next preceding the selection of jurors for that year.

[Ed. Note.-For cases in point, see vol. 31, Cent. Dig. Jury, § 584.]

2. WITNESSES-CROSS-EXAMINATION OF OWN

WITNESS.

The extent to which a party may be permitted to cross-examine his own witness who proves to be hostile, rests generally on the sound discretion of the court. Upon the review the record shows no abuse of discretion.

[Ed. Note.-For cases in point, see vol. 50, Cent. Dig. Witnesses, §§ 848, 923, 931-937.] 3. RAPE EVIDENCE.

Evidence examined and held sufficient to support a conviction.

(Syllabus by the Court.)

Appeal from District Court, Thomas County; Chas. W. Smith, Judge.

William H. Hamilton was convicted of crime, and appeals. Affirmed.

Appellant was charged with the crime of statutory rape upon the person of Clara Hamilton, a child of 15 years of age. At the June term, 1905, of the district court of Thomas county he was convicted, and appeals.

The prosecuting witness is his own daughter.

She swore to the complaint, but, upon the trial when first called as a witness, denied the truth of her former statements, and asserted that the appellant was not guilty. The trial court permitted the attorney for the state to cross-examine her at great length, and upon persisting in her denial of the truth of the charges, her further examination was postponed until another witness was called, and she was, in the presence of the jury and at the request of the state's attorney, placed temporarily in a bailiff's custody. Recalled as a witness, she still maintained that the charges against her father were false. Several times during the examination the court admonished her to tell the truth and finally, upon the suggestion of the attorney for the state, placed her in custody of the sheriff, and adjourned the trial until the next day. the same time, the court expressed the belief that the child was under the influence of others, and threatened to have a prosecution begun against her for perjury, and against others for subornation of perjury. The order placing her in custody of the sheriff and these last suggestions were made after the jury had retired. The following morning she was again placed on the stand, and examined very briefly. Aside from two preliminary questions, she was asked only the following questions in direct examination: "Q. I will ask you if at any time within the last two years, in Colby, Thomas county, Kansas, the defendant William H. Hamilton, has had sexual intercourse with you? A. Yes, sir." Upon cross-examination she admitted that she had written a letter to her father immediately after his arrest, containing the following statement: "Mr. Pratt and Lawyer Taylor came up to our house, and frightened me into making a false statement. I did not realize what I was saying. I was so fright

ened, I did not know what I told them." She stated, however, that this letter was written at the dictation of her grandmother, Mrs. James, who is the mother of the appellant. She was asked by the court why she had not testified to these facts when on the witness stand the day before, and her answer was that Mrs. James and Mr. James had both said to her that if she told, she "would have to go, too." The sheriff testified to a conversation with appellant soon after the arrest was made, in substance, as follows: "He asked me if I thought he was guilty. I told him everything showed that he was guilty. He said: 'Well, my God, you don't think I am, do you?' 'Well,' I says, 'It looks that way, Billie.' 'Well,' he says, 'I am just standing under this to shield somebody else,'" and that he stated when the right time came he would tell that. No further testimony was offered by the state. The defendant offered no testimony except his own in which he stated he was not guilty, but rather than see his daughter punished for perjury, he was willing to plead guilty.

Benj. F. Endres and Clement L. Wilson, for appellant. C. C. Coleman, Atty. Gen., and Arch. L. Taylor, for the State.

PORTER, J. (after stating the facts). Error is predicated upon the action of the court in these matters and in permitting the extended cross-examination of this witness, in ordering her into custody of the sheriff overnight, and in permitting her to testify after

ward.

The proceedings were very unusual. The witness was 15 years of age, intelligent, and had reached the seventh grade in the public schools. She had sworn to the complaint charging her father with this monstrous crime, and then denied that there was a syllable of truth in the charge. Here was a situation where the exception to the rule that a party shall not be permitted to crossexamine his own witness clearly applied. The extent to which the cross-examination under such circumstances should be permitted, can, as a rule, best be left to the sound discretion of the trial court. State v. Spidle, 42 Kan. 441, 22 Pac. 620. That court had every opportunity to observe the manner and appearance of the witness, the surrounding circumstances under which her examination in chief was conducted, the evident surprise of the prosecution by her changed attitude as a witness, and was, therefore, better able than this court to judge the extent to which, in furtherance of justice to the public, and with due regard for the rights of the appellant, the state should be permitted to cross-examine its own witness. The remarks and suggestions of the trial court during the examination, and in the presence of the jury, though somewhat irregular, were only the expressions of what must naturally have occurred to the mind of every juror, and we are not

able to say, under all the circumstances, that the appellant was prejudiced thereby. If, as the court undoubtedly believed, this child, under the influence of her grandmother and other members of the family who would naturally desire the truth concealed, had been suborned and cowed under threats into swearing falsely to conceal the disgrace, and protect her father from punishment, and the reluctant truth was finally obtained from her, can it be said that the substantial rights of the appellant were thereby prejudiced?

