 Pom. Eq. Jur. § 479. If it should be conceded that the mere maintemunity was disturbed. To prevent the continued violation of law attended by these nance of this retreat for the insane in violaevil consequences, the injunction was granted. tion of law without the offensive sounds and The Legislature has declared that insti- sights referred to in the finding would not tutions for the care and treatment of the be a nuisance, and therefore not within this insane for compensation should not be esrule, then it should also be observed that the tablished without a license from the proper right of the government to restrain violaofficers of the state having the care and tions of penal statutes is not confined strictoversight of the unfortunate, which license ly to cases of nuisance, but is extended to should be issued only upon a showing of analagous cases. 5 Pomeroy, Eq. Jur. § 480. suitable plans and facilities which the board The obligation of the government to promote may deem adequate for such an important the interest of all and to prevent the wrongundertaking. This statute, we may presume, doing of one resulting in injury to the genwas designed for the protection of these eral welfare, is often sufficient to give it a in need of humane care, and also to protect standing in court to obtain an injunction the public from the danger, consternation, (In re Debs, Petitioner, supra), and, where and disturbance incident to inadequate facili- a statute like the one under consideration is ties or inefficient administration in private persistently and continuously violated, no unlicensed institutions. The cries of the good reason is perceived why the principle mentally unbalanced and deranged and dan- should not apply, although the place (with ger from their irresponsible acts are calcu- the offensive sights and sounds removed) lated to, and do, cause apprehension and should not be held a public nuisance. Indistress, although no actual physical harm deed, it was said by Mr. Justice Valentine be done. Hence the wisdom of the statute in State v. Crawford, 28 Kan. 727, 733, 42 in seeking to secure proper places and facili- Am. Rep. 182, that: "Every place where a ties for the proper treatment of these un- public statute is openly, publicly, repeated license, should one be obtained, and it should be operated so as to avoid the disturbances against which the injunction was granted or other violation of law. The judgment is affirmed. All the Justices concurring. ally violated is a public nuisance." It may not be necessary, however, to go to that length in order to uphold the clause in the decree objected to. Whether the place would be a public nuisance or not if the offensive sights and sounds were removed, still the state would have such an interest in enforcing obedience to a law having beneficent purpose and effect of this statute STATE ex rel. JACKSON, Atty. Gen., et al. v. that it may properly invoke the aid of an injunction to prevent a recurrence of the nuisance, not merely to prescribe limitations upon the outlawed act, but to prohibit it. The statute in question having been continuously violated, thereby causing fear, consternation, and disturbances of the peace, the injunction was rightfully issued to restrain the defendants from receiving into such unlicensed institution, and from keeping, maintaining, caring for, or treating therein, persons of the class or classes named in the statute. In the allowance of injunctions in such a case courts are not restricted to the prohibition of disturbances of the peace. They may prohibit the violation of law or of duty resulting in such disturbances, or evils of the nature stated in the findings in this case. A court cannot prescribe how an institution shall be operated which the law declares shall not be operated at all. Without a license there is no right to maintain the retreat, however wise its management. It was held in Stotler v. Rochelle, 83 Kan. 86, 109 Pac. 788, 29 L. R. A. (N. S.) 49, that the establishment of a cancer hospital in proximity to dwellings in a city should be enjoined. It was argued by counsel in that case that, if properly managed, the hospital would be harmless, and therefore should not be enjoined, but the court said: "The question is not whether the establishment of the hospital would place the occupants of the adjacent dwellings in actual danger of infection, but whether they would have reasonable ground to fear such a result, and whether, in view of the general dread inspired by the disease, the reasonable enjoyment of their property would not be materially interfered with by the bringing together of a considerable number of cancer patients in this place." 