the note at the time of sult. Story, Prom. Notes, $228; Hills v. Place, 48 N. Y. 520; Wallace v. McConnell, 13 Pet. 136; Washington v. Bank, 1 How. (Miss.) 230.

Counsel for respondent insists that defend. ant Keisel, who purchased the land, subject to the mortgage given in security for the payment of the note, never having seen the note itself until about the time suit was brought, is only bound by the terms of the note as it appeared of record. Conceding that Keisel was ready, able, and willing to pay on the day of maturity, and that he made diligent inquiry, and put forth all reasonable efforts to ascertain the whereabouts of the payee and of the note, and considering the fact that the description of the note in the mortgage contained no place of payment, still the position insisted upon cannot be maintained, because, being unable to find the payee, and not knowing the place of payment, it was his duty, in order to stop interest and avoid costs, to make a tender at the places of business or residences of the makers. This follows from a provision of our statute found in section 2851, Comp. Laws 1888, which reads: "A negotiable instrument which does not specify a place of payment, is payable at the residence or place of business of the maker, or wherever he may be found." It is clear that the efforts which Keisel made to pay the note at maturity, though made in good faith, were not sufficient to excuse him from making a tender to the makers in the absence of the payee from the territory, and to release him from his liability, under the terms of the contract, as to the interest and cost of collection. It is not deemed necessary to pass on any other question raised in the record. The judgment is reversed, and the cause remanded, with directions to the court below to so modify it as to add interest and costs of collection thereto as prayed for in the complaint.

MERRITT, C. J., and SMITH, J., concur.

(53 Kan. 688)

STATE v. WAUGH. (Supreme Court of Kansas. July 6, 1894.) CONTEMPT-WHAT CONSTITUTES-LETTER TO

JUDGE.

Such language as the following, written and sent through the mail by the plaintiff in an action to a trial judge, in a matter still pending before him: "I did not deem it necessary to go to you, with a body of friends and creditors, to impress upon you how important it was that I should have the money that was tied up by the garnishment, and exact of you a promise to rule in my favor. I supposed that surely we would get some chance for hearing. I did not think it possible that our judge could be so warped by such a procedure as to entirely overlook the interests of a poor man, and ride over him roughshod, and decide in favor of a corporation.

*

**

Will you

kindly help me, and inform me what I can do, that I may know that you are not the unjust Judge that would not give a poor man the same chance that a bank has, and you will lift a

load from my heart? And the most unkind act of all, when we had not even had a chance to be heard, was for you to allow an attorney to tax costs,"-is disrespectful, insulting, and contemptuous.

(Syllabus by the Court.)

Appeal from district court, Cowley county; A. M. Jackson, Judge.

F. D. Waugh was found guilty of contempt of court, and appeals. Affirmed.

On November 11, 1893, F. D. Waugh, of Arkansas City, Cowley county, filed in the district court of that county his petition, praying judgment against the Stauber & Uhl Building Company, a corporation, for the sum of $255.28, upon account. On November 13, 1893, service of summons was made upon the corporation. On the date of the filing of the petition, F. D. Waugh filed in the court his affidavit in garnishment against F. M. Strong and the Home National Bank. On the same day, summons in garnishment was served on the garnishees. On November 23, 1893, the Home National Bank filed its answer in the district court, denying, under oath of its president and managing officer, that it was in any wise indebted to the Stauber & Uhl Building Company. Thereafter F. M. Strong, garnishee, filed in the court his answer în garnishment, denying he was indebted to the defendant corporation, but stating he was in doubt as to his liability to the corporation, and thereupon made a detailed statement under oath, and submitted the question of his liability to the court. On November 29, 1893, F. M. Strong, garnishee, filed in the district court his motion to make the First National Bank of Arkansas City, George W. Robinson, receiver of the First National Bank of Arkansas City, Clum and Dingman, partners as Clum & Dingman, of Washington, D. C., and H. P. Farrar, of Arkansas City, parties defendant in the main action, in order that the court might fully determine and adjudicate the matter as to whether the garnishee was indebted to the defendant corporation, or to the First National Bank of Arkansas City, or George W. Robinson, receiver of the First National Bank of Arkansas City, or H. P. Farrar, of Arkansas City, or Clum & Dingman, of Washington, D. C. On January 6, 1894, H. P. Farrar waived the issuance of summons as prayed for in the motion, and filed his disclaimer to any interest in the funds in the hands of F. M. Strong, garnishee, and claimed that all his prior interest in the funds in the hands of the garnishee, by virtue of the contracts mentioned in the garnishee's answer, had been transferred to the First National Bank of Arkansas City, and the receiver thereof, long before the service of the garnishment process in the action. On January 1, 1894, George W. Robinson, receiver of the First National Bank of Arkansas City, entered his appearance in the case as a defendant, and claimed under the answer of the garnishee, F. M. Strong, that he, as receiver, was entitled to the mon