The testimony against the appellant was far from strong. No reason is apparent why the state should have been content with resting its case almost alone upon the unsupported statement of a single witness, or why no attempt was made to prove by that witness some of the circumstances connected with the offense. If the intimations made so frequently by the county attorney when the prosecuting witness was first examined were true. the testimony of the physician and others, who, it was claimed, knew certain facts quite relevant to the case, should have been offered. The trial court, however,

observed the manner and appearance of the witnesses, and, with a knowledge of all the circumstances connected with the trial, approved the verdict of the jury; and we should not disturb that verdict except for substantial reasons which a careful review of the record fails to disclose. State v. Hunter. 50 Kan. 302-306, 32 Pac. 37; State v. Mumford, 70 Kan. 858-860, 79 Pac. 669. We have examined the instructions given, and find no error. Several of the jurors stated on their examination that they had formed or expressed opinions as to the guilt of appellant, but, upon rigid inquiry by the court, each admitted that the so-called opinion was an impression gained from rumor, and that he could and would give the appellant a fair trial, and be guided solely by the evidence. We see no error in overruling these challenges.

At first glance a more difficult question arises in reference to three other jurors who testified on their voir dire that they had been called as jurors in a case in the district court within a year preceding the term of court at which the appellant was tried.

Section 1, c. 54, Gen. St. 1905, reads as follows: "The trustee of each organized township, and the mayor of any city not included in any corporate limits of any township, shall at his office during the month of April of each year make a list of persons to serve as jurors for the ensuing year, as hereinafter provided."

Section 3 of the same chapter reads: "In making such selections, each person who shall have served as a juror in any capacity at any term of court during the year next preceding such selection shall be excluded from the list of jurors for the then ensuing year: and if any such persons shall be selected or drawn, it shall be the duty of the

court to which such jurors shall be summoned to strike the names of such persons from the list of jurors; and it shall be good cause of challenge to any juror that such juror shall have served as a juror in any court of record during the year next preceding such selection; and no juror called or summoned, who shall have so served during such preceding year, shall draw any pay for more than one day during the term of court to which he shall be so summoned; and a list of the persons so selected shall be, immediately after such selection, certified by the officers making such selection to the county clerk of such county."

The words "during the year next preceding such selection" clearly mean the preceding year, counting back from the time of the making of the list, which was in April, 1904. Appellant's trial occurred at the June term, 1905. The jurors challenged for this cause stated that they had served as jurors in a certain fire case within the past year, which might have been true, and still not render them subject to the challenge if that trial occurred, as it possibly might, at an adjourned term held after April, 1904. When the ruling complained of was made the court suggested that later the record showing the facts could be looked into, but, with the record within easy reach, no attempt was made to introduce it. The presumption is in favor of the competency of the juror, and the burden of showing that good cause exists for the challenge rests upon the one who makes the challenge. In the absence of this showing the challenges to these jurors were properly overruled.

It is claimed that the jury were permitted to separate without being first admonished. The record shows that at the noon adjournment the court said to the jury; "Be very careful not to hear anything about the case. Don't permit any one to talk in your presence about the case. Don't hear anything about the case, whatever." The court at a previous adjournment had admonished the jury not to talk about the case among themselves, and while the admonition quoted is not in the words of the statute, as is always the better and safer practice, still, in connection with the previous admonition, it was not prejudicial error. At another time, during a slight intermission, the jury were told that they were under the previous admonition of the court which, under the circumstances, was sufficient. No objection was offered by appellant to the sufficiency of either of these admonitions, nor was the attention of the court challenged to these alleged errors by the motion for a new trial. The jury may have been during the entire intermission within the courtroom for all that appears by the record. State v. Stackhouse, 24 Kan. 445, 446; State v. McKinney, 31 Kan. 570, 3 Pac. 356. The court sentenced appellant to be confined in the state penitentiary at hard la

bor for a period to be determined by the "pardoning board" of said penitentiary instead of "prison board." This was an irregularity which, if it were of sufficient importance, might require his being sent back to be resentenced; but it is not raised by the motion for a new trial nor by the motion in arrest of judgment, and would in no event authorize a reversal of the judgment.

The judgment will be affirmed. All the Justices concurring.

(74 Kan. 424)

BRANDON et al. v. ARD. (Supreme Court of Kansas. Oct. 6, 1906. Rehearing Denied Nov. 10, 1906.)

