Fourth. In cases not punishable with death or imprisonment in the penitentiary, to the number of four, and no more." Section 199 provides: "In all criminal trials the state may challenge peremptorily half the number of jurrs allowed the defendant by the preceding section." Mr. Thompson, in his work on Trials (volume 1, § 45), says: "Although the defendants so jointly indicted may severally be permitted the statutory number of challenges, this does not increase the number allowed to the state beyond the number allowed to it in the case of a single defendant. The prosecution cannot complain of this, since it is a matter of its own choice to proceed against the defendants jointly, when it might have proceeded against them severally." The authorities in states having statutory provisions somewhat similar to our own fully support this rule. Mahan v. State, 10 Ohio, 232; Savage v. State, 18 Fla. 909; State v. Earle, 24 La. Ann. 38, 13 Am. Rep. 109; State v. Gay, 25 La. Ann. 472; Wiggins v. State, 1 Lea, 738; Shoeffler v. State, 3 Wis. 823.

Again, the record shows at the trial counsel for defendants were accompanied by the official court stenographer of the Twentieth judicial district, acting in the capacity of a private stenographer for counsel, employed by defendants for the purpose of taking notes of the testimony and performing other clerical matters in the progress of the trial for the use of counsel for defendants. Upon objection made by the county attorney, such private stenographer was refused by the court permission to take notes in open, court of the evidence of witnesses and other matters occurring in the progress of the trial. This was error. It is the right of one put upon trial for a criminal offense to have a public trial, to be represented by counsel, and in all things to have opportunity for a full and fair investigation of the charge brought against him, and to prepare for and present his defense thereto. If in the progress of this trial counsel for defendants desired the services of a private stenographer or clerk to assist them in the discharge of their duties, defendants had the right to employ such assistant, and had the right to his presence in the court room and his aid during the trial; and it is error to deny such right, if request therefor is made, as in this case, in a proper manner, and such request is reasonable, and the person so employed demeans himself in a proper manner toward the court. As tending to support this position, see People v. Hartman, 103 Cal. 242, 37 Pac. 153, 42 Am. St. Rep. 108; People v. Murray, 89 Mich. 276, 50 N. W. 995, 14 L. R. A. 809, 28 Am. St. Rep. 294.

Again, it is contended the court erred in the reception of parol evidence as to the contents of the written agreement executed by the parties alleged to have participated in the conspiracy. It appears from the record that the county attorney served notice upon de

fendants to produce this written agreement at the trial. It does not appear such writing was in the possession of or under the control of defendants. It does appear the written instrument was not in the possession or under the control of the prosecuting attorney. It is clear that, if such writing is shown to be in the possession of the defendants, they could not be compelled, by notice or otherwise, to produce it as evidence to be used in a prosecution against them. It is further apparent that, if such writing were shown to be in the possession of defendants, it would be as completely lost to the prosecution, so far as any power existed to procure it as evidence upon the trial, as though it were lost or destroyed altogether. And in such case parol evidence of its contents has been held admissible by this court. State v. Gurnee, 14 Kan. 111. As the writing in question was not in the possession of nor under the control of the prosecution, and as it was not within the power of the state to produce it at the trial, we are inclined to the opinion that it was not error to receive secondary evidence of its contents after proof duly made of its existence and execution. Mr. Wharton, in his work on Criminal Evidence (8th Ed., § 216), says: "In criminal issues, the fact that the indictment charges the defendant with stealing or in any other way misappropriating a particular document is a sufficient notice to the defendant to produce the document; and under such circumstances parol evidence of the document is admissible without due notice to produce. Nor is it necessary that the indictment should aver the loss or destruction of the document. The same rule has been applied, under an indictment for administering an unlawful oath, to enable the prosecution to prove by parol the paper from which the oath was read, without notice to produce the paper."

Again, it is contended the evidence was wholly insufficient to warrant a conviction of defendant Shotts. It was admitted upon the trial that he was the president of the La Crosse Lumber & Grain Company. It was. not shown, however, that he was present at any meeting of the parties preliminary to the making of the unlawful agreement. He did not sign the same, and it is not shown he had any knowledge of the unlawful agreement, or in any way actively participated in the matter. Neither is it shown the agreement was signed by the corporation of which he was the president. The evidence was therefore utterly insufficient to connect him with the guilty transaction or to sustain a conviction against him.

Other errors are assigned; but, as they are such as will probably not recur upon a further trial, they need not be considered. It follows the judgment must be reversed, with directions to grant the defendant Dreany a new trial and to discharge defendant Shotts. It is so ordered. All the justices concurring.

