fying Santa Fé agent at Scott City and section | 2. Criminal law ~736(1)—Whether prosecuforeman." "(10) Did the plaintiff, or any one for him, notify the defendant of the danger to his land by reason of the railroad embankment, and request him to discontinue or remove or change the embankment that caused the danger? Yes." The court on motion of the defendant set aside these findings, and the contention is now made that inasmuch as a material finding upon which the verdict was presumably based, or at all events may have been based, was set aside, a new trial should have been granted. Against this the plaintiff argues that, if the defendant had actual knowledge of the obstruction of the water course, there was no occasion to give him notice; that there was evidence tending to show he had such actual knowledge; and that it should be presumed the jury found such to be the case. The difficulty with the plaintiff's argument is that, when the jury were called upon to say what notice the defendant had that the embankment was a menace to the property of the paintiff, they did not say he had actual knowledge of it, but specifically that the Santa Fé agent at Scott City and section foreman had been notified, and that the defendant had been requested to change the embankment. In the absence of a special finding on the subject, the jury would be deemed to have found anything supported by the evidence and necessary to uphold the verdict. But with respect to a subject on which a specific finding is made, the presumption must be rather that the jury rested their verdict upon the fact which they did find rather than on one which they might have found. "Where the court sets aside a finding which may have been in part the basis of the general verdict, a new trial must be granted, unless the remaining findings in themselves require a judgment." Syl. 3, Goff v. Goff, 98 Kan. 201, 158 P. 26. tion brought in proper county held for jury. The question whether a criminal prosecution was brought in the proper county is held to have been one of fact for the determination of the jury. 3. Criminal law 535 (2)-Rule that corpus delicti not provable by defendant's extrajudicial admissions held inapplicable, where corroborated by documentary evidence. It is held that, if the corpus delicti cannot be proved by extrajudicial admissions of the rative evidence as to prevent the application of defendant, there was in this case such corrobothe rule. 6. Insurrection and sedition 2-Evidence held to sustain conviction for criminal syndicalism. The evidence is held to support a conviction on a charge of criminal syndicalism. 7. Constitutional law 90, 258-Insurrection and sedition 2-Criminal syndicalism statute held not unconstitutional, as violating freedom of speech and press; criminal syndicalism statute held not violative of due process clause. Constitutional guaranties of freedom of speech are not violated by a statute penalizing the advocacy of violence in bringing about governmental changes. Appeal from District Court, Rice County; C. R. Douglass, Judge. Harold B. Fiske was convicted of a violation of the statute defining criminal syndicalism and penalizing its advocacy, and he apAffirmed. Here the remaining findings do not touch the matter of the defendant's notice or knowl-peals. edge. The judgment is reversed, and a new trial is ordered solely upon the issue to which the findings set aside relate. All the Justices concurring. STATE v. FISKE. (No. 25333.)* (Supreme Court of Kansas. Nov. 8, 1924.) (Syllabus by the Court.) 1. Criminal law 593-Denial of motion for continuance for absence of counsel held not abuse of discretion. Charles L. Carroll, of Great Bend, and A. M. Harvey, Randal C. Harvey, and Paul L. Harvey, all of Topeka, for appellant. C. B. Griffith, Atty. Gen., and Bronce Jackson, Co. Atty., of Lyons, for the State. MASON, J. Harold B. Fiske appeals from conviction upon a charge of violating the statute which defines criminal syndicalism and penalizes its advocacy. [1] 1. The offense is alleged to have been committed on July 2, 1923. A term of court began September 4, 1923, on which day the information was filed. On September 18, the day the case was tried, the defendant filed a motion for a continuance until a later date, or until the next term, on the ground that his regular counsel, a resident of Chicago, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes It is held that no abuse of discretion is shown in the overruling of a motion for a continuance. was unable to be present because of being of counsel in cases pending in another court, and his local attorney had not had time to prepare a proper defense. The overruling of the motion is complained of. The matter was within the discretion of the court, and it cannot be said that any abuse of discretion was shown. [2] 2. It is contended that the case should have been transferred to Reno county, under the statute authorizing such procedure where it develops that a prosecution is brought in a county not having jurisdiction. R. S. 621442. The defendant testified that he took two applications for membership in the I. of accomplishing or effecting any industrial or * # "Criminal syndicalism is hereby defined to be the doctrine which advocates crime, physical violence, arson, destruction of property, sabotage, or other unlawful acts or methods, as a means of accomplishing or effecting industrial or political ends, or as a means of effecting industrial or political revolution, or for profit." R. S. 21-301. The material part of the information reads: "That on or about the 2d day of July, 1923, and in the county of Rice and state of Kansas, one Harold B. Fiske, then and there being, did then and there unlawfully, feloniously. and willfully, by word of mouth, and by publicly displaying and circulating certain books and pamphlets and written and printed matter, advocate, affirmatively suggest, and teach the duty, necessity, propriety, and expediency of crime, criminal syndicalism, and sabotage, by then