jections to the proceedings referred to in the brief have been considered, but further comment is deemed unnecessary. from Edwards, and giving to the plaintiff a second lien for the amount of its judgment, and ordering a sale to satisfy these liens. The judgment is affirmed. All the Justices Yost appeals. concurring. (84 Kan. 495) FIRST NAT. BANK OF HAYS CITY v. (Supreme Court of Kansas. April 8, 1911.) (Syllabus by the Court.) [1] The first contention of the appellant is that the courts should have entered judgment for the defendants on the mandate. There was no order to enter judgment, but the case was remanded with directions to proceed further in accordance with the opinion. The district court and the parties at that time evidently understood the opinion 1. APPEAL AND ERROR (§§ 238, 1201, 1210*) to authorize a new trial, and this was the REMAND PROCEEDINGS BELOW AMEND- correct view. MENT-MOTION FOR JUDGMENT. At a former hearing of this case in this court a judgment was reversed and the cause remanded for further proceedings in accordance with the opinion. The district court then allowed amended pleadings to be filed and proceeded without objection to a new trial of the action. It is held (1) that this was proper; (2) that, as the defendant did not move for judgment on the mandate, or otherwise present the question, it is now too late to do so. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4673-4683, 4710; Dec. Dig. §§ 238, 1201, 1210.*] 2. MORTGAGES (§ 33*)-AGREEMENT TO RECONVEY EFFECT. The effect of a deed of conveyance of land and a simultaneous agreement to reconvey must be determined by the intent of the parties, as shown by their situation, the circumstances sur rounding the transaction, the terms of the instrument, and independent parol agreements not conflicting with such terms. [Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 67-82; Dec. Dig. § 33.*] Appeal from District Court, Ellis County. Action by the First National Bank of Hays City against Byron S. Edwards and others. Judgment for plaintiff, and defendants appeal. Affirmed. Cahn v. Tootle, 58 Kan. 260, 48 Pac. 919; McDonald v. Swisher, 60 Kan. 610, 57 Pac. 507. Besides no motion for judgment was made nor any objection taken to the filing of an amended petition, but a new answer was filed, and, after several continuances, the case was tried without raising the question. It is now too late to do so. It is also argued that the law of the case was settled in the former opinion holding that the instrument in question was not a mortgage, and that no subsequent proceedings in the district court could enlarge the controversy to include any other question. The question presented to this court at the former hearing is thus stated in the opinion: "Was the transaction between plaintiff in error and Edwards, as evidenced by the warranty deed, and bond for deed, a mortgage or a conditional sale?" The question was thus answered: "From an examination of the evidence found in the record, and a consideration of the legal effect of the contract between Edwards and plaintiff in error, we are persuaded that the evident intention of the parties to the transaction at the time it occurred was that the deed should Waters & Waters, for appellants. W. E. operate as a conveyance, and that no enSaum, for appellee. BENSON, J. This is a creditors' suit to subject the equity of Edwards and wife in a tract of land to the payment of a judgment, and is presented here for a second review. Yost v. Bank, 66 Kan. 605, 72 Pac. 209. forceable debt from Edwards to plaintiff in error should or did remain." It was also said in the opinion: "It is a settled rule of law that the intent of the parties to a deed absolute in form at the time it is executed and delivered must govern, and that the rights of the parties must be mutual." The case was decided at the former hearing upon the evidence contained in the record then presented. It must now be decided upon the abstracts in this appeal. The district court heard new evidence upon the amended pleadings, and in doing so did not violate the mandate of this court or transgress the rules of good practice. Conroy v. Perry, 26 Kan. 472; Duffitt & Ramsey v. Crozier, Judge, 30 Kan. 150, 1 Pac. 69; State v. Scott County, 61 Kan. 390, 59 Pac. 1055. In Cahn v. Tootle, supra, in considering the effect of an opinion delivered upon a former review of that case, it was said: "The decision of this court became the law of the case upon the state of facts disclosed in the record brought here, and the result was to set aside the judgment which had been previously enter On the 24th day of March, 1899, the Edwardses conveyed the land to Yost, who at the same time agreed to reconvey it to Edwards upon the payment of $750 and all notes due to Yost with interest thereon, if such payment should be made within two years. A copy of the agreement is contained in the former report of the case. After entering the mandate of this court reversing the former judgment for the plaintiff, the district court allowed an amended petition to be filed, to which the defendant Yost filed an answer. The second trial was in March, 1908, and afterwards findings were made and judgment entered for the plaintiff giving the defendant Yost a first lien upon the land for an amount