"The inconsiderable sums which the respondent has paid for taxes on the property and inhim, are fully balanced by his use of the propterest on the mortgage, since the conveyance to Some question is made whether these findings were made by the court or by the judge in vacation, and some contention that the appeal is not timely; but from the entire show-erty." 41 Conn. 480. ing it must be held that the findings were first made a part of the journal entry by the court at the succeeding term, and that the appeal was taken in time. Un "In this case the appellant had fully complied with the contract for nearly two years. der this state of the case, it is not competent for the appellee to sue for and recover the entire consideration paid by him by reason of the failure of the appellant to comply with the contract for the period of nine months." 118 Ind. 66, 20 N. E. 529, 3 L. R. A. 519. Pitts' Adm'r v. Pitts, 21 Ind. 309, was an action by a daughter against her father's estate on a note given in consideration of her living with and keeping house for him. An The plaintiff claims that his expenditures instruction to the effect that if she, without in the support of his parents amounted to sufficient cause or without his consent, left $12,000 more than the use of the land, and his service before his death, she could rethat the father, having been tolled away by cover the reasonable value of her services, the brother, is conspiring with him to sell was approved. In Vancleave v. Clark, 118 the land and oust the plaintiff therefrom, Ind. 61, 20 N. E. 527, 3 L. R. A. 519, a man and has even brought a forcible detainer suit contracted with another for the support of in pursuance of such purpose; that the plain- his infant daughter in his own family as tiff has occupied the land as a homestead for one of his children. After thus supporting seventeen years; that he has at all times her for some time he placed her in a counbeen willing to support his father, and in his ty asylum among common paupers, on acpetition tenders such support and a good count of her having become insane. It was and sufficient bond to secure the same. It is held that the recovery for the breach of the urged with much force that the plaintiff has contract would be the difference in value beacquired an interest in the land which equity tween the care contracted for and the care should protect, even though he may have received. It was said: been at fault in not keeping on good terms with his father. Numerous cases are cited holding, in substance, that after a long-continued execution on the part of the child such a contract may not be breached by the parent, but the feature which distinguishes this from any cited case is the express finding that the plaintiff himself breached the contract by practically driving his father away. Taking this finding as true, as we are compelled to do under the rules, the trial court was justified in holding that the plaintiff is not in condition to ask a court of equity to enforce the contract. But after much consideration this court has reached the conclusion that, as the contract appears to have been made by both parents with both of the sons who were to render the support in return for land, that the entire support of the parents for many years seems to have been furnished by the plaintiff, he having entered upon the land by the consent of the parents under the contract and raised his family there and regarded it as a homestead for more than 15 years-if the support furnished was as alleged of as many times more value than the use of the land-it is not fair or equitable to hold that the father can put the plaintiff and his family off the land and dispose thereof without any regard to the rights therein of the son who offers to secure his father's continued support. The principle of allowing for partial consideration paid or part performance had before the breach or misconduct of the grantee has been recognized in a number of decisions involving contracts somewhat similar to the one before us. In Penfield v. Penfield, 41 Conn. 474, the son supported the father a few months, and then a quarrel arose, and thereafter the son failed to care properly for him. In compelling a reconveyance the court said: In Patton v. Nixon, 33 Or. 159, 52 Pac. 1048, a woman made a conveyance of her property to her daughter in consideration of her future support, and after receiving such support for a time it ceased, and it was held that, while she had a remedy at law to recover by way of damages, equity would dispose of the matter by making her maintenance a charge upon the property. The Supreme Court of Minnesota, in Bruer v. Bruer, 109 Minn. 260, 265, 123 N. W. 813, 28 L. R. A. (N. S.) 608, in a case of conveyance by a parent to his son for support and maintenance during the remainder of his life, held that upon breach of the agreement by the son the plaintiff could have the conveyance set aside or the amount due under the agreement made a lien upon the land or such other relief as the equities made justifiable. It was said in the opinion that by the modern trend of authority these transactions are placed in a class by themselves and enforced without regard to form and phraseology. In