ey and funds in the possession of F. M. Strong, garnishee, as disclosed by the answer of the garnishee, claiming the money was not the subject of garnishment, and praying for an order from the court directing F. M. Strong, garnishee, to pay the receiver the money in his hands, upon the grounds and for the reasons set forth and stated in the contract attached to and made a part of the answer of F. M. Strong. Notice of the motion being filed and set for hearing was served upon the attorney of F. D. Waugh. On January 8, 1894, Waugh took judgment by default against the Stauber & Uhl Building Company, and the court ordered the garnishment proceedings to be continued and preserved for the further order of the court. On the same day, Waugh filed his motion praying for an order directing F. M. Strong, garnishee, to pay into court, for his benefit, the amount of his judgment against the Stauber & Uhl Company. Notice of the motion being filed, the time for the hearing thereof was served upon F. M. Strong. On January 9, 1894, the motion of said Waugh, requiring Strong, garnishee, to pay into court the amount of plaintiff's judgment against the Stauber & Uhl Building Company, came on for hearing, and was overruled. At the time the motion of George W. Robinson, receiver of the First National Bank of Arkansas City, praying for the release of the funds in the hands of F. M. Strong, garnishee, came on for hearing, and upon consideration of the motion the court sustained the same. upon, F. D. Waugh, by his attorney, asked the court to require the garnishee, F. M. Strong, to hold and retain in his possession the moneys then in his possession, as disclosed by his answer, for the purpose of settling the judgment of the plaintiff, and costs, together with such other costs as might accrue therein pending an appeal of the aetion to the supreme court. The court allowed this motion, and directed F. M. Strong, garnishee, to keep and hold in his possession, for the use and benefit of F. D. Waugh, until further order of the court, the sum of $1,525. At the same time, by the consent of all parties, the sum of $111.70 was ordered to be paid by F. M. Strong, garnishee, out of the funds in his possession, to Clum & Dingman, attorneys, of Washington, D. C., to satisfy their attorney's lien. Thereafter, on the 17th day of January, 1894, while the district court of Cowley county, was still in session, and Judge Jackson was presiding, F. D. Waugh wrote a letter to the district judge, of which the following is a copy: "F. D. Waugh, Dealer in Lumber and Building Material. Office, 111 Fifth Avenue, East of Home National Bank. Hon. Judge Jackson, Winfield, Kas.--Dear Sir: I have several times, while waiting in the court room, listened to your rulings, and had been very favorably impressed with your fairness; so much so that in the great and important case to me, in which almost life and death is meant to me,

There

I did not deem it necessary to go to you, with a body of friends and creditors, to impress upon you how important it was that I should have the money that was tied up by the garnishment of the Stauber & Uhl fund in the hands of Mr. F. M. Strong, and exact of you a promise to rule in my favor, though it would be contrary to all rulings and the statutes on the points at issue. I supposed that surely we could get some chance for a hearing. I did not think it possible that our judge could be so warped by such a procedure as to entirely overlook the interests of a poor man, and ride over him roughshod, and decide in favor of a corporation, just because they pleaded that they must have the money to open the bank with. Now, the facts in my case are these: Had I not stood in the breach, and furnished my material to have finished that contract after the First National Bank could not do it, the contract would have been taken out of the contractor's hands, and finished by the government, and they would have thereby have used nearly if not all of the money that the said national bank now gets; and I would ask why I am not entitled to a chance to be heard, as well as the bank. The loss of this $1,225.28 will ruin me. I am at an age that I cannot recover from it. Why must I be compelled, at great cost and long process of years, to go to the supreme court, to get back to where I can even get a hearing? Now, judge, for God's sake, is there not some way that this can be avoided, and I get a hearing in your court, and that I can get my money released, so that I can open up, and do business, and not be ruined? I ask this in the name of justice; I ask this for my creditors; and lastly, though not least, I ask it for my little ones dependent upon me. Will you kindly help me, and inform me what I can do, that I may know that you are not the unjust judge that would not give a poor man the same chance that a bank has, and you will lift a load from my heart? And the most unkind act of all was, when we had not even had a chance to be heard, was for you to allow an attorney to tax with costs. I cannot believe that you would have allowed all this, had you known anything at all of our rights in this matter. Hoping to hear from you, and that this matter can be fixed at an early date, I am, very truly, F. D. Waugh." On January 18, 1894, an information for contempt of court was filed in the district court of Cowley county by the county attorney of the county, charging F. D. Waugh with contempt of court. On January 18, 1894, a warrant was issued out of said court for his arrest, and on January 19, 1894, he was brought into court. The hearing of the case was continued to January 22, 1894. The defendant, waived arraignment and pleaded not guilty, and also waived the introduction of any evidence on the part of the state. He was then sworn on his own behalf. Thereupon, the court found him guilty of contempt,

and fined him $50 and costs of case, and fur ther ordered that he be committed to the jail of Cowley county until the fine and costs were paid.

