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In Code, § 1824, it is provided that “no fraternal association . . . shall issue any certificate of membership, less the beneficiary under said certificate shall be the husband, wife, relative, legal representative, heir, or legatee of such member." The plaintiff was the niece of the first wife of the father of the deceased member, deceased being the issue of the second wife;

McClure v. Johnson, 56 Iowa, 620, 10 N. and the contention of appellant is that thereW. 217. fore plaintiff was a "relative" of the de

The plaintiff herein was not related by af- ceased, under the statutory language. Confinity to the insured. ceding that the term "relative" is to be extended to cover relatives by marriage as well as by blood, we are still unable to reach the conclusion that the plaintiff was a relative of deceased. During the life of the first wife, the father of deceased was the uncle by marriage of the plaintiff, and, perhaps, after the death of the first wife, the father of deceased was still her uncle by affinity. Simcoke v. Grand Lodge, A. O. U. W. 84 Iowa, 383, 387, 15 L. R. A. 114, 51 N. W. 8. But there was no relationship by either blood or affinity between the plaintiff and the deceased, the son of her uncle by marriage by his second wife. The general proposition seems to be this: That relationship by affinity is not created between the blood relatives on either side of the parties to the marriage relation. Chinn v. State, 47 Ohio St. 575, 11 L. R. A. 630, 26 N. E. 986; Waterhouse v. Martin, Peck (Tenn.) 374, 389; Winchester v. Hinsdale, 12 Conn. 88, 94; 1 Bouvier, Law Dict. Affinity. It appears, then, that in no legal sense was the plaintiff a relative of the deceased member. They might, perhaps, be said to be connections by marriage, but they were not relatives by marriage.

The argument of counsel for appellant is, however, that, although no recognized legal relationship existed between them, the statute should be broadly construed as including all persons who by common understanding are recognized as relatives. But we cannot McClain, J., delivered the opinion of the properly give to the words used in the statcourt: ute any other meaning than their true legal meaning. It must be presumed that the legislature intended to use the terms employed in the statute with accuracy and definiteness, and not with indefiniteness and uncertainty. Furthermore, there is nothing in the record, or within our judicial knowledge, to justify us in saying that, according to common use or understanding, the plaintiff and deceased were related.

Counsel also urge that the use of the word "legatee" indicates a purpose on the part of the legislature to permit certificates to be made to any beneficiary whom the member shall see fit to name, because, as anyone may be made a legatee, the member might, by making a will in favor of one not a relative,

Messrs. Springer & Smith, for appellee: The laws of the order and the statutes of the state enter into and become a part of the contract of insurance.

Wendt v. Iowa L. of H. 72 Iowa, 682, 34 N. W. 470.

A member has no power to designate by will one outside of the class named in the certificate.

See title Affinity, in 1 Am. & Eng. Enc. Law, 2d ed. p. 911, also title Relative, 24 Am. & Eng. Enc. Law, 2d ed. p. 278; Chinn v. Ohio, 11 L. R. A. 630, note, 47 Ohio St. 575, 26 N. E. 986; Waterhouse v. Martin, Peck (Tenn.) 390; Kohler v. Centennial Mut. L. Ins. Co. 66 Iowa, 325, 23 N. W. 687. If a beneficiary is designated who does not belong to the class of persons enumerated by statute and the laws of the order, the insurance becomes payable to those who would have been entitled to it in the absence of any designation.


Schmidt v. Northern Life Asso. 112 Iowa, 41, 51 L. R. A. 141, 84 Am. St. Rep. 323, 83 N. W. 800; Byram v. Sovereign Camp, W. W. 108 Iowa, 440, 75 Am. St. Rep. 265, 79 N. W. 144; 3 Am. & Eng. Enc. Law, 2d ed. p. 960; Norwegian Old People's Home Soc. v. Wilson, 176 Ill. 94, 52 N. E. 41: Alexander v. Parker, 144 Ill. 355, 19 L. R. A. 187, 33 N. E. 183; Palmer v. Welch, 132 Ill. 141, 23 N. E. 412; Rindge v. New England Mut. Aid Soc. 146 Mass. 286, 15 N. E. 628; Newman v. Covenant Mut. Ins. Asso. 76 Iowa, 56, 1 L. R. A. 659, 14 Am. St. Rep. 196, 40 N. W. 87; Britton v. Supreme Council, R. A. 46 N. J. Eq. 102, 19 Am. St. Rep. 376, 18 Atl. 675; Niblack, Ben. Soc. 2d ed. §§ 13, 136, 158, 177; Article entitled Rights of beneficia ries erroneously or falsely described in benefit society certificates, 57 Cent. L. J. 383.