83 Kan. 91, 109 Pac. 790. So it may be observed here, that, with proper management in the future, there might be no actual danger from the continuance of this retreat for the treatment of the mentally deranged but the apprehension and alarm of the community will continue, and it is believed that the public has the right to restrain violations of a statute which, if obeyed, would bring all such institutions under the effective control of the state, and prevent alarms and disturbances in the community. Nothing in this decision will prevent the future operation of this institution under a LINDSAY. (Supreme Court of Kansas. (85 Kan. 192) June 10, 1911.) EVIDENCE (§ 478*) — OPINION EVIDENCE MENTAL CONDITION. In a proceeding for contempt in violating an injunction restraining the maintenance of a private asylum, evidence of a witness that made her nervous and disturbed her was admisscreams from the cottages which she described sible; a party being competent to testify to his own mental condition. [Ed. Note. For other cases. see Evidence, Action by the State, on the relation of Fred S. Jackson, Attorney General, and others, against W. S. Lindsay. From a judgment assessing a fine for contempt for violating an injunction, defendant appeals. Affirmed. Z. T. Hazen, R. H. Gaw, and F. P. Lindsay, for appellant. John S. Dawson, Atty. Gen., and L. S. Ferry (T. F. Doran, of counsel), for appellees. PER CURIAM. The defendant, Lindsay, appeals from a judgment assessing a fine for contempt in violating the injunction reviewed in State ex rel. v. Lindsay et al., 116 Pac. 207, just decided. The errors complained of relate to the admission of testimony and its sufficiency, and to the judgment. A witness residing in the vicinity of the cottages, referred to in the opinion in the case just cited, testified that he heard a woman screaming so loud that it awakened him, and that it continued for 10 minutes, "a very high screaming note. It was very grating on one's nerves. It was a cry such as would startle you." Four days afterwards he heard a woman screaming again. "It was that unearthly sound, a screeching and screaming. * I would call it unnatural; did not think a person could scream that loud. * * I was awaked and startled by it. It was worse than it was on the 5th. It continued 10 or 15 minutes after I got up." He was then asked: "Q. You say it was an unnatural cry. I will ask you to state whether or not in your opinion it was the cry of a person who was sane?" An objection being made, the court ruled: "He may give his opinion and the court can weigh it." The same objection was made to testimony of a like character given by other witnesses. If within the limitations of * For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 116 P.-14 the rule permitting unprofessional witnesses | tions. Code Civ. Proc. § 260 (Gen. St. 1909. who bave had an opportunity to observe to § 5854). We do not agree with the argument give their opinion of the sanity of another, of counsel that such security can only be this testimony should have been rejected. | required in cases when restitution of propIt is evident that no prejudice resulted from erty is ordered. The statute provides that hearing it. The witness had described the the party may be required to give security cries quite fully, and the court probably "to obey the injunction." accepted the answer as an attempt to give a further description to which it added little, if any, weight. Besides, it appeared from the testimony of Dr. Lindsay that he caused the person who made the outcries to be removed to the state hospital for the insane in a short time afterwards, doubtless because she was considered insane. Finally, it is insisted that the evidence failed to show any intentional violation of the injunction, and that it was insufficient to warrant the conviction. It is not necessary to review the evidence in detail, but, after reading it, we are satisfied that it was sufficient. For about 50 days after the injunction was granted patients were treated in the institution under Dr. Lindsay's care, who, as the evidence strongly tended to show, were insane. Their outcries alarmed and disturbed citizens residing in the vicinity, and, although complaints were made to the appellant, the disturbances still continued. While there was some conflict in the testimony, the findings of the district court are sustained by competent evidence. The judgment is affirmed. STATE v. JOHNSON. (85 Kan. 54) (Supreme Court of Kansas. June 10, 1911.) (Syllabus by the Court.) DUPLICITY. Objection is made to the testimony of another witness that screams and outcries from the cottages, which she described, made her nervous and disturbed her. This evidence is but slightly removed in principle, if at all, from that held admissible in Townsdin v. Nutt, 19 Kan. 282, where it appeared that a witness had testified to her state of health, suffering, and symptoms, and the testimony was held proper. Nervousness may be a physical as well as mental condition, but, if it be only the latter, the testimony is not excluded. 