and there unlawfully, willfully, knowingly, and feloniously persuading, inducing, and securing Henry Lang, Earl Summers, and George Kelley to sign an application for membership in a society known as the Agricultural Workers' Industrial Union No. 110, and by issuing to the said Henry Lang, Earl Summers, and George Kelley membership cards, commonly known as the Red Card, in said Agricultural Workers' Industrial Union No. 110, which said Agricultural Workers' Industrial Union No. 110 is a branch of and component part of the Industrial Workers of the World organization, said defendant then and there knowing that said organization unlawfully teaches, advocates, and affirmatively suggests that the working class and the employing class have nothing in common, and that there can be no peace so long as hunger and want are found among millions of the working people, and the few who make up the employing class have all the good things of life,' and that 'between these two classes a struggle must go on until the workers of the 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 the conservative motto, "A fair day's wages for were seized. The use of the papers in evia fair day's work," we must inscribe on our dence is objected to on the ground of their il-banner the revolutionary watchword, "Abolilegal seizure. This court has adopted and recently confirmed the rule that articles are not rendered inadmissible as evidence by the fact that they were wrongfully obtained. State v. Johnson, 116 Kan. 179, 226 P. 251. [5] 5. Error is assigned in the overruling of a motion to quash the information. The statute under which the prosecution is brought, so far as now important, reads: [3] 3. It is urged that there was no evidence of the defendant having induced any one to join the Industrial Workers of the World, except his own statements made out of court, and that the corpus deliciti cannot be established by his extrajudicial admissions. The rule, if otherwise sound and applicable, does not apply here because of the corroboration afforded by the signed cards in the possession of the defendant, which were identified by him as applications for membership. 'By organizing intion of the wage system dustrially, we are forming the structure of the new society within the shell of the old.'" The information charges the defendant in so many words with having done the things prohibited by the statute, and the question presented is whether the specifications de scriptive of the manner in which the acts were done bear out the general terms of the accusation. It does not in set phrase allege that the association known as the Industrial Workers of the World advocates, affirmative "Any person who, by word of mouth, or writing, advocates, affirmatively suggests or teaches the duty, necessity, propriety or expediency of crime, criminal syndicalism, or sabotage, or ly suggests, or teaches criminal syndicalism, who shall advocate, affirmatively suggest or teach the duty, necessity, propriety or expediency of doing any act of violence, the destruction of or damage to any property, the bodily injury to any person or persons, or the commission of any crime or unlawful act as a means but when read as a whole it clearly signifies this, and also that the language quoted (which the evidence shows to be taken from the preamble of the constitution of that organization) was employed to express that This will be forced in economically. That is doctrine. We regard persuading and induc- | property, but everybody will own property. ing others to join an association as one of the methods of advocating, affirmatively suggesting, and teaching the doctrines in which it is based. An information has been held insufficient which merely charges the defendant in general terms with having advocated and suggested certain doctrines, the court saying that, although words used by way of advocacy, teaching, or suggestion need not be set out with verbal accuracy, "the content of the propagation should be fairly indicated." State v. Breen, 110 Kan. 817, 205 P. 632. Here the method of propagation is specifically pointed out-the inducing others to become members of an organization devoted to such progaganda. This reasonably advises the defendant of the nature of the charge. It is not necessary that the pleader should go further and set out the arguments that were used to attain the end sought. knew." The language quoted from the I. W. W. preamble need not, in order to sustain the judgment, be held necessarily and as a matter of law to advocate, teach, or even affirmatively suggest physical violence as a means of accomplishing industrial or political ends. It is open to that interpretation and is capable 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: "I understand what the Industrial Workers of the World organization teaches. I understand that it teaches, advocates, and states that the working class and the employing class have nothing in common, and that there can be no peace so long as a few, who make up the employing class, have all of the good things of life. I understand that between these two classes a struggle must go on until the workers of the world organize as a class, take possession of the earth and the machinery of production, and abolish the wage system. I understand that, instead of the conservative motto, 'A fair day's wages for a fair day's work,' we must inscribe on our banner the revolutionary watchword, 'Abolition of the wage system.' I understand that by organizing industrially we are forming the structure of the new society within the shell of the old. We are organizing with industrial unions to take care of the labor situation in this country and in the world. That means that there won't be any capital, and that means that everybody—that one will be just as well off as the other fellow, at such time as it can be done, and means that everybody will work. That is what it means when it says, 'By organizing industrially we are forming the structure of the new society