REVERSIBLE The jury find there was no undue influence | 5. CRIMINAL LAW 1186(2) used, and that the signing of the agreements ERROR-STATUTE-VERDICT-VIEW. was not induced by nor affected by mistake. The plaintiff cannot escape his liability by such a flimsy excuse as that he thought he was only signing extension notes. We fail to find any evidence in the record upon which to support a finding of fraud, and, besides, the letters written by defendant to the plaintiff, covering a period of several years, in which he repeatedly expressed his satisfaction with the machinery he had purchased, his own admissions that in 1914, long after the settlements, he paid $1,000 on the indebtedness and extended and renewed his notes again, all indicate that the defense urged at the trial was an afterthought. The court should have sustained the motion for judgment, notwithstanding the general verdict. Since the jury found the special value of the property which the defendants retain by virtue of their delivery bond, there is nothing left to try, and the judgment will be reversed, and the cause remanded, with directions to enter judgment for plaintiff. All the Justices concurring. tain premises in relation to which testimony had The fact that a jury, sent out to inspect cerbeen given, viewed other premises on the way will not vitiate their verdict, unless it appears that a party suffered prejudice by the unauthorized view. 6. INDICTMENT AND INFORMATION 132(4) — ELECTION BETWEEN Counts. The information contained two counts, based on the same act of arson, one charging the burning of a building, and the other, the burning of a building and the property in it to defraud an insurer. The court ruled that only one conviction could be had under the information. Held, that no error was committed in refusing the motion of defendant to require the prosecutor to elect upon which count he would rely for a conviction. (103 Kan. 347) STATE v. HARRIS. (No. 21529.) (Supreme Court of Kansas. July 6, 1918. Rehearing Denied Oct. 18, 1918.) (Syllabus by the Court. 1. CRIMINAL LAW 539(2)—EVIDENCE-TESTIMONY OF DEFENDANT AT INQUISITION. The testimony of a witness, voluntarily given in an inquisition to determine the origin of a fire, held by the state fire marshal or county attorney under an act relating to protection against fire (Laws 1917, c. 198), may be used, so far as relevant, in a prosecution for arson subsequently brought against the witness. 2. CRIMINAL LAW 393(1)—SELF-CRIMINATING TESTIMONY INVOLUNTARY TESTIMONY. Such testimony is not deemed to be involuntary because given in response to a subpoena, or because a witness, refusing to appear or to testify, is subject to punishment, nor yet because of the statutory provision that no persons shall be present at the inquisition except the officers, and that the testimony taken shall not be disclosed to any one else. - 3. WITNESSES 277(2), 2932-SELF-INCRIM- FENSES. -- Testimony that other acts of arson were committed by defendant in order to obtain insurance, shortly before the setting of the fire under prosecution, may be admitted to prove the ingredient of intent of the crime charged. (Additional Syllabus by Editorial Staff.) 7. INDICTMENT AND INFORMATION COUNTS. 128 To meet the exigency of the proof, it was competent for the state to set forth the offense of burning a barn and its contents, with intent to defraud an insurer in different ways and in different counts. Appeal from District Court, Barton County. W. W. Harris was convicted of having burned a barn and its contents, with intent to defraud an insurance company, and he appeals. Affirmed. Osmond & Cole, of Great Bend, and J. G. Waters and J. C. Waters, both of Topeka, for appellant. S. W. Brewster, Atty. Gen., Clyde Allphin, of Great Bend, and S. N. Hawkes and John L. Hunt, both of Topeka, for the State. JOHNSTON, C. J. [1-3] The defendant was convicted of having. burned a barn and its contents with the intent to defraud an insurance company. The information contained two counts, one charging the defendant with burning a barn, and the other, with burning the building and the property in it for the purpose of defrauding the insurer. The burning with which the defendant is charged occurred in August, 1916. Prior to his arrest, and about March 15, 1917, a statutory investigation was held by the state fire marshal and the county attorney, in the latter's office, where the defendant was questioned as to his knowledge concerning the Origin of the fire, the questions and answers being reduced to writing. At the trial the defendant took the stand as a witness in his own behalf, and on cross-examination he was questioned as to the answers he had given at the inquisition. Objection was made to this testimony, and its admission is assigned as error. It is contended that the admission of the evidence practically made him a witness against himself, in violation of