3 Wigmore on Ev. §§ 1963-1966, and notes. It is well settled that a person may testify to his own intention when it is a material matter. Bice v. Rogers, 52 Kan. 207, 34 Pac. 796. Intention is a mental condition, and so is fear, anger, 1. INDICTMENT AND INFORMATION (§ 125*)— excitement, despondency, joy, and the like, yet these emotions, even in the mind of another person, may be shown by the opinion of a witness who has had a sufficient opportunity to observe the appearance and conduct of such person. State v. Baldwin, 36 Kan. 1, 12 Pac. 318. That a mental condition may be shown by other testimony does not exclude that of the party himself. State v. Hetrick, 84 Kan. 157, 113 Pac. 383. Further objection is made to the testimony that the witness was disturbed by these screams on the ground that this was the very matter the court was called upon to decide. We do not so understand the situation. The question was whether the appellant had violated the injunction by keeping and treating persons of unsound mind in the cottages. Screams and outcries of apparently insane persons, under treatment there, tended to prove the issue; and this is a reason for receiving rather than excluding the evidence. The objection to testimony of the ultimate fact to be tried is interestingly treated in 3 Wigmore on Evidence, § 1921, and was referred to in Insurance Office v. Woolen-Mill Co., 72 Kan. 41, 82 Pac. 513, but, whatever its merits when applicable, it cannot be sustained here. An information is not bad for duplicity which charges the defendant with enticing, decoying, taking, and receiving a female child of ill fame and disorderly house for the purpose under the age of 18 years into a certain house of prostitution. [Ed. Note. For other cases, see Indictment and Information, Cent. Dig. §§ 334-400; Dec. Dig. § 125.*] 2. INDICTMENT AND INFORMATION ( 125*)— DUPLICITY. One who does all the things mentioned in one transaction commits only a single offense, and incurs but a single penalty, and it is proper to charge all conjunctively in a single count. and Information, Cent. Dig. §§ 334-400; Dec. [Ed. Note.-For other cases, see Indictment Dig. § 125.*] 3. PROSTITUTION (§ 2*) - DEFENSES - IGNORANCE OF AGE. It is no defense that defendant did not know the age of the girl, or that the girl repre sented herself to be more than 18 years old. [Ed. Note. For other cases, see Prostitution, Dec. Dig. § 2.*] Appeal from District Court, Saline County. Gladys Johnson was convicted of crime, and she appeals. Affirmed. C. W. Burch, B. I. Litowich, and T. L. Bond, for appellant. John S. Dawson, Atty. Gen., and Frank T. Knittle, for the State. * * * A further objection is to the judgment, JOHNSTON, C. J. [1, 2] In an informawhich, in addition to a fine, required the tion it was charged that the appellant "did appellant to give a bond as provided in artientice, decoy, take, and receive one cle 12 of the Civil Code relating to injunc- Bertha Cary, a female child under the age [3] Another contention is that error was committed by the court in charging the jury that a person receiving a female child into a of eighteen years, to wit, of the age of six- | place left no doubt as to the identity of the teen years, into a certain house of ill fame place into which the girl was taken and reand disorderly house for the purpose of pros- ceived by appellant, and indicated clearly titution," etc. A trial resulted in a convic-enough to her that only one place was involvtion, and appellant insists that the informa- ed in the prosecution. tion was bad because of duplicity and uncertainty, in that it charged more than one offense in one count, and that her motion to quash should have been sustained. The gen-house of ill fame for the purpose of prostitueral offense charged was getting a female child into a bawdy or disorderly house for the purpose of prostitution. Laws 1889, c. 104, § 2; Gen. St. 1909, § 5137. This may be done by enticing, decoying, placing, or receiving the child into the house named for the purpose mentioned. The person who does one of these things commits an offense, or, if all the things are done by him in one transaction, he commits only a single offense, and incurs but a single penalty. It was proper, therefore, to charge all of them conjunctively in a single count. It has been decided that: "Where an offense