The certificate was taken by one Daniel J. Bantz, benefit payable to plaintiff. On the death of the member, plaintiff brought action against defendant, and intervener, father of the deceased member, as administrator of his estate, and also as assignee of the mother of deceased, who, under the provisions of the by-laws of the association, would be entitled to the proceeds in preference to the father, made claim to such proceeds as against the plaintiff. The defendant does not resist payment of the sum named in the certificate, and the only question for decision in the lower court was as to which of the two claimants was entitled to the proceeds.

support a certificate naming such person as beneficiary. But the statute is explicit in limiting the authority of such associations as to the persons who may be entitled to the benefits of certificates issued, and we have no power to enlarge the statute to cover persons not thus designated. If the deceased member had made a will in favor of the plaintiff, then the plaintiff might have been the beneficiary in the certificate; but he did not do so, and it seems to us this is an end to the argument.

Plaintiff, then, not being one of the persons who by statute may be made beneficiaries in such a certificate, it follows that she was not entitled to the proceeds of the certificate. As the association does not resist

STATE of Kansas, Appt.,


Charles M. BOWLES.


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payment of the claim, we have no occasion to elaborate the question as to whether the intervener is entitled to the proceeds. But it seems to be well settled that, where the beneficiary named is incapable of taking the proceeds under the law, the administrator of the deceased person can recover the proceeds, just as he might if no beneficiary had been named. Schmidt v. Northern Life Asso. 112 Iowa, 41, 51 L. R. A. 141, 84 Am. St. Rep. 323, 83 N. W. 800, and cases therein cited.

(February 11, 1905.)

PPEAL by the State from an order of A the District Court for Wyandotte County quashing an indictment charging defendant with offering to accept a bribe. Affirmed.

The facts are stated in the opinion. Messrs. C. C. Coleman, Attorney General, and Jay F. Close, for appellant: The attorney general has authority to sign

Headnotes by BURCH, J.

NOTE. As to criminality of solicitation to crime which is not consummated, including

solicitation of bribe, see also note to State v. Butler, 25 L. R. A. 434.

The decree that plaintiff is not entitled to the fund, on the grounds that she is not related by consanguinity or affinity, and that the intervener is the beneficiary entitled to the fund, is affirmed.

indictments found by a grand jury. The powers belonging to the office of attorney general at common law are retained, in addition to those conferred by statute.

3 Am. & Eng. Enc. Law, 2d ed. p. 479; People v. Miner, 2 Lans. 396; Hunt v. Chicago & D. R. Co. 20 Ill. App. 282; Craft v. Jackson County, 5 Kan. 521; Atchison, T. & S. F. R. Co. v. State, 22 Kan. 1; Barber County v. Smith, 48 Kan. 331, 29 Pac. 565.

Under his general authority as attorney general, he may, in his discretion, institute prosecutions in any court he may choose.

The proceedings before a grand jury are as much a part of a prosecution as the proceedings in the trial court.

23 Am. & Eng. Enc. Law, 2d ed. p. 268; Choen v. State, 85 Ind. 210; Territory v. Harding, 6 Mont. 327, 12 Pac. 750; Territory v. Layne, 7 Mont. 225, 14 Pac. 705; State ex rel. Nolan v. District Court, 22 Mont. 25, 55 Pac. 916.

When power is placed in the hands of an officer, all incidental powers necessary for the due and efficient exercise of the power expressly granted are conferred by impli-. cation.

