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fying Santa Fé agent at Scott City and section 2. Criminal law Ow736(1)-Whether prosecu. foreman."

tion brought in proper county held for jury. "(10) Did the plaintiff, or any one for him, The question whether a criminal prosecution notify the defendant of the danger to his land was brought in the proper county is held to by reason of the railroad embankment, and re have been one of fact for the determination of quest him to discontinue or remove or change the jury. the embankment that caused the danger? Yes."

3. Criminal law m535(2)-Rule that corpus The court on motion of the defendant set delicti not provable by defendant's extraju. aside these findings, and the contention is dicial admissions held inapplicable, where cornow made that inasmuch as a material find

roborated by documentary evidence. ing upon which the verdict was presumably

It is held that, if the corpus delicti canbased, or at all events may have been based, not be proved by extrajudicial admissions of the was set aside, a new trial should have been rative evidence as to prevent the application of

defendant, there was in this case such corrobogranted. Against this the plaintiff argues the rule. that, if the defendant had actual knowledge of the obstruction of the water course, there 4. Criminal law www395—Papers seized in arwas no occasion to give him notice; that

rest of defendant without warrant held admis

sible. there was evidence tending to show he had such actual knowledge; and that it should rendered inadmissible in evidence by the fact

The rule is applied that articles are not be presumed the jury found such to be the that they were wrongfully obtained. case. The difficulty with the plaintiff's argument is that, when the jury were called 5. Insurrection and sedition Ouw 2-Information

held sufficient to charge criminal syndicalism. upon to say what notice the defendant had that the embankment was a menace to the

An information is held sufficient to charge a property of the paintiff, they did not say he violation of the statute penalizing criminal syn

dicalism. had actual knowledge of it, but specifically that the Santa Fé agent at Scott City and 6. Insurrection and sedition Om2-Evidence section foreman had been notified, and that

held to sustain conviction for criminal syndi.

calism. the defendant bad been requested to change the embankment. In the absence of a special

The evidence is held to support a conviction

on a charge of criminal syndicalism. finding on the subject, the jury would be deemed to have found anything supported by 7. Constitutional law @ww90, 258–Insurrection the evidence and necessary to uphold the and sedition am 2-Criminal syndicalism stat. verdict. But with respect to a subject on

ute held not unconstitutional, as violating which a specific finding is made, the pre

freedom of speech and press; criminal syn

dicalism statute held not violative of due sumption must be rather that the jury rested

process clause, their verdict upon the fact which they did

Constitutional guaranties of freedom of find rather than on one which they might speech are not violated by a statute penalizing have found.

the advocacy of violence in bringing about gov"Where the court sets aside a finding which ernmental changes. may have been in part the basis of the general verdict, a new trial must be granted, unless the Appeal from District Court, Rice County ; remaining findings in themselves require a 0. R. Douglass, Judge, judgment.” Syl. 3, Goff v. Goff, 98 Kan. 201,

Harold B. Fiske was convicted of a viola158 P. 26.

tion of the statute defining criminal syndicalHere the remaining findings do not touch ism and penalizing its advocacy, and he apthe matter of the defendant's notice or knowl. peals. Affirmed. edge.

Charles L. Carroll, of Great Bend, and A. The judgment is reversed, and a new trial M. Harvey, Randal C. Harvey, and Paul L. is ordered solely upon the issue to which the Harvey, all of Topeka, for appellant. findings set aside relate.

C. B. Grillith, Atty. Gen., and Bronce All the Justices concurring.

Jackson, Co. Atty., of Lyons, for the State.

MASON, J. Harold B. Fiske appeals from

conviction upon a charge of violating the STATE v. FISKE. (No. 25333.)* statute which defines criminal syndicalism (Supreme Court of Kansas. Nov. 8, 1924.)

and penalizes its advocacy.