1. JUDGMENT-RES JUDICATA.

A judgment against the United States in an action to cancel a patent to a railroad company will not bar a homestead settler from pleading his homestead settlement as a defense in an action in ejectment brought against him by a grantee of the railroad company.

[Ed. Note.-For cases in point, see vol. 30, Cent. Dig. Judgment, §§ 1193, 1196.]

2. PUBLIC LANDS-WITHDRAWAL FROM SETTLEMENT.

Where, in a grant of land to a railroad company, there is expressly reserved from its operation all lands to which the right of preemption or homestead settlement has attached when the line is definitely fixed, the land commissioner, in the absence of express direction by Congress, and prior to the definite location of the line, has no authority to issue an order withdrawing from pre-emption or homestead settlement any of such lands, and such an order, if issued, is nugatory.

[Ed. Note. For cases in point, see vol. 41, Cent. Dig. Public Lands, §§ 247, 248.]

(Syllabus by the Court.)

Error from District Court, Allen County; Travis Morse, Judge, Pro Tem.

Action by Alexander Brandon against Newton L. Ard. On the death of Brandon, Lucinda Brandon and others, as executors and heirs at law, are made plaintiffs. Judgment or defendant, and plaintiffs bring error. firmed.

This was an action for the possession of the north of the northeast 14 of section 11, township 26, range 20, in Allen county, brought by Alexander Brandon against Newton Ard. Since the action was commenced, Alexander Brandon died, and it has been revived in the name of his executors and heirs. The defendant recovered judgment, and the plaintiffs bring the case here for review.

The plaintiffs claim title by a deed from the Missouri, Kansas & Texas Railway Company, which held by patent from the Governor of Kansas dated May 19, 1873, issued by virtue of a grant of land by the United States to the state of Kansas dated March 3, 1863, to aid in the construction of railroads and telegraphs. The act provided that there shall be granted every alternate section of land designated by odd numbers for 10 sections in width on each side in aid of the construction of the following roads, and each branch there

of: First. A railroad and telegraph from the city of Leavenworth, Kan., by way of Lawrence and the Ohio City crossing of the Osage river, to the southern line of the state, in the direction of Galveston Bay, in Texas, with a branch from Lawrence, by the valley of the Wakarusa river, to a point on the Atchison, Topeka & Santa Fé Railroad where that road intersects the Neosho river. Second. A railroad from the city of Atchison, Kan., via Topeka, to the western line of the state, in the direction of Ft. Union and Santa Fé, N. M., with a branch where the latter crosses the Neosho, down said Neosho valley to the point where the road first named (the Leavenworth road) enters the Neosho valley. This grant contains the following limitations: "But in case it shall appear that the United States have, when the lines or routes of said road and branches are definitely fixed, sold any section or any part thereof, granted, as aforesaid, or that the right of pre-emption or homestead settlement has attached to the same, or that the same has been reserved by the United States for any purpose whatever. then it shall be the duty of the Secretary of the Interior to cause to be selected, for the purposes aforesaid, from the public lands of the United States nearest to tiers of sections above specified, so much land, in alternate sections or parts of sections, designated by odd numbers, as shall be equal to such lands as the United States have sold, reserved, or otherwise appropriated, or to which the rights of pre-emption or homestead settlements have attached, as aforesaid; which lands, thus indicated by odd numbers and selected by direction of the Secretary of the Interior, as aforesaid, shall be held by the state of Kansas for the use and purpose aforesaid: provided, that the land to be so selected shall in no case be located further than 20 miles from the lines of said road and branches: provided, further, that the lands hereby granted for and on account of said roads and branches severally shall be exclusively applied in the construction of the same, and for no other purpose whatever, and shall be disposed of only as the work progresses through the same, as in this act hereinafter provided." Act March 3, 1863, 12 Stat. 772, c. 98, § 1. The corporation known as the Atchison, Topeka & Santa Fé Railroad Company acquired the right to the lands designated under the second subdivision of this act, and all rights granted it by this act for the construction of its branch from a point at or near Ft. Riley down the Neosho valley to where the Leavenworth road might enter the Neosho valley were assigned to and became vested in the Missouri, Kansas & Texas Railroad Company March 3, 1866, and this assignment was ratified by the Legislature of Kansas February 26, 1867. Following the passage of this act of 1863, and on March 19, 1863, the commissioner of the land office, without being advised by the filing of a plat of general location of the road, and solely up