within the shell of the old.' The new society will be a new organization-new control-control of industry. By 'in the shell of the old' I mean it will be forward, and instead of breaking up, we will not destroy anything, but we will build them. We will not take over as defined in the statute. The jury were not required to accept the defendant's testimony as a candid and accurate statement. There was room for them to find, as their verdict shows they did, that the equivocal language of the preamble, and of the defendant in explaining it to his prospects, was employed to convey and did convey the sinister meaning attributed to it by the state. [7] 7. A final contention is that the statute violates the provision of the state Constitution that "the liberty of the press shall be inviolate; and all persons may freely speak, write or publish their sentiments on all subjects, being responsible for the abuse of such right" (Bill of Rights, § 11), and (because of invading the fundamental rights sought to be thereby protected) also is obnoxious to the due process of law clause of the Fourteenth Amendment to the federal Constitution. Statutes penalizing the advocacy of violence in bringing about governmental changes do not violate constitutional guaranty of freedom of speech. Their wisdom and justice are matters for the determination of the Legislature. Cases holding valid acts of the same type as that here involved are collected in recent notes. 1 A. L. R. 336; 20 A. L. R. 1535, 1543. The judgment is affirmed. All the Justices concurring, except HARVEY, J., who did not sit. (230 P.) HAMILTON v. EMPIRE GAS & FUEL CO. (Supreme Court of Kansas. Nov. 8, 1924.) (Syllabus by the Court.) Mines and minerals 78(1)-Lessor cannot dictate method of making oil marketable and of determining amount produced, if accurate, efficient, and fair. In a suit by the lessor of an oil and gas lease to enjoin the lessee from using a certain method of treating the oil produced so as to make it marketable, and of determining the amount of oil produced and saved from the leased premises, and to require the lessee to use a method which is more expensive and wasteful than the method used, which suit is predicated upon the following clause in the lease, which obligates the lessee: "To deliver to the credit of the first party, his heirs or assigns, free of cost, in the pipe line to which it may connect its wells, the equal one-eighth part of all oil produced and saved from the leased premises." It is held that the lessor is interested primarily in results; that he should not be permitted to dictate the method employed by the lessee so long as that method is accurate, efficient, and fair to him, and, if by the method used he receives credit and payment for one-eighth of all the oil produced and saved from the leased premises, he has no complaint. identical. They were consolidated for trial in the court below and here, and may be treated as one. The petition, after alleging that the plaintiff is the owner of the land, that a lease was executed, a copy of which is attached and that defendant by proper assignment is now the owner and holder of the lease, recites: "(5) The defendant, the Empire Gas & Fuel Company, has drilled a number of wells on the land covered by said oil and gas lease and said wells are producing large quantities of oil. That one of the conditions of said lease is that there shall be delivered to the plaintiff free of cost in pipe line a one-eighth part of all oil produced and saved from said premises. The condition being in words and figures as follows: ""To deliver to the credit of the first party, his heirs or assigns, free of cost, in the pipe line to which it may connect its wells, the equal one-eighth part of all oil produced and saved from the leased premises.' "(6) The defendant, Empire Gas & Fuel Company, erected and maintained on said leased premises a treating or steaming plant for the purpose of treating the oil obtained from the wells drilled thereon, and removing therefrom water and basic sediment before turning the same into the pipe line connections, and said treating or steaming plants were operated for the purpose of ascertaining with some degree of accuracy the amount of 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. Three suits by J. E. Hamilton, and by J. L. Shriver, and by Nancy E. Shriver, and others, against the Empire Gas & Fuel Company, consolidated for trial, and for purposes of appeal. From a judgment for plaintiffs, defendant appeals. Reversed, with directions. H. O. Caster, Hayes McCoy, and S. N. Hawkes, all of Bartlesville, Okl., for appellant. John Madden, John Madden, Jr., Louis Nadel, and J. M. Burriss, all of Wichita, for appellees. chantable oil out of which the plaintiff was to receive one-eighth of oil produced and saved from the premises. That said testing or steaming plants were fairly well designed to test the production of merchantable oil, and the plaintiffs received up to the 1st of August, 1920, his checks for one-eighth the royalty of oil turned into pipe line connecting with the wells from the treating and steaming plant. "(7) On or about the 1st of August, 1920, the defendant, the Empire Gas & Fuel Company, breached the terms and conditions of its contract of lease, as aforesaid, closed down and abandoned the use of its treating and steaming plant and resorted to another and different method, known as the 'thief test.' The thief' being an instrument with a cup or trap which is let down into the bottom of tank and brings up a cup of oil, then to the center, and last to the top. These tests are ground out, and an estimate is made therefrom of the amount of oil in each tank. By the method of estimating the plaintiff has been greatly reduced in his one-eighth royalty; the amount of his one-eighth of the production falling immediately to a lesser amount which varies and is uncertain, and hence cannot be placed with any degree of accuracy, but as a total for each month the one-eighth interest of the