(65 Кап. 131) ATCHISON, T. & S. F. RY. CO. v. KINGSCOTT.

(Supreme Court of Kansas, Division No. 1. June 7, 1902.)

INJURY TO EMPLOYE-CARE OF MASTERINSPECTION.

1. It is the duty of a railway company to its employés engaged in emptying oil from barrels by the use of compressed air to provide barrels that are reasonably sound and in a safe condition for such use, and also to use due care in inspecting the condition of the barrels before they are filled with oil.

2. Evidence that the care used in inspection is that usually exercised by a railway company is not conclusive upon the proposition that due care has been used by the company.

3. The duties of inspection and of furnishing its employés safe instrumentalities to carry on its operations devolves upon the company itself, and those who perform these duties for the company represent it, and for their negligence the company is responsible under the rule of the common law.

JOHNSTON, J. This was an action by John C. Kingscott against the Atchison, Topeka & Santa Fé Railway Company to recover damages for personal injuries resulting from the explosion of an oil barrel. Kingscott was employed by the railway company in an oil house at Argentine, and while emptying coal oil from a barrel into a tank by means of compressed air pressure the barrel burst, and portions of it struck him upon the face and body, destroyed an eye and inflicted other severe injuries. In his petition he alleged that the railway company was negligent in furnishing an old and defective barrel, in failing to properly inspect the barrel before it was filled with oil, in not warning him of the danger of emptying barrels by the dangerous agency of air pressure, and in failing to furnish him with a safe appliance for emptying the barrels. The railway company answered by alleging that the injuries sustained by Kingscott were the result of his own want of care in emptying the barrels, and were not caused by the negligence of the company. In submitting the case to the jury the court eliminated the question of the negligence of the company in furnishing an unsafe appliance for emptying oil barrels, and for failing to warn Kingscott of the danger of using compressed air. The questions submitted to the jury were, did the company provide a defective barrel, and did it properly inspect the barrel so as

to ascertain its fitness for the use to which it was put, was the flow of oil obstructed by burlap or other foreign substance in the barrel, and was Kingscott himself negligent in failing to properly regulate the flow of oil from the barrel? It appears that oil was emptied from barrels into the tank by means of air pressure, the maximum being SO pounds to the square inch. On the pipes by which the reservoir was attached to the barrel were valves to regulate the pressure, and on the wall near by was a gauge which registered the amount of pressure being used. The process is to bore a hole in the side of a barrel and connect it with the tank by means of a rubber tube. Another hole is bored into the head of the barrel, which is connected with an air reservoir by a pipe, and the pressure of the air forces the oil out of the barrel and into the tank. In this instance the plaintiff had made the connections, and the greater part of the oil had been emptied out of the barrel by this method, when Kingscott tipped the barrel up so all the oil might flow out, and immediately the explosion occurred from which the injuries resulted. One of the contentions of the plaintiff was that there was burlap and other foreign substances in the barrel which obstructed the flow of the oil, and when the air pressure was applied the barrel necessarily burst. The jury found that the explosion was not caused by the negligence of Kingscott by turning too much air into the barrel, or in failing to properly regulate the air pressure, but that it was caused by the stoppage of the outlet for the oil and the defective head of the barrel. Among other matters, the jury found that Kingscott was only applying from 5 to 20 pounds of pressure just prior to the explosion, and that that was sufficient to accomplish the purpose. It was also found that the barrel appeared to be sound and in good order before the explosion occurred, and that its unsoundness could have been discovered by a pressure test. The jury further answered that they could not definitely determine what the obstruction to the outlet was which caused the explosion.

The main contention of the railway company is that the charge of negligence was not sustained by the testimony. It is argued that Kingscott understood the use of compressed air, and had large experience in its application; that a gauge was furnished which indicated the amount of pressure, and, as he had control of the valves, he could regulate the air pressure, and was therefore responsible for the excess of pressure which caused the explosion. The trial court having taken from the jury the question of the condition of the compressed air appliances, the verdict rests only on the negligence of the company in providing a defective and insufficient barrel, and one which contained something which clogged the outlet for oil, and thus caused the explosion and the injury.