found to be due to him For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes $200, which was credited on the judgment. and she was released. It is not contended that this "released the liability of Yost for ed. When the case was remanded to the district court for further proceedings, the parties litigant were restored to the same conditions in which they were before the trial | one-half of that judgment"; i. e., the judgwas had or judgment rendered." ment upon which this suit was brought. But it is not claimed that the appellant is liable upon that judgment. No lien is claimed upon his property, but only upon the property of the Edwardses, which is their equity in the land, after satisfying the appellant's claims in full; hence he is not injured by the release of Mrs. Edwards. Finally, it is argued that the lien of the appellee is lost because an execution was not [2] It is further contended that the court destroyed the legal effect of the deed upon insufficient evidence. In reviewing a similar case this court said: "Evidence of the situation of the parties, the circumstances surrounding the transaction, and of independent parol agreements not conflicting with the terms of the written instruments was competent, and we do not see that any other material testimony was received." McNa-issued upon its judgment for more than five mara v. Culver, 22 Kan. 661, 670. At the date of the deed and contract Edwards was indebted to Yost in the sum of about $545 upon notes held and retained by the appellant. A judgment for $750 was then a lien upon the land, to which the deed was made subject, and which the grantee assumed. In a few days afterward the appellant took an assignment of this judgment, but satisfaction was not entered. In June, 1900, the appellant entered into an agreement to sell the land to the Karlins (who were made defendants when the amended petition was filed), years. This action to enforce the lien of that judgment was commenced in less than one year after it was rendered, and has been pending ever since. An execution to preserve the vitality of the lien was not necessary. Treat v. Wilson, 65 Kan. 729, 70 Pac. 893. No error appears, and the judgment is affirmed. All the Justices concurring. (5 Okl. Cr. 334) HAVILL v. UNITED STATES. receiving a payment in September, 1900, (Criminal Court of Appeals of Oklahoma. April 10, 1911.) (Syllabus by the Court.) 1. CRIMINAL LAW (§§ 649, 1152*)-APPEAL the court over the objection of the defendant [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1512-1515, 3053-3057; Dec. Dig. §§ 649, 1152.*] 2. CRIMINAL LAW (§ 168*)-FORMER JEOPARDY -SUSPENSION OF TRIAL. Upon resuming the trial the defendant interposed a plea of former jeopardy. Held, that said plea was without merit, and was properly overruled. which he credited on the Edwards' notes, although he testified that all these notes had been satisfied by the conveyance. Another payment was also indorsed on these notes about the same time, and they were not surrendered or canceled. In an answer in this case filed in March, 1901, less than one year after the deed and agreement were made, the appellant pleaded the judgment which had been assigned to him, alleging that he had acquired it by purchase. He also pleaded the several promissory notes made by Edwards, claiming the amount unpaid thereon to be still due, and alleged that he had paid taxes on the property, and prayed that the sum of all these items should be adjudged a first lien upon the land in his favor. This pleading was verified by the appellant, and is competent evidence tending to support the appellee's claim. While the amended answer upon which the action was finally tried pleaded an absolute title, and denied that the Edwardses had any equity in the The right of a defendant indicted for a land, the first answer was still competent capital offense alleged to have been committed evidence. Arkansas City v. Payne, 80 Kan. in the Indian Territory prior to statehood to have delivered to him under section 1033, Sts. 353, 102 Pac. 781; Every v. Raines, 84 Kan. Ann. vol. 2, p. 344 (U. S. Comp. St. 1901, p. 560, 115 Pac. 114 (just decided). This answer 722), at least two days before the trial a list was not contained in the case made at the of the witnesses to be produced, is not violated former hearing nor brought into the record to the extent of constituting reversible error where the testimony of the witness was cumuin this court in any way. Without review-lative, and offered for the sole purpose of fixing ing the evidence further, it is sufficient to the time and place of the victim's death. say that it sustains the finding that the [Ed. Note. For other cases, see Criminal deed was intended as a mortgage, and should Law, Cent. Dig. $$ 3100-3102, 3107-3113; Dec. Dig. § 1166.*] have that effect only. Law, Cent. Dig. §§ 290-303; Dec. Dig. § 168.*] [Ed. Note.-For other cases, see Criminal 3. CRIMINAL LAW (§ 1166*)—APPEAL-HARMLESS ERROR. MAN The appellee's judgment, upon which this 4. CRIMINAL LAW (§ 97*) - Murder SLAUGHTER-LENGTH OF TIME. action is founded, was against Edwards and Murder or manslaughter is committed withwife. In January, 1902, Mrs. Edwards paid in the Central district of the Indian Territory For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes if the felonious act is committed there, al- of Joe Christopher. He further testified as though the death occurs in the state of Texas. follows: "A. I was standing in my front [Ed. Note. For other cases, see Criminal door, and Mr. Christopher had placed some Law, Cent. Dig. 88 177-191; Dec. Dig. 97.