plaintiff has been diminished one-sixth without there being any diminution in the production of the Wells on said lease, the decrease being due to HARVEY, J. This is a suit by lessors of certain oil and gas leases to enjoin the lessee from using the "thief test" on oil in tanks on the leased premises, and from turning oil under such test into pipe lines for treatment elsewhere, and for a decree requiring defendant to use the heating and steaming plants on the leased premises before turning the oil into the pipe lines. It was tried to the court, who made findings of fact and conclusions of law. Judgment, the nature of which will be more fully set out, was rendered for plaintiffs, and the defendant has appealed. There are three cases against the same defendant, 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 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied December 13, 1924. the inaccurate tests and estimates hereinbefore tained." into its own pipe line and carried the same to | ing said defendants from pursuing their presthe 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 compelknown 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 susfrom wells and pumped into tanks and from tanks turned into connecting pipe lines. By this method the defendant has failed to account for plaintiff's royalty, and placed it beyond the reach of plaintiff to know or ascertain his rights in the premises. Of the amount of oil produced or turned into connecting pipe lines as a result of this method there has been a great loss in pipe line runs. There is no way that the plaintiff can gauge his interest or protect the same, to the plaintiff's irreparable loss and damage. "(8) That during the months of August and September, and up to and including October 11, 1920, there was in the tanks of said leased premises pumped from the wells thereon 28,223 barrels of oil as shown by the gauge of said tanks, as plaintiff is informed and believes. That during said time the defendant, Empire Gas & Fuel Company, has only accounted to the plaintiff for 24,810.36 barrels in said tanks turned into pipe lines, thereby showing an actual loss of 3,412.64 barrels of oil in which the plaintiff has a one-eighth royalty interest, thereby entailing upon the plaintiff a loss of $1,493.03, which would be his one-eighth of said oil as royalty at $3.50 per barrel, the standard price of said oil as published by the Prairie Oil & Gas Company. The answer contained a general denial, and averred that with the oil produced from the leases there is commingled a large percentage of water which varies in amount, which it is necessary to separate from the oil in order to render it marketable; that defendant, without cost to plaintiff, has at all times during the operation of the lease used such methods as were from time to time approved by those skilled in the business, and has at all times delivered to plaintiff a greater amount of credit for oil than plaintiff was entitled to under the terms of the lease; that prior to March, 1919, defendant in separating the water from the oil used a steaming process at great expense; that since that time defendant has used a dehydrating plant in the neighborhood of plaintiff's land, and from then to some time in August, 1920, in order to determine the percentage of water in the oil, defendant made use of fair and average samples of the mixture of oil and water taken from the wells, and used a process known as the "centrifuge" "(9) Plaintiff is informed and believes and or grinding out process, which was during so 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 of the plaintiff is unjust, inaccurate, and problematical in results. The methods adopted by the defendant to produce the result as aforesaid and consequent loss to the plaintiff of $1,493.03 in two months are not known to the plaintiff, and hence cannot be described with accuracy, but are well known to the defendant, ing samples, the dehydrating plant, and the process of determining the amount of water in the oil it made findings of fact that the plaintiffs were the owners of the land described, and had executed oil and gas leases in the ordinary form, containing the clause set out in plaintiffs' petition. that this process did not show the full amount of water or basic sediment commingled with the oil, and, therefore, during that time defendant had given credit to plaintiff for more than the share of oil due plaintiff under the terms of his lease. Both plaintiff and defendant asked for an accounting, 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 thereon. In the use of said treating and steaming plants the plaintiff was able to keep fairly accurate account of the amount of oil produced, treated, and turned into pipe line. The abandonment of said treating plants by the defendant leaves the plaintiff where he can keep no account or do anything to guard his interest or protect his one-eighth royalty, and is compelled to receive without any knowledge of amount the figures furnished by the defendant, which figures are based upon the inaccurate tests as hereinbefore pleaded. They result in an actual loss to the plaintiff, as hereinbefore stated, of $1,493.03, his share in the way of royalty in the 3,412.64 barrels of oil lost and unaccounted for. The plaintiff has no adequate remedy at law to protect him in damage. The methods used as aforesaid are continuing, and the plaintiff will suffer great and irreparable loss, unless he can have the benefit "(5) The above-described lands are situated in what is known as the El Dorado district. At the time said leases were given there was no development for or production of oil in that district. "(6) The defendant became the owner of all of said leases in the year 1916, and commenced to develop all of them in the summer of 1917, very soon after development first started in the El Dorado field. "(7) During the early development in the El Dorado field there was very little water commingled with the oil as it was produced. It |