[1] 1. The offense is alleged to have been (Syllabus by the Court.)

committed on July 2, 1923. A term of court 1. Criminal law cm 593-Denial of motion for began September 4, 1923, on which day the

continuance for absence of counsel held not information was filed. On September 18, the abuse of discretion.

day the case was tried, the defendant filed a It is held that no abuse of discretion is motion for a continuance until a later date, shown in the overruling of a motion for a con- or until the next term, on the ground that tinuance.

his regular counsel, a resident of Chicago, Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*Rehearing denied December 13, 1924.

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(230 P.)
was unable to be present because of being of, of accomplishing or effecting any industrial or
counsel in cases pending in another court, political ends, change or revolution, or for
and his local attorney had not bad time to profit; * * is guilty of a felony." R. S.

prepare a proper defense. The overruling of
the motion is complained of. The matter was be the doctrine which advocates crime, physical

"Criminal syndicalism is hereby defined to
within the discretion of the court, and it can- violence, arson, destruction of property, sabo-
not be said that any abuse of discretion was tage, or other unlawful acts or methods, as a

means of accomplishing or effecting industrial
(2] 2. It is contended that the case should or political ends, or as a means of effecting in-
have been transferred to Reno county, under dustrial or political revolution, or for profit."
the statute authorizing such procedure where R. S. 21-301.
it develops that a prosecution is brought in

The material part of the information
a county not having jurisdiction. R. S. 62-

1442. The defendant testified that he took
two applications for membership in the I. and in the county of Rice and state of Kansas,

“That on or about the 2d day of July, 1923,
W. W. (upon which conduct the state relied

one Harold B. Fiske, then and there being, did for conviction) at Haven, in Reno county, on then and there unlawfully, feloniously, and June 30, saying, however, that he went from willfully, by word of mouth, and by publicly disthat county into Rice that day, and was in playing and circulating certain books and pamthe latter county all of July 1, the day the ap- phlets and written and printed matter, advoplication cards bore date. He gave an ex- cate, affirmatively suggest, and teach the duty, planation consistent with the applications necessity, propriety, and expediency of crime, having been made June 30, but its credibility there unlawfully, willfully, knowingly, and fe

criminal syndicalism, and sabotage, by then and was one of the issues of fact. There was also loniously persuading, inducing, and securing evidence that the sheriff of Rice county said Henry Lang. Earl Summers, and George Kelley to him in Geneseo, in that county, "Have you to sign an application for membership in a sogot any members here in this county?" and ciety known as the Agricultural Workers' Inthat he answered “Yes; two." There was dustrial Union No. 110, and by issuing to the other testimony to the same effect. The ques- said Henry Lang, Earl Summers, and George tion whether the applications were taken in Kelley membership cards, commonly known as Rice county was, therefore, a fair one for the the Red Card, in said Agricultural Workers'

Industrial Union No. 110, which said Agricul. jury.

tural Workers' Industrial Union No. 110 is a [3] 3. It is urged that there was no evi- branch of and component part of the Industrial dence of the defendant having induced any Workers of the World organization, said deone to join the Industrial Workers of the fendant then and there knowing that said or. World, except his own statements made out ganization unlawfully teaches, advocates, and of court, and that the corpus deliciti cannot affirmatively suggests that the working class he established by his extrajudicial admis- and the employing class have nothing in comsions. The rule, if otherwise sound and ap mon, and that there can be no peace so long as plicable, does not apply here because of the the working people, and the few who make up

hunger and want are found among millions of corroboration afforded by the signed cards in the employing class have all the good things of the possession of the defendant, which were life,' and that between these two classes a identified by him as applications for member- struggle must go on until the workers of the ship.

world organize a class, take possession of the [4] 4. Without a warrant the defendant earth and the machinery of production, and was arrested, and papers in his possession abolish the wage system, and that 'instead of were seized. The use of the papers in evi- the conservative motto, “A fair day's wages for

a fair day's work,” we must inscribe on our
dence is objected to on the ground of their il- banner the revolutionary watchword, "Aboli-
legal seizure. This court has adopted and tion of the wage system ‘By organizing in-
recently confirmed the rule that articles are dustrially, we are forming the structure of
not rendered inadmissible as evidence by the the new society within the shell of the old.'”
fact that they were wrongfully obtained.