Z. T. Armstrong, for appellant. John T. Little, Atty. Gen., Geo. W. Scott, and W. P. Hackney, for the State.

HORTON, C. J. (after stating the facts). The district judge, on the receipt of the letter sent to him on the 17th of January, 1894, by F. D. Waugh, construed it as a contempt, and, after a hearing upon an information filed by the county attorney, adjudged Waugh guilty of a contempt, fined him $50, and ordered him to be committed until the fine and costs were paid. The contention is that Waugh was not guilty of any contempt; that he should have been discharged upon his statement "that he had no intention of contempt of the court, or any one else;" and that there was no case pending before the court, to which the letter referred, or was in any way connected. The rulings of the district court in the case of Waugh against the Stauber & Uhl Company were referred to in the letter, and the writer said, among other things: "I did not deem it necessary to go to you, with a body of friends and creditors, to impress upon you how important it was that I should have the money that was tied up by the garnishment, * * * and exact of you a promise to rule in my favor. * ** I supposed that surely we would get some chance for a hearing. I did not think it possible that our judge could be so warped by such a procedure as to entirely overlook the interests of a poor man, and ride over him roughshod, and decide in favor of a corporation. Will you kindly help me, and inform me what I can do, that I may know that you are not the unjust judge that would not give a poor man the same chance that a bank has, and you will lift a load from my heart? And the most unkind act of all, when we had not even had a chance to be heard, was for you to allow an attorney to tax costs.". The letter was evidently written for the purpose of complaining of the rulings of the trial judge, and of influencing the course of justice in the decision of a cause. It also contained severe imputations against the trial judge, and was an attempt, at least, to obstruct, prevent, and embarrass the administration of justice. Its language was disrespectful, insulting, and contemptuous. In re Pryor, 18 Kan. 72. It is true, when Waugh came into court, he disavowed any intentional disrespect to or contempt of the court, but admitted he wrote and sent the letter. The trial judge might have discharged Waugh, after his disavowal, upon the ground that, his disappointment being great over an adverse decision, he had written stronger than he had intended, in a momentary outbreak of anger. Generally, as was said in Re Pryor, supra, "A judge

*

It

will wisely overlook any mere hasty, unguarded expression of passion or disappointment, even though disrespectful, or simply notice it by a reproof." But the mere denying by Waugh of any disrespectful or insulting design in the letter reflecting upon the trial judge does not relieve him of responsibility for the language he actually used. is not for him or his counsel to construe or state the effect of the language. U. S. v. Late Corporation of Latter Day Saints (Utah) 21 Pac. 524; McCormick v. Sheridan (Cal.) 20 Pac. 24. We cannot say it was the duty of the trial court, upon his mere disavowal, to order his discharge. The question of the advisability of the court's action is not the matter of our consideration. It is the question of power, and whether the letter was in fact a contempt. The matter referred to in the letter was still pending before the court. Evidently, Waugh so understood it, because his purpose in writing the letter seems to have been to obtain another hearing before the court. He testified, among other things, as follows: "Q. One of the objects you had in writing the letter was simply to ask if there was any way that the matter could be disposed of without going to the supreme court? A. That was my whole object. Q. You had been advised by your attorney, be fore this, that was the only thing left for you? A. At the meeting Monday night, that was the advice my attorney gave me. Q. You are anxious and desirous that an order should be made, whereby you would get your money? A. Yes, sir; I was very anxious. Q. It was not material to you how it was obtained, so long as it was done for you? A. Yes; I only wanted justice. I felt it was just that I should have it. I couldn't feel any other way." Again, it appears from the record that the case of Waugh against the Stauber & Uhl Company had not passed beyond the jurisdiction of the trial judge, that the term of the court had not expired, and that the order made by the court was subject to change or modification after the letter was received. Further, the fund in controversy, and concerning the disposition of which the etter was written by Waugh, was ordered by the court to be retained by the garnishee for further proceedings. The case was under the full control of the court, at least, until the final adjournment for the term. The judgment will be affirmed. All the justices concurring.

(53 Kan. 674)

STATE v. KEYS. (Supreme Court of Kansas. July 6, 1894.) WITNESS-CREDIBILITY-INSTRUCTIONS.