charged may be committed by two different means, and as several acts connected with and forming part of a general offense may be stated in a single count, its commission by both means may be charged in one count of the information, and proof of either will sustain the allegation." State v. Hewes, 60 Kan. 765, Syl. § 1, 57 Pac. 959. See, also, State v. Schweiter, 27 Kan. 499; State v. O'Neil, 51 Kan. 651, 33 Pac. 287, 24 L. R. A. 555; State v. Seeger, 65 Kan. 711, 70 Pac. 599; Fahnestock v. State, 102 Ind. 156, 1 N. E. 372; Bishop's New Crim. Proc. § 476; 22 Cyc. 380. The case of State v. Goodwin, 33 Kan. 538, 6 Pac. 899, is not in conflict with this holding. The offense condemned there was not the doing of an unlawful act for a particular purpose by different means, but it was the taking of a female child from parents or guardian for different and distinct purposes. The difference between prostitution and concubinage is pointed out, and a charge of taking a child for both purposes charges two distinct offenses, which, it was held, could not be joined in a single count. Nor is the information double in charging that the house to which the child was led and taken was a house of ill fame and a disorderly house. Only one house was in contemplation, and this is disclosed by the definite description of the house by its number and location. There is no repugnancy in the terms used, as places resorted to for prostitution are often designated as "houses of ill fame" and also as "disorderly houses." The latter term is the broader one, but they are frequently used synonymously and appear to have been so used in the statute and also in this information. The precise description of a single tion is bound to know the actual facts in respect to her age, and that it is no defense that she may have represented herself to be more than 18 years of age. While, as a general rule, criminal intention is an essential element of a crime and ignorance and mistake of a fact will ordinarily exempt one from criminal responsibility, there are a number of exceptions to this rule, and one of them is where the accused is engaged in an unlawful or immoral transaction the fact that he was mistaken as to the extent or effect of his wrongdoing or of some fact is no defense. Appellant was conducting an immoral business, and the practice of enticing, taking, and receiving girls into her house for the purpose of prostitution was immoral, regardless of the ages of the inmates. This principle was applied in State v. Jones, 16 Kan. 608, where the defendant was charged with having carnal knowledge of a girl under 18 years of age, and the point was made that there was no criminal responsibility unless the defendant knew the girl defiled was under 18 years of age. It was said that: "When a man commits what he knows to be an immoral act, he ought to be required to take the entire consequences of such act, although he may not have been fully advised as to all the circumstances connected with the act. In fact, when a man sets out willfully to do an immoral act, he ought to be bound to know all the circumstances connected with such act. Such a person is in no proper condition to plead innocence." 16 Kan. 611. The authorities are numerous that in statutory offenses of this character against girls of tender age actual knowledge of the age of the girl is not an essential element of the offense. Brown v. State (Del.) 74 Atl. 836, 25 L. R. A. (N. S.) 661; People v. Dolan, 96 Cal. 315, 31 Pac. 107; State v. Johnson, 115 Mo. 480, 22 S. W. 463; State of Iowa v. Ruhl, 8 Iowa, 447; Lawrence v. Commonwealth, 30 Grat. (Va.) 845; Commonwealth v. Murphy, 165 Mass. 66, 42 N. E. 504, 30 L. R. A. 734, 52 Am. St. Rep. 496; Heath v. State, 173 Ind. 296, 90 N. E. 310. There is some criticism of the instructions which do not appear to be justified nor to require special comment. The judgment is affirined. All the Justices concurring. (85 Kan. 167) RINGER v. ST. LOUIS & S. F. R. CO. (Supreme Court of Kansas. June 10, 1911.) (Syllabus by the Court.) MASTER AND SERVANT (§ 281*)-INJURIES TO SERVANT-CONTRIBUTORY NEGLIGENCE. An experienced section hand was injured while prying against a rail, by the end of his bar slipping where it rested upon an angle iron used as a fulcrum. In an action against the railroad company, based upon the alleged negligence of the defendant in furnishing him an unsafe tool, he testified that he and another hand were directed by their foreman to attempt to line the track, and to hurry up a little as a train was expected; that two bars were immediately available for the purpose, one sharpened in the shape of the letter "V," the other like a chisel; that previously he had always selected for his own use the former, because it did not slip so badly as the latter; that on the occasion in question he picked up one of the bars without noticing which it was, and did not learn until after his injury that it was that with the chisel-shaped end; that its slipping was caused by the point being worn off about half an inch -a condition that could have been ascertained at a glance. Held, that his use of the bar with out any examination whatever, in view of the circumstances stated, amounted to such negligence as to preclude his recovery. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 987-996; Dec. Dig. g 281.*] Appeal from District Court, Bourbon County. Action by W. M. Ringer against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded. and by prying against the rail endeavored to force it to one side, the other hand doing the same with the other bar. The end of the plaintiff's bar slipped upon the angle bar, and in consequence he fell, receiving the injury on account of which he sued. The end or point of the bar used by the plaintiff was worn off about half an inch, making it blunt, and giving it a chance to slip. The conduct of the defendant which is relied upon as negligence is the furnishing the plaintiff with a tool (the bar in question) which was unsafe by reason of the condition stated. There was no difficulty in seeing that the bar was blunt and worn off. The fact could be told at a glance. The bar used by the plaintiff was one which had been left on the side of a dump by an extra gang. They had had it across a bake oven, and it had become bent. The plaintiff something over a year before the accident took it to the shop and had it straightened, and, after that, it was used as one of the tools of the crew with which he worked. He never noticed that it was blunt and worn until after his injury. He knew the difference in the two bars, however, and almost always got the other bar if he could, selecting it because it would not slip so badly as the pinch bar, which he had never before used. On and took the first bar he got hold of. He the day of his injury. he was in a hurry did not pay any attention as to which bar he took; and he did not look at it, and did not know which he had until after he was R. R. Vermilion, for appellant. Keene & hurt. Gates, for appellee. "The Upon these facts we are constrained to hold that the plaintiff cannot recover. facts and the danger they presented were both within the comprehension of any ordinarily intelligent and prudent man, and were as completely within the knowledge and appreciation of the plaintiff as of his employer. MASON, J. W. M. Ringer recovered a judgment against the St. Louis & San Francisco Railroad Company on account of an injury received while in its employ, and the defendant appeals. The essential facts, as shown by the plaintiff's own testimony, may Therefore he cannot recover." be thus summarized: The plaintiff was a Gillaspie v. Iron Works Co., 76 Kan. 70, 90 section hand, and had been engaged in that Pac. 760. The plaintiff had as good an opwork for over seven years. He and another portunity as the foreman to know of the hand were at work under a foreman, who actual condition of the pinch bar, and his exdirected them to take bars and try to line perience enabled him to judge of the effect the track, to move it a little to one side, the wearing away of its point would have telling them to hurry up a little, and saying upon its slipping. True, he had no immedihe was looking for a train. There were two ate opportunity to select any bar other than bars on the hand car on which the tools one of the two upon the hand car, but the were carried. One of them, which the plain- defective bar had been for a long time a tiff described as a regular lining bar, was V- part of the outfit of tools with which his shaped at the point; that is, the end was crew worked and he had had abundant brought to an edge by being dressed equally chance to observe its condition. There was on opposite sides. The other, which the no emergency requiring instant action. The plaintiff called a "pinch bar," was shaped foreman's direction to hurry up a little, at the end like a chisel; the edge being form- given because a train was expected, did not ed by dressing one side only. The plaintiff prevent the plaintiff's taking note of which took the pinch bar, and with it cleared some bar he was using, and of its condition. earth from under a rail, placing there an The case seems clearly within the line of angle bar to serve as a fulcrum. He rested decisions of which that just cited is an illusthe end of the pinch bar upon the angle bar, | tration, holding that an employer is not lia |