Norris v. Lilly, 147 Cal. 754, 82 Pac. 425, 109 Am. St. Rep. 188, a suit for cancellation for breach of a contract to support after performance had continued for six years, while the question arose upon the correctness of the judgment upon the pleadings, it was said in the opinion: ants, after the payment of this money, and after "In the very case here pleaded, if the defendyears of personal service, had refused to proceed further with the contract, plaintiff unquestionably would have been entitled to rescind; but in rescinding the court in equity would take cognizance of the value of the services rendered and the moneys paid, the value of the occupation of the land by the promisors, and reach its conclu-jable doubt of the defendant's guilt while unnecsion under the evidence as to the terms upon essary and not to be commended, was not matewhich a cancellation of the deed should be de- rially prejudicial. creed." 147 Cal. 756, 82 Pac. 426, 109 Am. St. Rep. 188. In Johnson v. Paulson, 103 Minn. 158, 114 N. W. 739, in a case of breach after partial compliance, it was held that the court was justified in ordering judgment that the land should be returned to the grantors, "with the right of possession upon payment to the grantees of an amount sufficient to reimburse them for expense incurred in making improvements on the premises." This is a well-considered case, and numerous authorities are cited. See, also, Bogie v. Bogie, 41 Wis. 209; note 43 L. R. A. (N. S.) 916; 6 R. C. L. § 319. [3] While, under the findings made by the court, the plaintiff is not in a position to ask the specific performance of the contract, still he should be permitted to retain possession of the land until reimbursed or secured for the partial payment he has made thereon by the long years of support furnished his parents, if it can be shown to have been materially more valuable than the entire use he has had of the land. When the case was here before (Holland v. Holland, 89 Kan. 730, 132 Pac. 989), it was said that sufficient grounds were stated in the petition for the relief sought in the second and third counts, and as pleadings remain the same the suggestion still applies. It was error to compel an election and restrict the plaintiff to a trial of the first cause of action. The entire controversy should have been settled. The judgment is modified, and the cause remanded for further proceedings in accordance herewith. All the Justices concurring. (Syllabus by the Court.) 1. HOMICIDE 130-MURDER IN FIRST DEGREE INFORMATION-SUFFICIENCY. A charge that the defendant unlawfully, willfully, feloniously, purposely, and of deliberate and premeditated malice killed the person named by shooting him with a gun, commonly called a revolver, which was then and there loaded with powder and leaden bullets, construed to mean that the killing was done with deliberation and premeditation. [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 199-202; Dec. Dig. 130.] 2. HOMICIDE 253-MURDER IN FIRST DEGREE-SUFFICIENCY OF EVIDENCE. The claim that the evidence did not warrant a verdict of guilty of murder in the first degree considered, and held to be without substantial foundation. [Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 523-532; Dec. Dig. 253.] [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 3159-3163, 3169; Dec. Dig. 1172.] 4. CRIMINAL LAW 1169-HARMLESS ERROR 5. CRIMINAL LAW 448-EVIDENCE-CON- In describing a place with reference to an obstruction of the defendant's view it was not material error to permit a witness to answer in part that a person naturally could see as big an object as the one described. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1035-1039, 1041-1043, 1045, 1048-1051; Dec. Dig. 448.] 6. CRIMINAL LAW 1170-HARMLESS ERROR -EXCLUSION OF EVIDENCE. Rejected evidence of a witness that defendant had attempted to sell his farm prior to the shooting was not of sufficient importance to require reversal; the defendant being permitted to go into the matter fully when upon the stand. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3145-3153; Dec. Dig. 1170.] 384 - EVIDENCE RE 7. CRIMINAL LAW [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 848; Dec. Dig. 384.] 8. CRIMINAL LAW 596-REFUSAL OF CONTINUANCE-ABSENCE OF WITNESS. Numerous witnesses testified as to the character and reputation of the defendant and the deceased for peaceableness or quarrelsomeness so that the jury had fair and ample information as to these matters. Held, that a refusal to grant a continuance on account of the sickness of another witness who had been subpoenaed to testify mainly in relation to these questions was not material error. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1328-1330; Dec. Dig. 596.] Appeal from District Court, Linn County. E. B. Wimer was convicted of murder in the first degree, and appeals. Affirmed. J. I. Sheppard, J. G. Sheppard, and W. P. Dillard, all of Ft. Scott, for appellant. S. M. Brewster, Atty. Gen., Harry Fisher, of Mound City, and J. A. Hall, of Pleasanton, for the State. WEST, J. The defendant was convicted 3. CRIMINAL LAW 1172-HARMLESS ERROR of murder in the first degree, and appeals -INSTRUCTIONS-REASONABLE DOUBT. A charge that the jury could not acquit, upon the grounds urged in his brief that the unless each one of them entertained a reason-information did not charge, or the evidence prove, such offense, that the court erred in the instructions, in the admission and rejection of testimony and in denying a continuance. These will be considered in their order. [1] The charging part of the information of which the defendant complains is that: "One E. B. Wimer did then and there unlawfully, willfully, feloniously, purposely, and of deliberate and premeditated malice kill one V. M. Harold, by shooting the said V. M. Harold with a gun, commonly called a revolver, held in the hands of the said E. B. Wimer, which said revolver was then and there loaded with powder and leaden bullets. And the said E. B. Wimer did then and there as aforesaid then and there cause the death of the said V. M. Harold." It is contended that this is not a charge of a willful, deliberate, and premeditated killing within the meaning of the statute defining murder in the first degree. Smith v. State, 1 Kan. 365, State v. Brown, 21 Kan. 38, State v. Stackhouse, 24 Kan. 445, and State v. Johnson, 92 Kan. 441, 140 Pac. 839, are cited. In the Smith Case it was said that: "To be murder in the first degree, the killing must have been willful, deliberate, and premeditated, and such deliberate and premeditated will or intent to kill being an essential ingredient in the crime must be alleged in the indictment, else the prisoner is convicted of a crime for which he has not been indicted." 1 Kan. 388. which must be attached to the expression, [2] In order to dispose of the contention In the Brown Case the indictment did not charge that the killing was done deliberately or premeditatedly. The court said that stripped of everything except that which might be supposed to charge deliberation and premeditation it charged that the shooting was done with deliberate and premeditated malice, but not that the defendant at the time had a deliberate and premeditated intention or any intention of killing; that from anything appearing in that part of the in-place in February, 1913, when the wife movdictment the shooting might have been committed with the intention merely of wounding the deceased. In the information before us, however, the killing itself is alleged to have been done feloniously, purposely, and with deliberate and premeditated malice. With all the thoroughly approved forms easily found, it is difficult to see why an information presenting any perplexing questions as to sufficiency need be used. But, however inartistic, if the required substance be found in the charge, it must be upheld, for the defendant could suffer no material or prejudicial injury because of mere informality. In the Stackhouse Case it was said that the assault, the killing, the intent to kill, and the deliberate and premeditated intent constitute all the elements of the crime. 21 Kan. 450. In the Johnson Case definitions of deliberation and premeditation are given, and it is said that the former has reference to having thought over the matter beforehand, and that the latter pertains more to the matter of committing the act or the fact that its commission was determined upon in cold blood. The vital question is the meaning ed away and never afterwards lived with Kan.) of his stepson the defendant tried to sell his hand out and had this gun in it, and he leveled farm and made certain journeys to other it at Virge and when he done that I holloed at him. I said, 'Hold on there, Mr. Wimer, we're He kinda turned and parts of the country. At Easter, 1914, Virgil running this place now.' Harold was at the place where the Chamber- started back up toward the house, and Virge lains and the defendant lived, being a chum turned to me and said, 'Jim, did you see that I said, 'Yes, I seen it.' He said, 'Old of one of the Chamberlain boys, and, al- gun?' man, I'll have you arrested before to-morrow though he and the defendant met, no trouble night for drawing that gun on me, and I have Wimer turned appears to have arisen and no fault appears got the money to back it.' to have been found by Mr. Wimer by reason around and said, 'I have got as much money as you have, and I'll show you, you; you hitch of Harold's presence. In June thereafter the up that horse and get out of here as quick as defendant began helping in the construction you can.' Virge said, 'I'll go as soon as I get Wimer said, 'You ' and beof a house for a neighbor a mile east of him, hitched up.' and on July 2d thereafter Virgil Harold drove gan shooting; at that time Virge lacked one tug and a breeching strap of being hitched up; up to the place where Wimer was working, before Wimer turned and started for the house and after remaining there a while went to Virge was standing on the north side of the the Wimer place, unhitched his horse, and horse, and when Wimer turned he went on the south side and slipped the shafts into the shaft had supper with the Chamberlains, intendstrap and hitched the tug when Wimer got back ing to go that evening to an ice cream sup- to him; Wimer had gone probably twenty feet per. Some time before this the pistol carried towards the house before he turned and came by the defendant