Throop, Pub. Off. § 543.

Where acts are of an official nature, or require the concurrence of official persons, a presumption arises in favor of their due execution.

Broom, Legal Maxims, 5th ed. 637; 22 Am. & Eng. Enc. Law, 2d ed. p. 1267; Mechem, Pub. Off. § 525; Throop, Pub. Off. § 558; State v. Farrar, 41 N. H. 53; San Luis Obispo County v. Hendricks, 71 Cal. 242, 11 Pac. 682; Wolffe v. State, 79 Ala. 201, 58 Am. Rep. 590; Lowell v. Flint, 20 Me. 404;

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Reg. v. Taylor, 1 Fost. & F. 511; Smith v.
Com. 54 Pa. 209, 93 Am. Dec. 686; Com. v.
Willard, 22 Pick. 476.

Miller v. Lewis, 4 N. Y. 555; Choen v. State, | 1093; 1 Bishop, Crim. Law, ¶¶ 760, 762, 764;
85 Ind. 210; State v. Thompson, 64 Tex. 690;
Tierney v. Cornell, 3 Neb. 267; Ward v.
Barrows, 2 Ohio St. 241; Coombs v. Lane,
4 Ohio St. 112; Valley Twp. v. King Iron
Bridge & Mfg. Co. 4 Kan. App. 622, 45 Pac.
660; State v. Nield, 4 Kan. App. 626, 45 Pac.
623; Smith v. Payton, 13 Kan. 364; Rex v.
Verelst, 3 Campb. 432; M'Gahey v. Alston,
2 Mees. & W. 206; Faulkner v. Johnson,
11 Mees. & W. 581; M'Mahon v. Lennard,
6 H. L. Cas. 970; Nofire v. United States,
164 U. S. 657, 41 L. ed. 588, 17 Sup. Ct.
Rep. 212.

When all is done toward the commission of a crime that the nature thereof will admit of, except its actual perpetration, an attempt to commit a crime has been made.

2 Wharton, Crim. Law, § 1857; State v. Ellis, 33 N. J. L. 102, 97 Am. Dec. 707; 1 Bishop, New Crim. Law, chap. 51.

An offer by a public officer to receive a bribe is a punishable offense at common law. 2 Wharton, Crim. Law, § 1858.

Messrs. Hale & Maher, for appellee: There is a marked difference between an intent to commit a crime and an attempt to commit one.

No one can be convicted in Kansas except for such crimes as are defined by statute, there being no common-law offense.

State v. Young, 55 Kan. 349, 40 Pac. 659. In order to constitute an attempt to commit an indictable offense, some physical act must be done towards its commission, and mere solicitation, no matter how urgent or long persisted in, is not sufficient.

State v. Frazier, 53 Kan. 87, 42 Am. St. Rep. 274, 36 Pac. 58; Thompson v. People, 96 Ill. 161; 2 Bishop, Crim. Proc. ¶¶ 86-92; Re Lloyd, 51 Kan. 501, 33 Pac. 307; State v. Russell, 64 Kan. 798, 68 Pac. 615; Hicks v. Com. 86 Va. 223, 19 Am. St. Rep. 891, 9 S. E. 1024; Com. v. Clark, 6 Gratt. 675; 1 Wharton, Crim. Law, 9th ed. ¶ 192.

An attempt to commit a crime is compounded of two elements: (1) The intent to commit it; and (2) a direct ineffectual act done towards its commission.

Where the solicitation is not in itself a substantive offense, or where there has been no progress made towards the consummation of the independent offense attempted, the question whether the solicitation is by itself the subject of penal prosecution must be answered in the negative.

1 Wharton, Crim. Law, 9th ed. 179; People v. Gardner, 73 Hun, 66, 25 N. Y. Supp. 1072; Stabler v. Com. 95 Pa. 318, 40 Am. Rep. 653.

Merely soliciting one to do an act is not an attempt to do that act.