The information charges the defendant in
State v. Johnson, 116 Kan. 179, 226 P. 251.
[5] 5. Error is assigned in the overruling

so many words with having done the things
of a motion to quash the information. The prohibited by the statute, and the question
statute under which the prosecution is scriptive of the manner in which the acts

presented is whether the specifications de-
brought, so far as now important, reads:

were done bear out the general terms of the
"Any person who, by word of mouth, or writ- accusation. It does not in set phrase allege
ing, advocates, affirmatively suggests or teaches that the association known as the Industrial
the duty, necessity, propriety or expediency of Workers of the World advocates, aflirmative-
crime, criminal syndicalism, or sabotage, or ly suggests, or teaches criminal syndicalism,
who shall advocate, affirmatively suggest or
teach the duty, necessity, propriety or expedi- but when read as a whole it clearly signifies
ency of doing any act of violence, the destruc- this, and also that the language quoted
tion of or damage to any property, the bodily (which the evidence shows to be taken
injury to any person or persons, or the com- the prea mble of the constitution of
mission of any crime or unlawful act as a means ganization) was employed to expr.

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* They

doctrine. We regard persuading and induc- property, but everybody will own property. ing others to join an association as one of This will be forced in economically. That is the methods of advocating, affirmatively sug- what I was teaching and suggesting when I took gesting, and teaching the doctrines in which these applications. I didn't come right out and it is based. An information has been held say that. The working class will enforce the insufficient which merely charges the defend people of the earth will make the laws; we will

laws when they are organized sufficiently. The ant in general terms with having advocated all belong to the working class. and suggested certain doctrines, the court came to me and asked me if I knew where there saying that, although words used by way of was an I. W. W. organizer, and I told them I advocacy, teaching, or suggestion need not be was one, and they asked me to explain it to set out with verbal accuracy, “the content of them, and I explained it to them. I explained the propagation should be fairly indicated." the principles of the organization as far as I

knew." State v. Breen, 110 Kan, 817, 205 P. 632. Here the method of propagation is specifical The language quoted from the I. W. W. prely pointed out-the inducing others to be amblė need not, in order to sustain the judgcome members of an organization devoted to ment, be held necessarily and as a matter of such progaganda. This reasonably advises law to advocate, teach, or even affirmatively the defendant of the nature of the charge. suggest physical violence as a means of acIt is not necessary that the pleader should complishing industrial or political ends. It go further and set out the arguments that is open to that interpretation and is capable were used to attain the end sought.

of use to convey that meaning. The con[6] 6. The defendant asserts that there struction to be placed upon it in the connecwas no evidence to support the verdict of tion in which it was employed was submitted guilty. He testified that he had secured the | as an issue of fact by an instruction that no applications of Henry Lang, Earl Summers, conviction could be had unless from the eviand George Kelley, and issued them member- dence and beyond a reasonable doubt the ship cards in the I. W. W., saying, however, jury were satisfied (among other things) that that this was not done in Rice county--a the organization commonly called the I. W. matter which has already been discussed. W. is one that teaches criminal syndicalism He continued :

as defined in the statute. The jury were not “I understand what the Industrial Workers of required to accept the defendant's testimony the World organization teaches. I understand as a candid and accurate statement. There that it teaches, advocates, and states that the was room for them to find, as their verdict working class and the employing class have shows they did, that the equivocal language nothing in common, and that there can be no of the preamble, and of the defendant in peace so long as a few, who make up the em-explaining it to his prospects, was employed ploying class, have all of the good things of life.

to convey and did convey the sinister meanI understand that between these two classes a struggle must go on until the workers of the ing attributed to it by the state. world organize as a class, take possession of the