got out of repair and he back; I didn't notice exactly but he was standing from five to six feet from Virge when he procured another, but did not have it upon went to shooting; I was standing in the front He door; there was nothing to obstruct the line of his person on the day last referred to. *Harold didn't make any came home that evening, according to the my vision; * kind of motion toward Wimer at the time of or testimony of some of the witnesses, some immediately before the shooting; he didn't ad** Virgil Harold's vance toward Wimer in any way; what earlier than usual. horse was in the barn, and after supper he there were two shots fired right together and went out to hitch up to his single buggy. then a very short pause before the third shot; Harold said nothing at the time of the Robert Chamberlain testified, among other firing of the first two shots, just whirled and started to run." things: * * * The testimony showed that Harold was unarmed, and that the fatal shot was in the back near the spine. Other members of the Chamberlain family who were present gave substantially the same account of the shoot ing. The defendant himself testified, among other things: That he ran out of the north door of the dining room into the yard, through the gate in the direction of the barn and saw Wimer standing in front of Harold with a gun in his hand about six feet from the deceased. "I saw Wimer have a revolver in his right hand; Virgil's hands were hanging down to his sides, the way I looked at him; I heard no shots up to that time; Wimer spoke first; as near as I can give "; I didn't it, I heard him say, "You hear Virgil say anything; when Wimer swore That he heard on the day of the shooting that that oath he commenced shooting right away Virgil was down at Chamberlain's and heard fired three shots, two in quick succession with some one say that he stayed there half of his a short pause before the third: I saw Virge time; that when he ordered him away upon turn and commence to run as quick as he could; that occasion he thought he was there to carry Virgil didn't speak another word after Wimer out his threat; but when he got home that said, "You -"; ; he cried out, but didn't evening Harold was sitting on the front porch. speak a word; he cried out after the first two "I went around the house to avoid him and to shots were fired; he turned to the left and get away and stay away from him; I went upkinda ducked under his horse's nose, away from stairs and got my pistol and went out to order Wimer; when the first two shots were fired him away; I thought he was there to hang there was just a short pause; Virge was turn-around until he got an opportunity to carry out ing, and just as he ducked under his horse's his threats against me; that's why I went out nose the third shot got him in the back; after Wimer fired he started walking up in the directo order him away and I took my pistol with tion Virge turned, not but a step or two, prob- me; when I went out there I said, 'Now, Virge, you know the conditions between you and me. ably three or four steps, and met right up with What are you doing here? You ought not to be here. I don't want you here.' He swore, my brother; and I was right close, probably please.' two or three steps away; I mean my brother I will come when I please and go when James; he was coming from towards the barn." He had his horse by the halter rope, and he He further testified that when he asked dropped that and throwed his hand down to his hip, and said, '—, I will just leave here when I had the revolver in Wimer to give him the gun the latter step- I get good and ready.' ped back in so as to face both of the brothers the bib of my overalls and as he throwed his and ordered them to keep back and stay off, hand down to his hip pocket I covered him and and said that "That can't come here." said, 'Don't do that, Virge; don't do that. You go away from here now; this thing has gone You go away far enough between you and me. from here right now.' He said, 'I am going as soon as I hitch up.' I said, "That's all right; that's all that's necessary,' and I started on back to the house. I went probably eight or ten steps. He said, 'I am going to get you for this. I am going to get you for this.' He You said several other things while I was walking; he asked Jim, in the first place, if he saw the gun, and Jim told him he did, and he said, 'I am going to have him in Mound City before toHe thinks I am afraid of his morrow night. James Chamberlain testified: you old gun. I am going to get you for this, - I turned around and faced back; his horse was facing almost directly to the barn; he was on the opposite side of it, the opposite side from me, and as I turned around I stepped back a step or two towards him, watching him, and he come right around in front of the horse; just as he come around in front of the horse he said, 'I will get you for this, you He came around with his left arm up and the other one back behind him [here the witness indicated]; then I fired; I shot three times as fast as I could pull the trigger; I shot to keep him off of me; I believed he was going to carry out his threat to kill me; when he whirled to run I quit shooting; I watched to see that he didn't turn and commence shooting at me; 1 quit shooting as soon as he turned away from me; I did not know at that time that I had hit him at all." * On cross-examination he testified: "Yes, sir; I shot him; I didn't expect anything else but to hit him; when I started into the yard I saw Virge Harold was there; I went upstairs on purpose to get my gun; when I went out into the barn lot the first thing I saw Harold doing was getting ready to hitch up." He also testified: ing their right to disagree, for this is universally understood." 