on the request of the senators and representatives in Congress from Kansas, transmitted to the register and receiver of the local land office at Humboldt, Kan., a letter of withdrawal, and a diagram showing the probable lines of the Leavenworth, Lawrence & Galveston Railroad. The letter of withdrawal contains the following instruction: "You will therefore understand from the foregoing: (1) That the odd sections within the limits of said railroads and branches are absolutely withdrawn from sale, pre-emption, or homestead entry, except so far as inceptive rights may have accrued prior to the receipt by you of this order." The land in controversy is a portion of the lands described in the diagram. In 1867 the Leavenworth, Lawrence & Galveston filed its map of definite location. It was then found that the land in question was outside its place limits, but within its indemnity limits. The Missouri, Kansas & Texas Railroad definitely located its line in December, 1866, and the land in controversy fell without its place limits but within its indemnity limits. The land was therefore outside the place limits, but within the overlapping indemnity limits, of both roads. This land was selected by the Missouri, Kansas & Texas Railroad as indemnity lands, and was patented to it by the patent hereinbefore referred to, and was conveyed to Alexander Brandon by the railroad company. The west 1⁄2 of the southeast 4 of section 2, township 26, range 20, which adjoins the tract in controversy, was selected by the Leavenworth, Lawrence & Galveston Railroad as indemnity lands, and was patented to it November 3, 1873. This company sold this land to Charles H. Pratt.

Ard claims title to both tracts under a homestead settlement made June, 1866. possessed all the necessary qualifications to homestead 160 acres of land of the public domain. In June, 1866, he settled and made substantial improvements on this land for the purpose and with the intent of perfecting a title thereto as his homestead. On July 14, 1866, he prepared his homestead application in due form and the requisite affidavits, and went to the local land office at Humboldt with his witnesses, and presented his application and affidavits, and tendered the entry fee to the proper officers, and requested that he be allowed to enter the two tracts as a homestead. His application was rejected by the officer in charge, on the ground that the lands had been withdrawn from pre-emption and homestead entry by the instructions contained in the letter of the commissioner of the land office of March 19, 1863.

Mr. Ard returned to the land, and has been in the actual occupancy thereof since his original entry, always claiming the right to enter it as a homestead. He subsequently made several applications to the local land officers for permission to enter this land as a homestead, but each time was denied the right for the same reasons assigned on his

first application, until December 21, 1896, when he was permitted to make homestead entry, upon which a patent was issued December 17, 1900. In June, 1887, separate actions in ejectment were commenced in the district court of Allen county by Pratt and Brandon against Ard for the possession of these lands, Pratt claiming the land in section 2 under his purchase from the L. L. & G. Railroad, and Brandon claiming the tract now in controversy under his purchase from the Missouri, Kansas & Texas Railroad. The causes were tried in the district court, and Ard was defeated. He prosecuted separate proceedings in error to this court, where both judgments were affirmed. Ard v. Pratt, 43 Kan. 419, 23 Pac. 646, and Ard v. Brandon, 43 Kan. 425, 23 Pac. 648. Ard appealed both cases to the Supreme Court of the United States, where the judgments of the district court, as well as the judgments of this court, were set aside, and the causes remanded for retrial. Ard v. Brandon and Ard v. Pratt. 156 U. S. 537, 15 Sup. Ct. 406, 39 L. Ed. 524. Afterwards, and while they were awaiting a retrial in the district court of Allen county, the United States, under an act of Congress passed March 3, 1887, requiring the immediate adjustment by the Secretary of the Interior, in accordance with the decisions of the Supreme Court of the United States, of all unadjusted land grants made by Congress to aid in the construction of railroads (24 Stat. 556, c. 376 [U. S. Comp. St. 1901, p. 1595]), commenced an action in the United States Circuit Court for the District of Kansas against the Missouri, Kansas & Texas Railroad and other railroad companies to cancel their patents to certain even-numbered sections of land in Allen county. Subsequently the bill was amended, and certain odd-numbered sections within the indemnity limits were included, and all parties holding such lands under deed from the railroads appear to have been made defendants. By the amended bill the land in question was inIcluded in the action, and Alexander Brandon was made a defendant. In this action the United States was unsuccessful, and judgment was rendered against it. Ard was not a party to that action, and was not represented, unless it can be said, as claimed by the plaintiffs in error, that he was a party by representation; that is, that the United States was the representative of all persons claiming adversely to the Missouri, Kansas & Texas Railroad.