[7] 7. A final contention is that the statute earth and the machinery of production, and violates the provision of the state Constituabolish the wage system. I understand that, tion that “the liberty of the press shall be instead of the conservative motto, 'A fair day's | inviolate; and all persons may freely speak, wages for a fair day's work, we must inscribe write or publish their sentiments on all sub

our banner the revolutionary watchword, jects, being responsible for the abuse of such *Abolition of the wage system.' I understand right” (Bill of Rights, $ 11), and (because of that by organizing industrially we are forming the structure of the new society within the shell invading the fundamental rights sought to of the old. We are organizing with industrial be thereby protected) also is obnoxious to the unions to take care of the labor situation in this due process of law clause of the Fourteenth country and in the world. That means that Amendment to the federal Constitution. Statthere won't be any capital, and that means that utes penalizing the advocacy of violence in everybody--that one will be just as well off as bringing about governmental changes do not the other fellow, at such time as it can be done, violate constitutional guaranty of freedom of and means that everybody will work. That is speech. Their wisdom and justice are matwhat it means when it says. “By organizing in-ters for the determination of the Legislature. dustrially we are forming the structure of the new society within the shell of the old. The Cases holding valid acts of the same type as new society will be a new organization-new

that here involved are collected in recent control-control of industry. By 'in the shell of notes. 1 A. L. R. 336; 20 A. L. R. 1535, 1543. the old' I mean it will be forward, and instead The judgment is affirmed. of breaking up, we will not destroy anything, All the Justices concurring, except HARhut we will build them. We will not take over | VEY, J., who did not sit.



(230 P.)

identical. They were consolidated for trial HAMILTON v. EMPIRE GAS & FUEL CO. in the court below and here, and may be SHRIVER v. SAME. SHRIVER et al. v. treated as one. SAME. (No. 25171.)*

The petition, after alleging that the plain(Supreme Court of Kansas. Nov. 8, 1924.) tiff is the owner of the land, that a lease

was executed, a copy of which is attached (Syllabus by the Court.)

and that defendant by proper assignment is Mines and minerals uw 78(1)-Lessor cannot now the owner and holder of the lease, re

dictate method of making oil marketable and cites: of determining amount produced, if accurate,

“(5) The defendant, the Empire Gas & Fuel efficient, and fair.

Company, has drilled a number of wells on the In a suit by the lessor of an oil and gas land covered by said oil and gas lease and said lease to enjoin the lessee from using a certain wells are producing large quantities of oil. method of treating the oil produced so as to That one of the conditions of said lease is that make it marketable, and of determining the there shall be delivered to the plaintiff free of amount of oil produced and saved from the cost in pipe line a one-eighth part of all oil leased premises, and to require the lessee to produced and saved from said premises. The use a method which is more expensive and condition being in words and figures as follows: wasteful than the method used, which suit is " "To deliver to the credit of the first party, predicated upon the following clause in the his heirs or assigns, free of cost, in the pipe lease, which obligates the lessee: “To deliver line to which it may connect its wells, the to the credit of the first party, his heirs or as- equal one-eighth part of all oil produced and signs, free of cost, in the pipe line to which it saved from the leased premises.' may connect its wells, the equal one-eighth “(6) The defendant, Empire Gas & Fuel part of all oil produced and saved from the Company, erected and maintained said leased premises." It is held that the lessor is leased premises a treating or steaming plant interested primarily in results; that he should for the purpose of treating the oil obtained not be permitted to dictate the method em from the wells drilled thereon, and removing ployed by the lessee so long as that method is therefrom water and basic sediment before accurate, efficient, and fair to him, and, if by turning the same into the pipe line connecthe method used he receives credit and pay- tions, and said treating or steaming plants ment for one-eighth of all the oil produced and were operated for the purpose of ascertaining saved from the leased premises, he has no with some degree of accuracy the amount of complaint.