We think the testimony tends to show negligence of the railway company, and that it is

sufficient to sustain the verdict. It was an old secondhand barrel which was provided, but the fact that it had been previously used does not necessarily show that it was unfit for further use. There is proof tending to show that the barrel was unsound, that is, that its head was somewhat decayed and defective, and some of the testimony tends to show that the outlet was obstructed by some foreign substances. As compressed air is a dangerous agency to use in emptying barrels, it was highly important that barrels should be provided to withstand the pressure, and which contained nothing that would obstruct the outflow. According to some of the testimony, an obstruction to the outflow renders the process dangerous where only a few pounds of pressure are used. The maximum pressure in the reservoir was 80 pounds, and, though regulated to some extent by the valve, a witness stated that the air quickly equalized when the outflow was clogged, and that soon the pressure in the barrel would be increased until it would be equal to the pressure in the reservoir. Whether the company exercised care suitable to the exigencies of the situation in testing the sufficiency of the barrels was a proper question for the determination of the jury. In view of the danger arising from a stoppage of the outflow, it would seem to have been the duty of the company in using old wooden barrels to examine the inside of them, and see whether they contained anything that would obstruct the flow of oil or air. Testimony was offered by Kingscott, but refused by the court, to the effect that it is practicable to inspect the inside of barrels, and that brewers do so by putting a light in the barrels, and are thus able to discover whether any foreign substance is in them, and to remove it when found. This would seem to be a proper precaution to take where so dangerous an agency as compressed air is used in emptying barrels. The fact that such an inspection may not have been employed by the 'company, or that it may not be used among railroad companies, does not prove that the failure to make it is not negligence. As was said by Justice Brewer in Railway Co. v. Haley, 25 Kan. 64: "It may often be the duty of the courts to pronounce conduct negligent, and grossly so, although sanctioned by the custom of the road and the rules of the company, and forbidden by no statute." See, also, Railway Co. v. Holley, 30 Kan. 474, 1 Pac. 130, 554; Dougherty v. Railway Co., 128 Mo. 3S, 30 S. W. 317, 149 Am. St. Rep. 536; Railway Co. v. McDaniels, 107 U. S. 454, 2 Sup. Ct. 932, 27 L. Ed. 605; Carlson v. Coke Co., 19 Wash. 473, 53 Pac. 725; Railway Co. v. Weems (Ala.) 12 South. 186; Martin v. Railway Co., 94 Cal. 326, 29 Pac. 645; Railway Co. v. Warner (Tex. Civ. App.) 36 S. W. 118.

No error was committed by the court in

declining to instruct the jury as to whether the handling of oil was to be regarded as within the hazards peculiar to the operations of a railroad, and as to whether the company was responsible to Kingscott for the negligence of a co-employé. The plaintiff below was not asking for the protection of the fellow servant act. The duty of inspection and of furnishing safe instrumentalities for its employés devolved upon the company itself, and those who performed those duties represented the company, and for their negligence the company is liable under the rule of the common law. Railroad Co. v. Seeley, 54 Kan. 21, 37 Pac. 104; Walker v. Gillett, 59 Kan. 214, 52 Pac. 442. The railway company asked for the submission of a number of special questions, which were refused. An examination of the questions submitted and refused showed that the trial court fairly exercised its discretion in this respect, and submitted questions on the material and controlling issues of the case. Most of the questions refused were not material, and while some of them could have been given without error they were not so material as to make their refusal a ground of reversal. The findings made are supported by sufficient testimony, and appear to sustain the general verdict.

The judgment will be affirmed. All the justices concurring.

WALLER v. HAMER.

(65 Kan. 168)

(Supreme Court of Kansas, Division No. 2. June 7, 1902.)

CORPORATIONS-ACTION AGAINST STOCKHOLD

ERS-PARTIES.

The mode of procedure provided in chapter 10, Laws 1898, to collect from the stockholders a judgment previously obtained against the corporation, is in its nature an equitable proceeding, and all stockholders within the jurisdiction of the court must be brought into the action to the end that the entire debts of the corporation may be adjusted, and assessments made against the stockholders to satisfy such debts, and that the court may also adjust these liabilities between the stockholders, and award to each such relief as may appear just.

(Syllabus by the Court.)

Error from district court, Morris county; O. L. Moore, Judge.

Action by Henry T. Hamer, receiver, against W. F. Waller. Judgment for plaintiff. Defendant brings error. Reversed.

Argued before SMITH, GREENE, and POLLOCK, JJ.

Humphrey & Humphrey and John Maloy, for plaintiff in error. M. B. Nicholson, W. J. Pirtle, and D. H. Brown, for defendant in error.