Rex v. Butler, 6 Car. & P. 368; Smith v. Com. 54 Pa. 209, 93 Am. Dec. 686; Kelly v. Com. 1 Grant Cas. 484; Reg. v. Williams, 1 Car. & K. 589; Reg. v. Lewis, 9 Car. & P. 523; Reg. v. St. George, 9 Car. & P. 483.

The provision of the statute (¶ 5540, Gen. Stat. 1901), requiring that each indictment must be signed by the prosecuting attorney, is mandatory, as much so as the provision requiring that it shall be indorsed, "A true bill," with the name of the foreman signed thereto; and a failure on the part of the foreman to so indorse and sign an indictment is a fatal omission.

State v. Joiner, 19 Mo. 224; Teas v. State, 7 Humph. 174; Hite v. State, 9 Yerg. 198; State v. Soragan, 40 Vt. 450; Oliver v. Com. 95 Ky. 372, 25 S. W. 600; Strange v. State, 110 Ind. 354, 11 N. E. 357; State v. Cooper, 2 Blackf. 226; State v. Bowman, 103 Ind. 69, 2 N. E. 289; Bird v. State, 103 Tenn. 343, 52 S. W. 1076; United States v. Helriggle, 3 Cranch, C. C. 179, Fed. Cas. No. 15,344.

An indictment must be signed by the prosecuting attorney.

Jackson v. State, 4 Kan. 150; State v. Brown, 63 Kan. 262, 65 Pac. 213; Teas v. State, 7 Humph. 174; Hite v. State, 9 Yerg. 198; State v. Soragan, 40 Vt. 450; State v. | Tannahill, 4 Kan. 117; State v. Beddo, 22 Utah, 432, 63 Pac. 96; Shattuck v. Chandler, 40 Kan. 516, 10 Am. St. Rep. £27, 20 Pac. 225; Sutherland, Stat. Constr. ¶¶ 333-454.

Code, 3888; 2 Bishop, Crim. Proc. 71; Uhl v. Com. 6 Gratt. 706; Mc Dade v. People, 29 Mich. 50; Bouvier, Law Dict. Attempt; People v. Murray, 14 Cal. 160; United States v. Savaloff, 3 Sawy. 311, Fed. Cas. No. 16, 226; United States v. Stephens, 8 Sawy. 116, 12 Fed. 52; Cornwell v. Fraternal Acci. Asso. 6 N. D. 201, 40 L. R. A. 437, 66 Am. St. Rep. 601, 69 N. W. 191; Mulligan v. People, 5 Park. Crim. Rep. 105; State v. Clarissa, 11 Ala. 57; Hicks v. Com. 86 Va. 223, 19 Am. St. Rep. 891, 9 S. E. 1024; Stabler v. Com. 95 Pa. 318, 40 Am. Rep. 653; State v. Butler, 8 Wash. 194, 25 L. R. A. 434, 40 Am. St. Rep. 900, 35 Pac.

When one section of a statute treats solely and especially of a matter, it will prevail, as to that matter, over sections in which only incidental references are made thereto.

Long v. Culp, 14 Kan. 413; Re Donnelly, 30 Kan. 191, 1 Pac. 648; Shattuck v. Chandler, 40 Kan. 520, 10 Am. St. Rep. 227, 20 Pac. 225; South Carolina v. Stoll, 17 Wall. 425, 21 L. ed. 650; Nelden v. Clark, 20 Utah, 382, 77 Am. St. Rep. 917, 59 Pac. 524.

Burch, J., delivered the opinion of the court:

Charles M. Bowles was indicted by a grand


jury of Wyandotte county. The indictmenting attorney; and when the grand jury re-
charged that the defendant did unlawfully, turn any indictment into court the judge
feloniously, wickedly, and corruptly offer must examine it, and if the foreman has
and promise to a person named that he neglected to indorse it, 'A true bill,' with
would give his vote, opinion, judgment, and his name signed thereto, or if the prosecut-
action as a member of the board of education ing attorney has neglected to sign his name,
of the city of Kansas City in favor of a cer- the court must cause the foreman to in-
tain matter on condition that he be paid a dorse, or the prosecuting attorney to sign,
sum of money as a bribe and reward for it, as the case may require, in the presence
so doing, and did unlawfully, feloniously, of the jury." In the case of State v. Nulf,
and corruptly seek and solicit from the 15 Kan. 404, the following language is used:
party named the payment of the sum of mon- “Under the laws of Kansas the 'prosecuting
ey stated as a reward and bribe unlawfully attorney' is always the 'county attorney'
and corruptly to be given to influence him in (Gen. Stat. 283, 284, §§ 135–137). That is,
the giving of his opinion, vote, judgment, every criminal action prosecuted in the name
and action. The indictment concluded and of the state must be prosecuted by the coun-
was signed as follows: "And the said grand ty attorney, who is the public prosecutor.
jurors do present that, by the means and acts Therefore, for the purpose of prosecuting
aforesaid, the said Charles M. Bowles did criminal actions, the prosecuting attorney
then and there unlawfully, feloniously, and and the county attorney is one and the
corruptly attempt to commit the crime of un- same person." And in the case of United
lawfully, feloniously, and corruptly accept- States v. Weld, 1 Kan. Dassler's ed., 21 Ap-
ing and receiving money from the said px., decided in 1860 by the United States dis-
George E. Rose under an understanding and trict court for the first judicial district of
agreement which he, the said Charles M. the territory of Kansas, the syllabus reads:
Bowles, then and there unlawfully, feloni- "When one person or class of persons is
ously, and corruptly attempted to make and named in a power of attorney, or an act of
enter into, that the vote, opinion, and judg- the lawmaking power, as being authorized to
ment of the said Charles M. Bowles should do a certain thing therein named, all other
thereby be corruptly influenced to be cast persons are thereby excluded from doing
and given in favor of the election of the the same thing as effectually as if they were
said George E. Rose as principal and teacher positively forbidden."
in the said public schools, contrary to the
statutes in such case made and provided,
and against the peace and dignity of the
state of Kansas. C. C. Coleman, Attorney
General of the State of Kansas, prosecuting
in Wyandotte County." A motion was made
to quash the indictment on the following
grounds: “(1) The indictment is not signed
by the county attorney, as required by law.
(2) That said indictment is not signed by
the prosecuting attorney of said county, as
required by law. (3) That said indictment
is not signed by any person as attorney
who by law is authorized to sign indictments
in said county. (4) That the facts stated
in such indictment are not sufficient to con-
stitute any offense or crime under the laws
of the state of Kansas." The district court
sustained the motion and quashed the indict-
ment. The state appeals upon a question re-

The attorney general justifies his conduct under § 7271 Gen. Stat. 1901, which provides: "The attorney general shall appear for the state, and prosecute and defend all actions and proceedings, civil or criminal, in the supreme court, in which the state shall be interested or a party; and shall also, when required by the governor or either branch of the legislature, appear for the state and prosecute or defend, in any other court, or before any officer, in any cause or matter, civil or criminal, in which this state may be a party or interested.” In the year 1855 the legislature of the territory of Kansas provided for the election of a district attorney for each district organized for judicial purposes. He was required to appear in each county at the district court and prosecute and defend on behalf of the territory or county all suits, indictments, applications, or motions, civil or criminal, in The essence of the defendant's claim in which the territory or county should be a reference to the form of the indictment is party, and, among other things, to draw, that it can be signed by no officer of the and sign all indictments or other pleadings state except the county attorney of the coun- connected with his office. The same legislaty in which the grand jury sits. While the ture adopted a Code of Criminal Procedure argument is re-enforced from other sources, which made it the duty of the attorney prosits fundamental content is derived from ecuting in the county to attend any grand the Code of Criminal Procedure and two jury whenever required, and aid in various decisions rendered in this state. Section 5540, ways in the conduct of its proceedings; but Gen. Stat. 1901, reads as follows: "Each no reference was made to the matter of sigindictment must be signed by the prosecut-natures to indictments. By an act approved