merchantable oil produced from wells and in

conformity with conditions of lease aforesaid Appeal from District Court, Butler Coun- put in pipe line connecting with wells the merty; Allison T. Ayres, Judge.

chantable oil out of which the plaintiff was to

receive one-eighth of oil produced and saved Three suits by J. E. Hamilton, and by J. L. from the premises. That said testing or steamShriver, and by Nancy E. Shriver, and others, ing plants were fairly well designed to test the against the Empire Gas & Fuel Company, production of merchantable oil, and the plainconsolidated for trial, and for purposes of tiffs received up to the 1st of August, 1920, appeal. From a judgment for plaintiff's, de- bis checks for one-eighth the royalty of oil fendant appeals. Reversed, with directions. turned into pipe line connecting with the wells

from the treating and steaming plant. H. 0. Caster, Hayes McCoy, and S. N. (7) On or about the 1st of August, 1920, Hawkes, all of Bartlesville, Okl., for appel- the defendant, the Empire Gas & Fuel Comlant.

pany, breached the terms and conditions of its John Madden, John Madden, Jr., Louis contract of lease, as aforesaid, closed down Nadel, and J. M. Burriss, all of Wichita, for and abandoned the use of its treating and appellees.

steaming plant and resorted to another and different method, known as the 'thief test.'

The 'thief' being an instrument with a cup or HARVEY, J. This is a suit by lessors of trap which is let down into the bottom of tank certain oil and gas leases to enjoin the lessee and brings up a cup of oil, then to the center, from using the “thief test" on oil in tanks and last to the top. These tests are ground on the leased premises, and from turning oil out, and an estimate is made therefrom of the under such test into pipe lines for treatment amount of oil in each tank. By the method of elsewhere, and for a decree requiring defend- duced in his one-eighth royalty; the amount of

estimating the plaintiff has been greatly reant to use the heating and steaming plants his one-eighth of the production falling immeon the leased premises before turning the oil diately to a lesser amount which varies and is into the pipe lines. It was tried to the court, uncertain, and hence cannot be placed with any who made findings of fact and conclusions degree of accuracy, but as a total for each of law. Judgment, the nature of which will month the one-eighth interest of the plaintiff be more fully set out, was rendered for plain- has been diminished one-sixth without there tiffs, and the defendant has appealed.

being any diminution in the production of the There are three cases against the same de wells on said lease, the decrease being due to

the inaccurate tests and estimates hereinbefore fendant, involving three leases owned by de- pleaded, as the 'thief test.' In violation of the fendant parties, but the allegations as to conditions of its contract of lease as aforesaid injuries sustained and the relief sought are the said defendant turned the unsteamed oil mw For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*Rehearing denied December 13, 1924.

into its own pipe line and carried the same to, ing said defendants from pursuing their pres-
the Boyer Tank Farm, in Butler county, Kan., ent method of measuring, testing, and treating
where it treats said oil by some method un-oil, and a mandatory order and decree compel-
known to the plaintiff, but well known to the ling them to use their heating and steaming
defendant, thereby placing the plaintiff in a sit- plant on said leased premises for treating the
uation where he can by no system of gauging oil before turning into pipe line and for the
keep an account of the amount of oil produced further relief of an accounting for the loss sus-
from wells and pumped into tanks and from tained."
tanks turned into connecting pipe lines. By
this method the defendant has failed to ac-

The answer contained a general denial,
count for plaintiff's royalty, and placed it be- and averred that with the oil produced from
yond the reach of plaintiff to know or ascer- the leases there is commingled a large per-
tain his rights in the premises. Of the amount centage of water which varies in amount,
of oil produced or turned into connecting pipe which it is necessary to separate from the
lines as a result of this method there has been oil in order to render it marketable; that
a great loss in pipe line runs. There is no way defendant, without cost to plaintiff, has at
that the plaintiff can gauge his interest or pro- all times during the operation of the lease
tect the same, to the plaintiff's irreparable loss
and damage.