section 10 of the Bill of Rights. It is said that the statute under which the inquisition was held is invalid because it authorizes the compulsion of testimony without offering immunity from prosecution. Attention is called first to the provisions of section 8 of chapter 312 of the Laws of 1913 which provided for the subpoenaing of witnesses to testify to any facts they may know as to the origin of the fire, and which provided that the failure to appear and testify constituted a misdemeanor punishable by fine and imprisonment. It was also provided that no person should be present or should hear the testimony given except the fire marshal, or his chief deputy, the county attorney, and the justice of the peace, if the testimony was taken before the latter, and that the testimony so taken should not be disclosed to any one other than the officers named. Gen. Stat. 1915, § 10851. The statute in force when the inquisition was held, and which repealed the act of 1913, is chapter 198 of the Laws of 1917. It provides for the inquiry, the subpœnaing of witnesses, makes their refusal to be sworn or testify a misdemeanor, and gives the justice of the peace power to punish witnesses for contempt, substantially as did the earlier statute. Section 8 of the later act does not provide for the exclusion of all persons except the officers, nor that the evidence taken shall not be disclosed to others than the officers; but in section 11 of the act it is provided that the officers may exclude all persons during the inquiry, and makes it unlawful to disclose the testimony taken without the consent of the officers. The statute in force when the inquisition was held is the controlling one, but the terms of neither act afford any support for defendant's contention. The testimony given by the defendant at the inquisition, and about which inquiry was made on cross-examination, could hardly be regarded as material, even if he had claimed his privilege and it had been refused. When he took the stand in his own behalf the testimony took a wide scope, and covered, in a general way, his testimony given at the inquisition, and which was brought out on the cross-examination in this prosecution. If it be assumed, however, that the challenged testimony was material, it cannot be regarded as involuntary and violative of section 10 of the Bill of Rights. While the statute provides for the issuance of subpoenas and prescribes penalties for the refusal of witnesses to attend and give testimony, none of the requirements of the act prevented him from claiming the privilege of silence at the inquisition on the ground that his answers would criminate himself. He was not under arrest but had the status of a witness, and was free to claim this constitutional privilege as a witness would in an ordinary civil or criminal action. In civil cases a witness refusing to obey a subpoena or to be sworn and answer as a witness may be punished as for contempt, but this does not deprive him of the constitutional privilege to refuse to give testimony which would criminate himself, nor has it been suggested that the provision is unconstitutional because it does not make guaranty that a witness shall not be compelled to testify against himself. He is deemed to know the law and his rights in the premises, and hence it is not material that he did not have counsel present to advise him that he was not required to testify against himself, and his failure to claim his privilege was a waiver of it. He was no more under compulsion to give testimony against himself in the inquisition than is a witness at a coroner's inquest, and in State v. Taylor, 36 Kan. 329, 13 Pac. 550, it has been held that testimony, voluntarily given at such an inquest, may be subsequently received in behalf of the state in a subsequent prosecution against him, although he did not offer himself as a witness. Here the defendant became a witness at the trial, and his voluntary offer of himself in that capacity gave the state the right to cross-examine him on every fact about which he gave testimony in chief, where there was, as here, a proper relevancy between his statements at the inquisition and his testimony at the prosecution. To make the testimony admissible, it must, of course, have been voluntarily given; and, although some language used in the Taylor Case indicated that testimony given in obedience to a subpoena might not be voluntary, the question was subsequently examined, and it will be held that the Taylor Case "is not an authority that testimony given under a subpoena and without compul sion and duress is inadmissible." State v. Finch, 71 Kan. 793, 798, 81 Pac. 494. A witness subpoenaed to give testimony in a proceeding, who takes the stand and gives testimony without claiming his privilege, waives the right to object to the use of the statements and admissions so made, in a subsequent prosecution, and they