1. An instruction that "it does not discredit a witness if he should voluntarily appear without the issuance of a subpoena" is not prejudicial error, where the jury are also told that they may take into consideration any interest which the witness might appear to have, or any bias. prejudice, or unfairness manifested by him.

2. An error in charging the jury, which

not be counted as any part of the term of his sentence, but the said convict shall be sentenced by the court to confinement in the state penitentiary for the full term for which he or she was sentenced by the court before whom he or she was convicted and undergoing sentence at the time of the violating the provisions of this section: provided, that no limitation shall bar proceedings under this section." A motion was made to quash the information, and this motion was sustained by the district court.

The question presented is as to the constitutionality of the provisions of section 28. And, first, do they come fairly within the scope of the title to the act? The title appears to be broad enough to cover any matter directly relating to the penitentiary, and the management thereof. Under it the legislature might undoubtedly provide rules and regulations governing the conduct of the inmates, and punishment for an infraction of them. But this section goes further, and provides, not merely punishment for escapes, mutinies, etc., but undertakes to establish a special procedure, by which jurisdiction is given to the district court of Leavenworth county alone, to proceed on an information filed by the warden of the penitentiary, instead of the county attorney, to hear complaints of violations of this section, and thereupon, if the charge be sustained, to pass sentence on the defendant. It is urged that the section does not authorize nor contemplate a trial by jury, and that it is therefore violative of another provision of the constitution. The section is entirely silent as to the mode of trial. It simply says, "If the charge be sustained the time said convict had served in the penitentiary prior to such act as charged, shall not be counted as any part of the term of his sentence, but the said convict shall be sentenced by the court to confinement in the state penitentiary for the full term for which he or she was sentenced by the court, for which the prisoner was confined." No reference whatever is made to the Code of Criminal Procedure, under which parties charged with crime are ordinarily tried. It would only be by a strained construction, deemed necessary to uphold a wholesome enactment, that it could be said that such a section as this contemplated a trial by jury in the usual manner. We think the legislature had no such thought, in enacting this section, but intended a summary proceeding without a jury. If so, of course the section is void. We think it void under section 16, art. 2, of the constitution, because, under an act entitled "An act in relation to the state penitentiary," it attempts to establish a system of special criminal procedure in Leavenworth county, for a special class of offenses, and undertakes to confer on the warden of the penitentiary the functions of a prosecuting officer in that court. This is clearly outside of the scope and purview of the title. Criminal procedure is a distinct

branch of the law, clearly disconnected from the conduct and management of state institutions. Swayze v. Britton, 17 Kan. 625; Sedgwick Co. v. Bailey, 13 Kan. 600; State v. Barrett, 27 Kan. 213; Railway Co. v. Long, Id. 684. The section is open to other serious constitutional objections. Its provisions do not commend themselves to our sense of justice. The punishment required to be imposed is not to be measured by the offense committed, but is made to depend wholly on the date of the sentence under which the prisoner was confined in the penitentiary at the time he committed the act for which he is punished. The court is required simply to obliterate the time that he has been confined in the penitentiary for his original offense, and, as a punishment for the escape or mutiny, to reimpose the sentence given by the court for his prior crime. So it may happen under this section that two men attempting or effecting an escape from the penitentiary on the same day, in concert, under precisely the same circumstances, and with exactly equal guilt, would receive wholly different punishment. If one had been confined but for a day, his punishment would be increased but by one day, while the other, who might have been confined for 20 years, would be sentenced to a further confinement for that number of years. Is not this, in effect, not merely placing a defendant twice in jeopardy for the same offense, but in fact punishing him twice? Can this be said to be an impartial administration of justice? Can it be said to be affording to all individuals the equal protection of the laws? The inherent vice of such an enactment is not fully apparent until the fact is recognized that at the penitentiary, where there are no witnesses of what transpires but convicts and officers, the oath of a convict would have little weight against that of an officer, and a charge preferred and backed up by the oath of an officer would in most cases insure a conviction, thus unduly increasing the necessarily great power of the warden over the inmates under him. We are not disposed to strain our construction of constitutional safeguards to uphold such a statute. We think section 28 wholly void, and the order of the district court, quashing the information, is sustained. All the justices concurring.

(53 Kan, 657)

STATE v. PRIOR. / (Supreme Court of Kansas. July 6, 1894.) CRIMINAL LAW-MOTION TO QUASH-INFORMATION -CHARGING TWO DISTINCT ACTS.

1. A motion to quash should precede arraignment.

2. An information may be amended on the trial as to all matters of form, at the discretion of the court, when the same can be done without prejudice to the rights of the defendants.

3. Where a statute makes two or more distinct acts connected with the same transaction indictable, each one of which may be considered as representing a phase in the same offense, and