used such methods as were from time to time "(8) That during the months of August and approved by those skilled in the business, and September, and up to and including October has at all times delivered to plaintiff a 11, 1920, there was in the tanks of said leased greater amount of credit for oil than plainpremises pumped from the wells thereon 28,- tiff was entitled to under the terms of the 223 barrels of oil as shown by the gauge of lease; that prior to March, 1919, defendant said tanks, as plaintiff is informed and believes. in separating the water from the oil used a That during said time the defendant, Empire

that Gas & Fuel Company, has only accounted to steaming process at great expense; the plaintiff for 24,810.36 barrels in said tanks since that time defendant has used a de turned into pipe lines, thereby showing an ac- hydrating plant in the neighborhood of plaintual loss of 3,412.64 barrels of oil in which the tiff's land, and from then to some time in plaintiff has a one-eighth royalty interest, August, 1920, in order to determine the perthereby entailing upon the plaintiff a loss of centage of water in the oil, defendant made $1,493.03, which would be his one-eighth of use of fair and average samples of the mixsaid oil as royalty at $3.50 per barrel, the ture of oil and water taken from the wells, standard price of said oil as published by the and used a process known as the "centrifuge" Prairie Oil & Gas Company.

"(9) Plaintiff is informed and believes and or grinding out process, which was during 80 alleges the fact to be that the methods that time the ordinary and approved process adopted by the defendant in the testing, esti- used in the oil field for that purpose, but mating, and treating of oil taken from the land that this process did not show the full of the plaintiff is unjust, inaccurate, and prob- amount of water or basic sediment comlematical in results. The methods adopted by mingled with the oil, and, therefore, during the defendant to produce the result as afore- that time defendant had given credit to said and consequent loss to the plaintiff of $1,- plaintiff for more than the share of oil due 493.03 in two months are not known to the plaintiff under the terms of his lease. Both plaintiff, and hence cannot be described with plaintiff and defendant asked for an accountaccuracy, but are well known to the defendant, ing, but this feature of the case has not been its agents, and employees. There has been no appreciable diminution in production of oil tried out, and need not be further noted. from wells.' The treating and steaming plants

After trial, during which the court, in aderected by the defendant on the leased premis- dition to hearing the evidence, made personal es of the plaintiff are standing with full equip- examination of the leases, the manner of takment for treating oil produced from the wells ing samples, the dehydrating plant, and the thereon. In the use of said treating and process of determining the amount of water steaming plants the plaintiff was able to keep in the oil it made findings of fact that the fairly accurate account of the amount of oil plaintiffs were the owners of the land deproduced, treated, and turned into pipe line.scribed, and had executed oil and gas leases The abandonment of said treating plants by the in the ordinary form, containing the clause defendant leaves the plaintiff where he can keep no account or do anything to guard his set out in plaintiffs' petition. interest or protect his one-eighth royalty, and "(5) The above-described lands are situated is compelled to receive without any knowledge in what is known as the El Dorado district. of amount the figures furnished by the defend. At the time said leases were given there was ant, which figures are based upon the inaccu- no development for or production of oil in that rate tests as hereinbefore pleaded. They re- district. sult in an actual loss to the plaintiff, as here "(6) The defendant became the owner of all inbefore stated, of $1,493.03, his share in the of said leases in the year 1916, and commenced way of royalty in the 3,412.64 barrels of oil to develop all of them in the summer of 1917, lost and unaccounted for. The plaintiff has no very soon after development first started in the adequate remedy at law to protect him in dam- El Dorado field. age. The methods used as aforesaid are con "(7) During the early development in the El tinuing, and the plaintiff will suffer great and Dorado field there was very little water comirreparable loss, unless he can have the benefit mingled with the oil as it was produced. It of the equitable remedy of injunction, enjoin- was comparatively free from impurities, and

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