GREENE, J. The Council Grove Investment Company was a business corporation other than a railway or bank. On March 9, 1897, the Farmers' & Drovers' Bank recov

ered a judgment against it for $6,265.28, in the district court of Morris county, and caused an alias execution to issue to the sheriff of said county against the property of the corporation, which was returned on the 1st day of March, 1899, nulla bona. One A. W. Hickman also recovered a judgment against said corporation in said court for $2,580.43. On March 18, 1899, on the application of the Farmers' & Drovers' Bank, the district court of Morris county appointed the defendant in error, Henry T. Hamer, receiver of the debtor corporation to close up its affairs. The receiver commenced this action in the district court of Morris county against W. F. Waller, as a stockholder, to recover his unpaid subscription and statutory liability to satisfy such judgments. The defendant filed his answer and plea in abatement, alleging, among other facts, that he had a good and meritorious defense to the cause pleaded in the petition, but that he should not be compelled to plead it for the reason that certain other persons (giving their names and number of shares owned by each) were stockholders in said corporation, and had not paid into the corporation the full par value of their stock or their statutory liability; that the receiver should not be permitted to further prosecute the action against him until all the stockholders were brought into court, to the end that a final ascertainment of the debts of the corporation and an adjustment and settlement of the liabilities of the stockholders to the corporation and as between themselves might be had. To this plea in abatement the plaintiff demurred, which demurrer was sustained. Thereafter, upon leave of court, the defendant demurred to the petition for the reasons: (1) That the plaintiff had no legal capacity to institute and maintain the present action; (2) that the petition did not state facts sufficient to constitute a cause of action against the defendant; (3) that there is a defect of parties plaintiff; (4) that there is a defect of parties defendant. This demurrer was overruled, and thereafter the defendant answered. Trial was had, and judgment rendered for plaintiff, from which the defendant prosecutes error to this court.

The important question in this case is, should the demurrer to the plea in abatement have been sustained? Prior to the enactment of chapter 10, Laws 1898, the creditor of a business corporation, other than a railway or bank, might proceed against the individual stockholders only (1) by motion after judgment and execution against the corporation returned nulla bona; (2) by action after dissolution, either by expiration of time, judgment of dissolution, or suspension of business for more than one year, as provided in sections 32, 46, Corp. Act 1868. Chapter 10 of the Laws of 1838 repealed said sections 32 and 46, and substituted therefor sections 14 and 15, as follows:

"If any execution shall have been issued against the property or effects of a corpora

tion, except a railway or a religious or char. itable corporation, and there cannot be found any property upon which to levy such execution, such corporation shall be deemed to be insolvent, and upon application to the court from which said execution was issued, or to the judge thereof, a receiver shall be appointed, to close up the affairs of said corporation. Such receiver shall immediately institute proceedings against all stockholders to collect unpaid subscriptions to the stock of such corporation, together with the additional liability of such stockholders equal to the par value of the stock held by each. All collections made by the receiver shall be held for the benefit of all creditors, and shall be disbursed in such manner and at such times as the court may direct. Should the collections made by the receiver exceed the amount necessary to pay all claims against such corporation, together with all costs and expenses of the receivership, the remainder shall be distributed among the stockholders from whom collections have been made, as the court may direct; and in the event any stockholder has not paid the amount due from him the stockholders making payment shall be entitled to an assignment of any judgment or judgments obtained by the receiver against such stockholder, and may enforce the same to the extent of his proportion of claims paid by them."

"The stockholders of every corporation, except railroad corporations or corporations for religious or charitable purposes, shall be liable to the creditors thereof for any unpaid subscriptions, and in addition thereto for an amount equal to the par value of the stock owned by them, such liability to be considered an asset of the corporation in the event of insolvency, and to be collected by a receiver for the benefit of all creditors."

It will be observed that an entirely different remedy is provided by the latter statute. It provides, substantially, that upon the return of an execution unsatisfied a receiver may be appointed; the corporation is deemed to be insolvent; its affairs are to be closed up by the receiver; and he is also required to institute proceedings against all stockholders to collect unpaid subscriptions on capital stock, together with the statutory liability upon the same. These collections may be held by him as a fund for the benefit of all creditors, such fund to be disbursed as the court may direct. If the amount collected exceeds the debts of the corporation and expenses incident to the receivership, the surplus fund is to be distributed by the court equitably among the shareholders from whom collections have been made, and, as a means of saving and adjusting the rights of the stockholders among themselves and against each other, where one or more has paid an undue proportion of the indebtedness of the corporation, such stockholder is entitled to an order of the court assigning any judgment obtained by the receiver against a

stockholder or stockholders from whom collections have failed. There exists no other statute by which the creditor of an insolvent or dissolved corporation may proceed against its stockholders. It follows, therefore, that if a creditor desires to make a stockholder respond for the debts of the corporation he must proceed against him in the mode thus prescribed and no other.