*] fishing poles nearly in front of my door. He Appeal from District Court, McCurtain See, also, 113 Pac. 991. Plaintiff in error, Jean Havill, was indicted in the United States court for the Central district of the Indian Territory at the September term, 1907. The indictment charged that the defendant on the 28th day of August, 1907, within said district, shot and killed one Joe Christopher. Upon a trial in the district court of McCurtain county, to which court the case was transferred after statehood, the jury by their verdict found the defendant guilty of manslaughter, and assessed his punishment at imprisonment for a period of one year and a fine of $50. The judgment and sentence was rendered and entered on October 3, 1908, from which judgment an appeal was perfected by filing in this court on January 7, 1909, a petition in error with case-made attached. The appeal was dismissed for failure to file proof of service of notices of appeal. 113 Pac. 991. This dismissal is set aside for the reason that the records of the clerk of this court show that proof of service was filed within the time in which the appeal could be perfected. was preparing to go fishing, and his little boy, eight, nine, or ten years old, was standing near his father's door, playing, when little Sally Havill, about eight or nine years old came along. She was playing, and in some way struck at Mr. Christopher's little boy, and he grabbed her and said that he was going to kiss her, and it made her mad, and she went off crying. Mr. Christopher made the little boy quit. In a short time after, 20, 30, or 40 minutes after, Jean Havill came down. I was standing in my front door, and he told Mr. Christopher that he had come down to whip his boy. He said that Joe Christopher would have to whip his boy, or he himself would do it. Christopher asked him why, and he said the way the boy had treated his little sister, and Mr. Christopher told him that he had made the boy stop and let her alone, and so on. Jean persisted in Christopher whipping the boy, and was swearing. Finally Joe told him to leave his place of business, and Jean said he did not have to go, still swearing. It seems to me that Joe went up to him as if to lead him off, that was what I thought, but I do not know what he meant to do, and my recollection is that Jean struck at him. When he did this, Joe grabbed him by the shoulders, or some way, and shoved him down against The evidence on the part of the state is in then let him up. When he got up, he said, the sidewalk. He shook him that way, and substance as follows: Dr. L. M. Ellis testified that he was a physician and surgeon practicing at Millerton; that he was called to see Joe Christopher on the evening of the 28th day of August, 1907, and found him suffering from a gunshot wound, the ball having entered on the side at the juncture of the seventh and eighth ribs, and passing through the body; that he saw Mr. Christopher the last time two days later; that he was in a very serious condition; that the wound was necessarily fatal. He further testified as follows: "Q. Do you know what the result of that wound was? A. Yes; it produced septic peritonitis. Q. What was the final result of that wound? A. Death." Recalled, he testified as follows: "Q. State to the jury what that conversation was? A. He came in and wanted to borrow a gun from me. I asked him what he wanted with it, and he told me to shoot Joe Christopher. Q. State as near as you can how long that was before the shooting took place. A. It was about half or three quarters of an hour. Q. He stated to you that he wanted the gun to kill Joe Christopher with? A. He said to 'shoot' him." 'Christopher, you are a man, and too much for me, but I'll do you,, I'll kill you for that.'" He further testified that the deceased was about 35 years old and would weigh about 150 or 160 pounds. Ben Miller, Jr., testified that about 6:30 he was walking home on the street that defendant lived on; that as he was passing a shot was fired. A. He further, testified as follows: "Q. Who fired the first shot? A. I could not say. Q. I'll ask you if Mr. Christopher fired that shot? A. No; he did not fire that shot. Q. You may proceed. When the first shot was fired, I think I walked down the street and remarked to Mr. Havill, the boy's father, to try and stop the trouble or some one would get hurt. Or course, at that time I was in the center of the street, and about that time some more shots were fired, and that is about all I could say about it. Q. Do you know who fired those shots after that? one shot fired after that. Q. Who fired that shot? A. Jean Havill. Q. Where was he at the time he fired that shot? A. At the corner of the house, as near as I can remember." A. Well, I saw D. Holden testified that he was a general W. R. Jones testified: "Q. I will ask you merchant, his place of business joining that if you saw Jean Havill prior to the time the either come out of the gate or was going out. Q. In doing so, was