are admissible so far as they are relevant to the case, and especially is this so if in the later proceeding he takes the witness stand in his own behalf. State v. Simmons, 78 Kan. 852, 98 Pac. 277. See, also, In re Burrows, Petitioner, 33 Kan. 675, 7 Pac. 148; State v. Sorter, 52 Kan. 531, 34 Pac. 1036; State v. Lewis, 56 Kan. 374, 43 Pac. 265; State v. Jack, 69 Kan. 387, 76 Pac. 911, 1 L. R. A. (N. S.) 167, 2 Ann. Cas. 171; State v. Inman, 70 Kan. 894, 79 Pac. 162; State v. Campbell, 73 Kan. 688, 85 Pac. 784, 9 L. R. A. (N. S.) 533, 9 Ann. Cas. 1203; People v. Molineux, 168 N. Y. 264, 61 N. E. 286, 62 L. R. A. 193; 3 Wigmore on Evidence, § 2276; note, 70 L. R. A. 33. [4] Another claim of error is the admission of evidence tending to show that the defendant had set fire to a stack of alfalfa upon which he had obtained insurance. This fire occurred about a month prior to the one for which the defendant was prosecuted. The purpose of the testimony was not to prove another offense, but to show the intent of the defendant in the commission of the offense charged and as an ingredient of that offense. There was testimony tending to show that de The testimony horses, mules, household goods, implements | resulted to the prejudice of the defendant. hay, flax, grain, and fodder, and the alfalfa hay was included in the policy with some of the property burned in the fire for which defendant was prosecuted. Defendant was charged and convicted of burning the barn and the property in it to defraud the insurer. Some testimony was offered tending to show that defendant claimed the loss on the alfalfa in excess of its value, and that other property insured was overvalued. The intent to defraud the insurer was an essential element of the crime charged, and any fact or circumstance tending to show the ingredient of intent is admissible, although it may also tend to prove the commission by the defendant of an offense other than the one alleged in the information. State v. Burns, 35 Kan. 387, 11 Pac. 161; State v. Franklin, 69 Kan. 798, 77 Pac. 588; State v. Briggs, 74 Kan. 377, 86 Pac. 447, 7 L. R. A. (N. S.) 278, 10 Ann. Cas. 904; State v. Hetrick, 84 Kan. 157, 113 Pac. 383, 34 L. R. A. (N. S.) 642; State v. Ball, 93 Kan. 606, 144 Pac. 1012; 12 Cyc. 408; note, 62 L. R. A. 193. [5] Another assignment of error is based on the conduct of the jury in making an inspection of the premises, under the direction of the court. The testimony in the case related to the premises upon which the burned barn had been located, and some of it to a barn of Mrs. Margaret Harris in Great Bend, where some of the insured property had been placed before the fire, and reference was also made by some of the witnesses to the Johnson place about a half mile from the location of the burned barn. The court directed the jury to inspect the premises upon which the barn had stood, and cautioned them as to their conduct in making the inspection. At the time, counsel for the defendant stated to the court, "We would like to have them go through the house." Counsel for the state then remarked, "We would like to have them look over all of the premises." The court responded, "They may do so." When the jury went out they inspected, not only the place where the barn had stood, but also viewed the inside of the barn in Great Bend and, besides, they had a view of the Johnson premises. There might be a question whether the direction of the court warranted an inspection of any premises other than those on which the barn had been located. The general language used is open to the interpretation that they were to view all premises to which the testimony related. The proximity of the Johnson place to the Harris place where the barn had been burned was such that the jury could readily have viewed the Johnson place while at the Harris place, and because of the testimony there would have been no error if the court had expressly directed the jury to view the Johnson place. Besides, no attempt was made to show that anything seen or done there could have affected their verdict or The inspection made in the barn in Great [6, 7] There is a further objection that the 1. The (103 Kan. 329) CAMPBELL v. BOARD OF COM'RS OF (Syllabus by the Court.) SO-SURRENDER OF ACCUSED-REBAIL LEASE OF SURETIES ON BAIL BOND. A person who is out on bail under a criminal charge in one county, and who is arrested by a constable from another county under a criminal charge filed in the latter county, cannot be taken from the custody of the constable, without his consent, by the sureties on the bail of the person charged, and be surrendered to the sheriff of the first county, so as to release such sureties. Under the circumstances mentioned in the first paragraph of this syllabus, after being released from the charge filed against him in the latter county, it is the duty of such person to appear at the proper time for trial