L. W. Keplinger, for plaintiffs in error. Ewing, Gard & Gard, for defendant in error.

GREENE, J. (after stating the facts). Plaintiffs in error contend, first, that the judgment against the United States in the case of United States v. Missouri, K. & T. Railroad et al., 141 U. S. 358, 12 Sup. Ct. 13, 35 L. Ed. 766, decided in the Circuit Court of the United States, was a full and complete

judicial determination that Ard had acquired no equity in the real estate by his settlement and several attempts to homestead it, and that such judgment is a complete bar against his contentions in this action; second, that the letter of the land commissioner of March 19, 1863, withdrawing all the odd-numbered sections for 10 miles on each side of what he supposed would be the line of the Leavenworth, Lawrence & Galveston Railroad was a segregation and setting apart of this land for this railroad company, a withdrawal from market of all odd-numbered sections indicated in the diagram, and that the lands thus withdrawn remained permanently exempt from pre-emption entry and homestead settlement.

We do not agree with the first contention. The action of the United States against the several railroad companies was not commenced, as suggested by plaintiffs in error, by the procurement of Ard. It was brought by the Attorney General of the United States at the request of the Secretary of the Interior, under the act of Congress of March 3, 1887, authorizing and directing the Secretary of the Interior "to immediately adjust, in accordance with the decisions of the Supreme Court, each of the railroad land grants made by Congress to aid in the construction of railroads and heretofor unadjusted." 24 Stat. 556, c. 376, § 1 [U. S. Comp. St. 1901, p. 1595]. Ard by settling on this land and attempting to perfect a homestead title thereto did not thereby become a ward of the government. He did not

constitute the United States his trustee to litigate for him his equitable rights to the land upon which he had settled, nor did it become such trustee by operation of law. Ard was not made a party to the action. He had no control or supervision over any issue in the case. He was asking nothing at the hands of the court, and, so far as anything appears to this court no person was asking anything against him. The act did not authorize the Secretary of the Interior to institute proceedings in equity to settle controversies arising between individual claimants to these lands, nor to adjust disputes between the railroad companies and persons claiming adversely to them. The action was one to determine the right of the railroad companies to hold the legal title to these lands as against the United States. The questions involved were those arising exclusively between the United States on the one side, and these corporations and persons claiming the legal title to the lands under them, on the other side. Ard was not made a party, because his equitable claim to the land, as against the railroad company or its grantee, was not involved, and could not be determined. The United States was not interested in the litigation pending between Ard and Brandon involving their equitable rights to any particular tract of land. In Ard v.

Brandon, 156 U. S. 537, 15 Sup. Ct. 406, 39 L. Ed. 524; it was urged that, under the authorities of the cases of Kansas City & R. R. Co. v. Attorney General, 118 U. S. 682, 7 Sup. Ct. 66, 30 L. Ed. 281, and United States v. Missouri, K. & T. Ry. Co., 141 U. S. 358, 12 Sup. Ct. 13, 35 L. Ed. 766, sustaining the regularity and validity of cer tain patents to the Missouri, Kansas & Texas Railroad Company, an individual could not thereafter contest nor question the right of the company to any lands to which it held patent. In the opinion, referring to these cases, the court said: "No adjudication against the government in a suit by it to set aside a patent estops an individual not a party thereto from thereafter setting up his equitable rights in the land for which the patent was issued."

It is also contended that, if it should be held that Ard was not a party by representation to the suit in United States v. Missouri, K. & T. R. Co. et al., and is not for that reason concluded, that he should, nevertheless, by reason of his presence and participation in that action, be held to be estopped by that judgment. We have no doubt of the correctness of the rule that one not a party to the record may, by his conduct in directing, managing, and actually participating in the trial, be estopped by the judgment therein as to any question actually litigated and decided. However, the vital question in this case is the effect of the order of withdrawal, and we do not find that this question is tendered by the bill, nor litigated in the action, nor determined by the judgment.

Plaintiff's second contention, that the diagram and order of withdrawal of March 19, 1863, had the effect to segregate all the lands included in the diagram from the public domain, and set it apart for the exclusive use of railroad companies, is not well founded, nor was such the understanding of the Land Department, as is conclusively shown by the order from that department to the local land office of April 20, 1866, after the Leavenworth, Lawrence & Galveston had filed its map of definite location, directing the withdrawal of certain lands for its benefit. In this letter the commissioner says: "Also, where settlement may have been made on an odd-numbered section outside of the ten and within the twenty mile limits prior to the receipt by you of this order of withdrawal, the settler will be protected in his rights by reason of such prior settlement." Regardless of any interpretation subsequently placed upon the order of withdrawal of March 19, 1863, by the land commissioner, and regardless, also, of what such order contained, the grant itself reserved from its operation all of the public domain which had, prior to the definite location of any line of road, been sold by the United States or otherwise reserved, and all the lands to which, prior to such definite location, the right of pre-emption or homestead settlement had attached; and lands