he going towards Havill or going away from him? A. Going away from him. Q. After that difficulty did you have a conversation with Jean Havill? A. I did. Q. Was that conversation between you and Jean Havill prior to the shooting? A. Yes. Q. What was that conversation? A. He wanted to borrow a gun from me. Q. Did he state why he wanted the gun? A. Yes. Q. What did he say he wanted the gun for? A. He said he wanted it to shoot Joe Christopher with." His cross-examination showed that he owned the gun that Christopher had at the time the shooting took place. first shot was fired? A. Yes, sir. Q. What state where Christopher was? A. He had was he doing? A. He was in his yard. Q. State to the jury where Jean went, if anywhere, before the first shot was fired. A. Well, I was standing in my home, and Christopher was sitting on his front steps, with his hand up here like this, in his breast, and his little boy came up the street, and Mr. Havill or Mrs. Havill said something to him. I did not understand what it was. Christopher jumped up and said, 'If you have anything to say to him, say it to me,' and went up to the fence, and talked, but I could not hear what was said. Jean was over in his yard and he came running to the gate with a pistol in his hand behind him, in his right hand, and stood there a little bit and listened to them, and the first thing I knew he had drawn and shot. Q. I'll ask you if Jean made any effort to borrow a pistol from you that evening? A. Yes. Q. Did he state what he wanted it for? A. No; he did not. He came over to my house late in the evening, and told me of the rucus he had had on the street, and asked me if I had a pistol. I told him I did, and he asked me to loan it to him, and I said no." Mrs. Lucy E. Foreman testified, in part, as follows: "Q. Did you live neighbor to Mr. Christopher and Mr. Havill? A. Yes, sir. I lived just across the street from them. Q. I'll ask you if you saw any part of the shooting scrape between them on the 28th day of August? A. I did. Q. In your own way please state just what you saw, and not what has been told you. A. I went to the door that evening to see where the chilCooper Watkins testified that he lived dren were and heard a racket— Q. What right across the street from the defendant kind of a racket? A. Talking and it looked and the deceased; that he came out of his like my children were down among them. In house and started down town and walked a few minutes I saw Jean go in the house. 10 or 15 steps, turned around, and looked, He came out in a minute or two, and then back; that "just, as I looked back, Jean directly fired the shot. Q. Did you see stepped to the fence, threw up his gun, and Jean's pistol before he fired? A. Yes. Q. shot twice." He further testified as follows: Can you state how close he was to Mr. "Q. Had any other pistol been fired prior to Christopher when he fired? A. I cannot say that? A. No. Q. Did you see Mr. Chris- exactly. Q. Can you estimate it? A. I cantopher at that time? A. Yes. Q. State what not say how close it was, probably about ten you saw Mr. Christopher doing, if anything. feet. Q. I will ask you if your attention A. When Jean fired, he jumped back and was directed to both Mr. Havill and Mr. jerked his gun from his bosom, and Jean ran Christopher at this particular time? A. Yes; inside his yard. He was about half way I think it was. Q. I will ask you if you from the gate to the house, and Christopher noticed the position of Mr. Christopher's shot twice. He ran around the house, and hands at that time? A. Mr. Christopher Christopher started outside the gate, and was standing at the fence, with one hand just as he got outside the gate Jean shot on the fence, and the other hand by his side. him again. Q. Was that all the shots that Q. What time did you see his hands in that were fired by Christopher? A. Yes. Q. He position? A. That was before the shooting. fired two shots after Jean Havill had fired Q. At the time the first shot was fired did two shots at him? A. Yes. Q. Did he you see the position his hands were in? A. have his gun in his hand at the time Jean Yes; that was like I said. Q. Can you state Havill fired the first two shots? A. No; I of your own knowledge who fired the first do not think that he did. He jumped back and second shots? A. I guess Jean fired the and jerked his gun from his bosom. Q. You first and second shots. Q. Do you know who saw him jerk his gun from his bosom after fired the two next shots? A. Yes; Mr. the first two shots were fired? A. Yes, sir. Christopher." Q. You are positive that Jean Havill fired two shots before Christopher fired any? A. Yes, sir." Phillip Johnson testified that he was associated with Joe Christopher in business at the time of his death; and further testified as follows: "Q. State to the jury what part of the shooting you saw? A. I saw one shot fired by Havill. Q. Where was Havill at the time this shot was fired? A. Behind the corner of the house he lived in. Q. Can you Here the record shows the following proceedings were had: "The State: It will be impossible for the state to proceed further in the trial of this case until the arrival of the train from Hugo this afternoon. The train gets here at 4:53, and we cannot proceed further until the arrival of the witness on