in the first county, and it is the duty of the suretics on his 2. BAIL 75-APPEARANCE FOR TRIAL-Du- the sheriff of Reno county, and thereby reTY OF SURETIES. lease the $2,000 which had been deposited with the clerk of the district court of that county. If Sanders was surrendered, so that the sheriff had control and custody of him, and could have held him as against the constable, then the $2,000 was released. Before the surrender, or attempted surrender, Sanders had been arrested by the constable from Cowley county, and, under the findings of the jury, was continuously thereafter in the custody of that constable. At the time of his arrest by the constable, Sanders was out on bail. The sheriff had no right to take bail to produce him for that trial. TIONS. It is not error to refuse to submit to a jury special questions which would not, if answered, elicit any fact that could affect the judgment to be rendered. Appeal from District Court, Reno County. Action by Mrs. D. E. Campbell against the Board of County Commissioners of the Coun-him out of the custody of the constable. It ty of Reno and others. From a judgment against her and in favor of defendants for costs, plaintiff appeals. Affirmed. Lee Monroe, of Topeka, for appellant. E. T. Foote and H. E. Ramsey, both of Hutchinson, for appellees. follows that neither Sanders nor his sureties had any right to deprive the constable of the custody of Sanders by surrendering him to the sheriff. [2] 2. The plaintiff argues that, when Sanders was released by habeas corpus proceedings in Cowley county, it was the duty of the state to secure an order from the judge of the district court of that county remanding Sanders to the custody of the sheriff of Reno county. The answer to this argument is that Sanders was not in the custody of the sheriff of Reno county when he was arrested by the constable. The sheriff did not have cus MARSHALL, J. The plaintiff appeals from a judgment rendered against her and in favor of the defendant for costs. The plaintiff seeks to recover $2,000 which had been deposited with the clerk of the district court of Reno county by O. H. Dorr in lieu of bail for the appearance of one John San-tody of Sanders on the charge filed against ders, who was then charged with grand larceny. This is the second time that this action has been before this court. Campbell v. Reno County, 97 Kan. 68, 154 Pac. 257. There a judgment in favor of the defendants was reversed, and the cause was remanded for further proceedings. A detailed statement of the facts was made in the former opinion. On the trial from which the present appeal was taken, the jury answered special questions, a part of which are as follows: "Q. 5. Did the constable from Cowley county have Sanders in his custody at the time it is claimed a surrender was made? A. Yes. "Q. 6. Did the constable from Cowley county, at the time it is claimed a surrender was made, with a view of effecting a surrender, give Sanders his liberty and allow him to pass into the custody of Carl Duckworth through a surrender by O. H. Dorr? A. No. "Q. 7. Were the officers from Reno county holding Sanders all of the time he was in their custody, on the date in question, for the constable from Cowley county? A. Yes." Other than as modified by the special findings of the jury, the facts now presented are the same as those presented on the former hearing in this court. [1] 1. The first question presented by the plaintiff (who has succeeded to Dorr's rights) is: "Could Sanders be effectively surrendered so as to entitle Dorr to reclaim his deposit without the consent and concurrence of the Cowley county constable?" The plaintiff argues that the fact that John Sanders was in the custody of the constable from Cowley county could not and did not prevent Dorr from surrendering Sanders to him in Reno county after he had been released on bail. When he was released in Cowley county, he was discharged from the custody of the officers in that county, and was given his freedom to the same extent as he had enjoyed that freedom when he was taken into custody by the constable. When Sanders was released in Cowley county, he was again out on bail awaiting his trial in Reno county. The action against him in that county had been continued to the September term of the district court. When that action was called for trial, the state did not have Sanders in custody anywhere, and was not preventing his appearance, and was not preventing his sureties from producing him for trial. The authorities seem to be almost unanimous in holding that, after he was released in Cowley county, it was his duty to appear for trial in Reno county, and his sureties were then under obligation to produce him for that trial. Note in Ann. Cas. 1912C, 747. [3] 3. The plaintiff asked the court to submit to the jury the following questions: "(1) What, if anything, was said by O. H. Dorr in the office