56 Kan. 371, 43 Pac. 259. The expression is at least an unnecessary one and its use is not to be commended because, as everybody knows, the jury may either convict or acquit or disagree, and it can by no possibility enlighten them to charge that they cannot acquit, unless they all entertain a reasonable doubt. However, it does not follow that the expression gave any license to believe that a conviction must be had, unless all the jurors entertained a reasonable doubt, and it does not appear that any material prejudice arose from the use of this language. [4] A witness was permitted, over objection, to state that the deceased and one of the Chamberlain boys were good friends. This was for the purpose of showing that Harold was at the Chamberlain's place on account of this friendship, rather than for the purpose of annoying the defendant and in view of the claim of the latter was competent. While the answer to the question "I did not have any idea he was there for any really amounted to a conclusion, and the other purpose but watching his chances; I talk-objection, strictly speaking, should have been ed calmly to him; I was calm enough to talk sustained, still the fact which was shown to him reasonable; I wasn't in a passion; I wasn't talking when I fired the first shot; I had that the two young men visited at the homes no other thought in my mind only to keep Virge of each often would indicate quite strongly off of me and to keep him from hurting me; no, that they were good friends, and the conclusir; I did not at the time fire those shots at Virgil Harold's body intending to kill him; Ision of the witness was not materially prejintended to stop him; I did shoot right at him." udicial. While for a year and a half the conduct of the deceased toward the defendant and his threats made to and about him up to the latter part of June, 1914, were inexcusable and atrocious, still the word pictures of the tragedy itself as already indicated are such that the jury were fully warranted in finding the homicide characterized by sufficient deliberation and premeditation to make it murder in the first degree. [3] The court instructed the jury that if any of them, after having considered all the evidence in the case and after having consulted with his fellow jurymen, should entertain a reasonable doubt of the defend ant's guilt, then they could not find the defendant guilty; that in such case the defendant could not be acquitted, unless each one of the jurors should entertain a reasonable doubt of his guilt. The latter expression is assigned as error. It is said to be open to the construction that unless every one of the jurors entertain a reasonable doubt the verdict must be "guilty." The instruction is substantially the same as that considered in State v. Rogers, 56 Kan. 362, 43 Pac. 256, which was to the effect that if any one juror entertain a reasonable doubt of the defendant's guilt, a conviction cannot be had. "But you cannot acquit the defendant, unless all the jurors entertain a reasonable doubt." 56 Kan. 362, 43 Pac. 256, par. 3. In the opinion it was said: "If the minds of the jurors do not so concur, there must be a disagreement. But it is hardly necessary to instruct an American jury touch [5] A similar objection was made to a question propounded to Robert Chamberlain as to what amounted to an obstruction of the defendant's view of the deceased from Instead of answering that he would or would not have been in full view, the house. his answer was: "Well, a person naturally could see as big an object as that, though there's two or three small trees there. No leafy trees or bushes or anything of that kind. Several little maples with leaves all off." This was a sufficient statement of the facts to render the objection on the ground of stating conclusions without merit. [6] Complaint is made that evidence of another witness of defendant's attempt to sell his farm prior to the shooting was erroneously rejected. The defendant himself was permitted to state fully what attempts he had made in this direction. The rejected evidence was not sufficiently important to require reversal on account of this ruling. [7] An offer to prove by a witness that in September, 1909, Virgil Harold assaulted and beat a boy named Richard Glaze and was discharged on account of his quarrelsome nature and disposition, was rejected. The evidence introduced touching the character of the deceased was quite sufficient to show his quarrelsome nature and disposition without going back before the marriage of his mother with the defendant, and no error was committed in rejecting the testimony in question. [8] Finally it is complained that a contin |