that train. "The Defendant: The defendant being in court, we move the court that the trial of this case proceed. "The Court: I'll overrule the objection. "The Defendant: We except. "The Defendant: We now move the court that the defendant be discharged, there not having been offered any evidence sufficient to convict him, or to hold him further on this charge. death? A. Only that I saw he was shot. Q. How long did he live after he was shot? A. I was not there when he was shot. From the time I learned that he was shot he lived about 7 days, about 6 days. Q. Do you know where he died? A. I know it was in a hospital, but I have forgotten the name "The Court: The motion will be overruled. of it. It was in Paris, Tex. He was under "The Defendant: We except. "The Defendant: We now move the court to instruct the jury to return a verdict of not guilty against this defendant on account of insufficient evidence to convict him. "The Court: The court holds that it has power to suspend further proceedings in the trial for a reasonable time to enable absent witnesses, whether subpoenaed or not, to at tend the trial and give their evidence, and the court overrules the motion and the request of the defendant, and will defer further proceedings in the trial for a reasonable time to await the arrival of the wit nesses. "The Defendant: We except. "The Court: Let the record show that the jury during this time were not allowed to separate, but were kept in charge of their sworn bailiff, and were duly admonished not to talk about the case among themselves, or to allow others to do so in their presence." Before the taking of testimony was resumed on the same day the defendant filed a plea of former jeopardy, which plea was overruled by the court, and B. F. Christopher, a witness for the prosecution, being duly sworn, testified as follows: "Q. Please state your name? A. B. F. Christopher. Q. What is your age? A. 43 years. Q. Where do you live? A. At Cuthand, Texas, in Red River county. "Defendant: The defendant objects to any question that may be asked the witness on the ground that this case was suspended without the consent of the defendant, and, being resumed again, is a violation of his rights, and is placing him on trial twice before a jury for the same offense. Defendant objects on the further ground that he was not two entire days before the trial of this cause furnished with a list of the witnesses to be used by the prosecution in chief, showing the name and residence of the witness B. F. Christopher. the care of Dr. Hooks. Q. In Paris, Tex., or Paris, Okl.? A. Paris, Tex." The evidence on the part of the defendant is in substance as follows: J. W. Guest testified that he was present when the fist fight occurred; did not hear the defendant make any threats that he would kill the deceased; that this was at least an hour before the shooting took place. Doc. Guest testified that he saw the fist fight about 5 o'clock as he was driving by with a load of logs; that about 15 minutes later he met Mr. Christopher, and heard him say that, "I am going to get a Havill or two before supper"; that he went from there to the post office, and 20 minutes later met the defendant, and told him what Mr. Christopher had said; that just before the shooting he saw the parents of the defendant standing in their yard, and the deceased was coming from his door towards the fence that divides their dooryards, and that his hand was in his bosom; that the defendant came out of the door of his home where Mr. Christopher and his father was talking, and that the deceased pulled a gun from his bosom and they both shot; that he did not know who fired the first shot; that Mr. Christopher fired the first shot at the elder Havill and the second shot at the defendant, and then walked out in the middle of the street and fell down. Mrs. Ollie Robb testified that she witnessed the shooting, but could not say who fired the first shot; that the defendant was at her house a few minutes before with a pistol in his hand; and that she did not see a pistol in Mr. Christopher's hand before the first shot was fired. H. E. Robb testified that the first two shots were fired by the defendant and the deceased, but he could not say who fired the first shot. John Havill, father of the defendant, testified that the first shots were fired by the "The Court: Let the record so show. I'll deceased and the defendant almost together; overrule your objection. "Defendant: We except. that he and Mr. Christopher had no former trouble. Mrs. Havill, the mother of the defendant, testified that the first two shots were together. "Q. Are you acquainted with Jean Havill? A. I know him when I see him. I have seen him a few times. Q. You were acquainted with Joe Christopher? A. Yes; he The defendant testified: That he went was my brother, younger than me. Q. Where down to Mr. Christopher's place, and said is Joe now? A. He is dead. Q. Do you to him, "You ought to make your boy beknow that of your own personal knowledge? have himself, and make him stop annoying A. Yes; I seen him after he was dead. I seen him in the undertaker's office, and I looked at him at the grave where he was my sister. If you cannot tend to him, I will have to do so.' He ordered me away, ordered me to get off his sidewalk. I told |