of the clerk of the district court of Reno county just prior to the drawing of the check sued on herein about surendering John Sanders to Carl Duckworth, deputy sher iff, and to whom were such words spoken? "(2) What, if anything, was said by John Sanders at the office of the clerk of the district court of Reno county, Kan., on the day the check sued on was drawn and shortly prior to such drawing on the subject of a surrender of said Sanders to Carl Duckworth, deputy sheriff, and to whom were such words spoken?" These questions were refused. There was land, designed to turn water into the Walnut no error in refusing them. Questions are river which escapes through a break in the submitted to establish facts-not evidence. natural river bank on plaintiff's land, and If these questions had been submitted, and which flows through the plaintiff's land in a had been answered, as the plaintiff evidently southerly direction onto the land of defendanticipated they would be answered, those ant McDougal, and there spreads out to answers would not have established any fact the south and east over the land of McDouon which judgment could have been render- gal and others. Part of this water turns ed, or which could have affected it. The an- westward into a channel of the Walnut river, swers might have been the basis for argu- which, after flowing westward through plainment concerning the truth of other facts tiff's land, makes a wide, irregular sweep which should have been considered in render- further west, and then curves back to the ing judgment. southeast, and enters the western edge of The judgment is affirmed. All the Justices McDougal's land. concurring. (103 Kan. 373) THOMPSON v. McDOUGAL et al. (Supreme Court of Kansas. July 6, 1918. (Syllabus by the Court.) 1. WATERS AND WATER COURSES MAINTENANCE OF LEVEE-INJUNCTION. There is a long, elliptical depression, locally called a bayou, extending north and south between the point where the river breaks through its bank on plaintiff's land and the point where the river returns from the west Re- to enter defendant's land. The east side of this depression or bayou furnishes a waterway for part of the water escaping from the river, which flows through Thompson's land onto McDougal's. At the southern base of this bayou or depression, the defendants have constructed a levee or dike, about 700 feet long and from a few inches to 30 inches high, the purpose of which is to turn all the water westward into the river, and to prevent it from flooding defendants' lands to the south and southeast. The levee will 61 Where plaintiff negligently permits a break in the natural bank of a river to occur and exist on her land, refuses to mend it, and obstinately and without excuse refuses to permit her defendant neighbors to mend it, her unreasonable and inequitable attitude is such that she is not entitled to an injunction to restrain the defendants, who suffer from flood waters escaping through such break, from maintaining a levee on their own land, which levee is designed only to turn back into the river at a lower point in its channel the volume of water which escapes through the break in times of high water, and which flows therefrom through plaintiff's land onto defendants' lands, although such levee may delay and retard the flow of such escaping water over plaintiff's land. (Additional Syllabus by Editorial Staff.) 2. WATERS AND WATER COURSES 80BREAK IN NATURAL RIVER BANK-RIGHT OF OTHER OWNERS. a Where plaintiff negligently permitted break in a natural river bank to occur and exist on her land, and obstinately refused to mend it or permit defendants to mend it, they might, under Gen. St. 1915, § 4051, drain and turn the water back into the river, a natural water course. Appeal from District Court, County. Plaintiff's grievance is that whereas, before defendants' levee was constructed, the water which comes through the break in the river bank would run off from her land in about 48 hours onto defendants' lands and do her little harm, now the same volume of Cowley water takes about 70 hours to drain off, and this delay ruins her crops. The trial court heard the evidence, and viewed the premises and made findings of fact, and denied the injunction. The most significant of the trial court's findings read: Action for injunction by Charlotte Thompson against D. D. McDougal and others. Judgment for defendants, denying the injunction, and plaintiff appeals. Affirmed. Jackson & Noble, of Winfield, for appellant. C. L. Swarts, of Arkansas City, and J. E. Torrance and O. W. Torrance, both of Winfield, for appellees. DAWSON, J. The plaintiff owns a farm in the Walnut river valley in Cowley county. The defendant McDougal owns the next farm to the south. The other defendants are neighbors south and southeast of McDougal. The plaintiff sued to enjoin the defendants from maintaining a levee or dike on McDougal's |