The two creditors reduced their claims to judgments against the insolvent corporation, and caused executions to issue thereon against its property, which were returned nulla bona. Thereafter one or both applied to the court for the appointment of a receiver. Up to this point all proceedings were in conformity with the provisions of chapter 10. Laws 1898. This action was then brought by the receiver against one stockholder to recover not only his unpaid subscription, but also what is generally known as his statutory liability, which, by the provisions of said act, is made a part of the assets of the corporation, and recoverable by the receiver. The facts contained in the plea in abatement, which for the purpose of the demurrer are taken as true, are that other stockholders (whose names were given) had not paid into the corporation the par value of the stock owned and held by them, and had paid none of their so-called statutory liability. It is clear that the statute quoted cannot be conveniently and adequately carried out unless all the stockholders, or at least all who can be brought within the jurisdiction of the court, are joined as defendants in one proceeding instituted by the receiver. If, for example, a fund is collected from the stockholders in excess of the amount required to pay the debts, and the stockholders have been sued in separate suits, it would require other suits to be brought by each stockholder from whom collections had been made, and who believed himself entitled to a share in the distribution of the surplus fund, to establish his right to such share. If a portion of such fund had been collected out of court upon assessments made by the receiver, and a portion by suit, and there remained an excess to return to the stockholders, the court could not make such a distribution until it had been judicially ascertained who were entitled to such distribution, and in what proportion. This would necessitate fresh suits between all contributing stockholders, whether the collections had been made in or out of court, for the purpose of establishing rights and determining adverse claims to the fund.

It is argued by defendant in error that this procedure cannot be adopted, in view of the decisions of this court in Abbey v. Dry Goods Co., 44 Kan. 415, 24 Pac. 426, and Howell v. Bank, 52 Kan. 133, 34 Pac. 395, where it is held that the liabilities of stockholders to a creditor of a stockholder are several, and not joint. These decisions are a correct interpretation of the law of pro

cedure as it stood at that time; but, as suggested, the statute which governed the procedure when those decisions were made has been repealed, and a mode adopted which authorizes the joining of all stockholders in one action. While the liability of the several stockholders to the creditor of a corporation is still several, under the statute quoted the receiver must proceed against them jointly.

This act provides a complete system for collecting the assets and paying the debts of an insolvent corporation, and of adjusting the liabilities of the stockholders between themselves. To do this the receiver must bring in all stockholders that are within the jurisdiction of the court, that in one proceeding the court may ascertain and determine the indebtedness of the corporation, the amount each stockholder should pay, and, if one has paid more than his proportion, award him such relief against the other stockholders as may appear just. The receiver, having failed to comply with this plain statutory requirement, the demurrer to the plea in abatement should have been overruled.

One other question is argued by counsel for plaintiff in error which may arise upon a future trial. It is contended that the act of 1898, as applied to the facts in this case, is retroactive in its operation, and impairs the obligation of the contract sued on in this case. Suffice it to say that as to the plaintiff in error it does not impair his obligation or deprive him of any right he had prior to its passage.

For the reasons stated, the judgment of the court below is reversed and the cause remanded. All the justices concurring.

(65 Kan. 125)

STATE v. GOETZ et al. (Supreme Court of Kansas, Division No. 1. June 7, 1902.)

CRIMINAL LAW-PRELIMINARY EXAMINATION -INFORMATION-COMPLAINT-VOLUN

TARY APPEARANCE.

1. A preliminary examination, under the provisions of article 5 of the Criminal Code, which does not result in a finding by the examining magistrate that there is probable cause to believe the prisoner guilty of the offense charged, will not authorize the county attorney to file an information against such accused, or the court in proceeding to trial upon an information so filed, when the same is attacked by a plea in abatement.

2. A justice of the peace has no jurisdiction to try or sentence one for an offense without a complaint in writing has been filed before him charging such offense.

3. The voluntary appearance of one before a justice of the peace, and his plea of guilty to an offense, without any written complaint having been filed, confers no jurisdiction upon such justice to render judgment against such a one; and a judgment so rendered does not constitute a bar to a subsequent prosecution for an offense growing out of the same facts. (Syllabus by the Court.)