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February 12, 1858 (Laws 1857-58, chap. 13, | provided that the attorney general, whenp. 195), the territorial legislature changed ever required by the governor or either the system relating to local prosecutors, branch of the legislature, should appear for and created the office of county attorney for the state and prosecute or defend, in any each county organized for judicial purposes. court, or before any officer, in any cause Its incumbent was required to appear in the or matter, civil or criminal, in which the several courts of the county and prosecute state might be a party or interested. The or defend actions, attend the sittings of substance of this act has been preserved the grand jury when required, and draw in all subsequent revisions of the law, and bills of indictment. The law provided that it now appears as § 7271, Gen. Stat. 1901. county attorneys should be elected at the The experience of members of the legislature general election following the session of during territorial times had taught them the legislature; and, of necessity, district at- the necessity of a state government equiptorneys remained in office until the new sys-ped with sufficient power to protect public tem became operative. By another act, ap- rights and redress public injuries throughproved February 12, 1858, the same legis- out the entire state, independent of the atlature changed the Code of Criminal Pro- titude of local authorities who might be cedure, and adopted a provision in reference indifferent, incapable, or even antagonistic. to the manner which indictments should They had suffered from the baleful manifesbe signed, in all respects identical with tations of sectionalism within the state § 5540, Gen. Stat. 1901, already quoted. as well as between different states, and the This act took effect immediately after its purpose was to make the authority of the passage. It is plain, therefore, that the words government felt, through its chief law offi"prosecuting attorney," in the new Code, cer, in every part of its territory, if the were designed to embrace both the district chief executive or either branch of the legattorney who would have authority to pros- islature should determine it to be necessary. ecute until the next general election and The language of the statute indicates that the co attorney, who would then be the intention was to grant plenary power the local prosecutor. to the attorney general to this end, and he was invested with full authority to use all the means afforded by the law to meet the requirements of any situation and fully protect the interests of the state. When directed by the governor or either branch of the legislature to appear and prosecute criminal proceedings in any county, he becomes the prosecuting attorney of that county in those proceedings, and has all he rights that any prosecuting officer there may have, including those of appearing before the grand jury, signing indictments, and pursuing cases to final determination.

During territorial days the attorney general was an official deriving his power and authority from the government of the United States. There was therefore no multiplicity of officers, some one of whom needed to be designated to perform the special duty of signing indictments, to the exclusion of all others. All that was necessary was to provide for the due authentication of true bills returned by the grand jury. The object of the statute was not to confer a special power upon an individual, according to the principle announced in the case of the United States v. Weld, but to protect the legitimacy of a document. To the attorney in charge of the territory's case at the time was assigned this duty. He might be district attorney, with jurisdiction extending over all the counties of a judicial district, or he might be county attorney, with a much more limited range of authority, but the prosecuting attorney, whatever his official title and whatever the scope of his territory, was to sign indictments. Upon its admission into the Union the new state abolished the office of county attorney, and re-tribunal, and pursuing them to final judg turned to the former system of district at- ment on behalf of the state or government, torneys. In 1864 the office of county attorney as by indictment or information." The reawas restored. But the statute of 1858 re- soning of decided cases, involving differing lating to the authentication of indictments states of fact, leads to the same conclusion. has persisted, unmodified, to the present Choen v. State, 85 Ind. 209; Territory v. time. In the organization of the state gov- Harding, 6 Mont. 323, 12 Pac. 750; State ex ernment the office of attorney general was rel. Nolan v. District Court, 22 Mont. 25, 55 created, and by an act approved June 3, Pac. 916, 918. 1861 (Laws 1861, chap. 58, p. 216), it was

In 23 Am. & Eng. Enc. Law, 2d ed. p. 268, there is a fair statement of what is included in the term "prosecute:" "To prosecute is to proceed against judicially. A prosecution is the act of conducting or waging a proceeding in court; the means adopted to bring a supposed offender to justice and punishment by due course of law. It is also defined as the institution or commencement and continuance of a criminal suit; the process of exhibiting formal charges against an offender before a legal

The remark of Mr. Justice Valentine in

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