« AnteriorContinuar »
Messrs. Springer & Smith, for appellee: In Code, § 1824, it is provided that "no
The laws of the order and the statutes of fraternal association . . shall issue the state enter into and become a part of any certificate of membership, the contract of insurance.
less the beneficiary under said certificate Wendt v. Iowa L. of H. 72 Iowa, 682, 34 shall be the husband, wife, relative, legal N. W. 470.
representative, heir, or legatee of such memA member has no power to designate by ber.” The plaintiff was the niece of the first will one outside of the class named in the wife of the father of the deceased member, certificate.
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 deThe plaintiff herein was not related by af- ceased, under the statutory language. Confinity to the insured.
ceding that the term “relative" is to be exSee title Affinity, in 1 Am. & Eng. Enc. tended to cover relatives by marriage as well Law, 2d ed. p. 911, also title Relative, 24 as by blood, we are still unable to reach the Am. & Eng. Enc. Law, 2d ed. p. 278; Chinn conclusion that the plaintiff was a relative v. Ohio, 11 L. R. A. 630, note, 47 Ohio St. of deceased. During the life of the first 575, 26 N. E. 986; Waterhouse v. Martin, wife, the father of deceased was the uncle Peck (Tenn.) 390; Køhler v. Centennial by marriage of the plaintiff, and, perhaps, Mut. L. Ins. Co. 66 Iowa, 325, 23 N. W. 687. after the death of the first wife, the father
If a beneficiary is designated who does not of deceased was still her uncle by affinity. belong to the class of persons enumerated by Simcoke v. Grand Lodge, A. 0. U. W. 84 statute and the laws of the order, the insur-| lowa, 383, 387, 15 L. R. A. 114, 51 N. W. 8. ance becomes payable to those who would But there was no relationship by either have been entitled to it in the absence of any blood or affinity between the plaintiff and the designation.
deceased, the son of her uncle by marriage by Schmidt v. Northern Life Asso. 112 Iowa, his second wife. The general proposition 41, 51 L. R. A. 141, 84 Am. St. Rep. 323, 83 seems to be this: That relationship by afN. W. 800; Byram v. Sovereign Camp, W. finity is not created between the blood relaW. 108 Iowa, 440, 75 Am. St. Rep. 265, 79 tives on either side of the parties to the marN. W. 144; 3 Am. & Eng. Enc. Law, 2d ed. p. riage relation. Chinn v. State, 47 Ohio St. 960; Norwegian Old People's Home Soc. v. 575, 11 L. R. A. 630, 26 N. E. 986; WaterWilson, 176 I11. 94.52 N. E. 41: Alexander v. house v. Martin, Peck (Tenn.) 374, 389; Parker, 144 Ill. 355, 19 L. R. A. 187, 33 N. E. Winchester v. Hinsdale, 12 Conn. 88, 94; 1 183; Palmer v. Welch, 132 Ill. 141, 23 N. E. Bouvier, Law Dict. Affinity. It appears, 412; Rindye v. New England Mut. Aid Soc. then, that in no legal sense was the plaintiff 146 Mass. 286, 15 N. E. 628; Newman v. a relative of the deceased member. They Covenant Mut. Ins. Asso. 76 Iowa, 56, 1 L. might, perhaps, be said to be connections by R. A. 659, 14 Am. St. Rep. 196, 40 N. W. 87; marriage, but they were not relatives by Britton v. Supreme Council, R. A. 46 N. J. marriage. Eq. 102, 19 Am. St. Rep. 376, 18 Atl. 675; The argument of counsel for appellant is, Niblack, Ben. Soc. 2d ed. 88 13, 136, 158, however, that, although no recognized legal 177; Article entitled Rights of beneficia relationship existed between them, the statries erroneously or falsely described in ben- ute should be broadly construed as including efit society certificates, 57 Cent. L. J. 383. 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 The certificate was taken by one Daniel meaning. It must be presumed that the J. Bantz, benefit payable to plaintiff. On legislature intended to use the terms emthe death of the member, plaintiff brought ployed in the statute with accuracy and defiaction against defendant, and intervener, niteness, and not with indefiniteness and unfather of the deceased member, as admin- certainty. Furthermore, there is nothing in istrator of his estate, and also as assignee the record, or within our judicial knowledge, of the mother of deceased, who, under the to justify us in saying that, according to provisions of the by-laws of the association, common use or understanding, the plaintiff would be entitled to the proceeds in prefer- and deceased were related. ence to the father, made claim to such pro- Counsel also urge that the use of the word ceeds as against the plaintiff. The defend- “legatee” indicates a purpose on the part of ant does not resist payment of the sum the legislature to permit certificates to be named in the certificate, and the only ques- made to any beneficiary whom the member tion for decision in the lower court was as shall see fit to name, because, as anyone may to which of the two claimants was entitled be made a legatee, the member might, by to the proceeds.
making a will in favor of one not a relative, support a certificate naming such person as, payment of the claim, we have no occasion beneficiary. But the statute is explicit in to elaborate the question as to whether the limiting the authority of such associations intervener is entitled to the proceeds. But as to the persons who may be entitled to the it seems to be well settled that, where the benefits of certificates issued, and we have beneficiary named is incapable of taking the no power to enlarge the statute to cover per proceeds under the law, the administrator sons not thus designated. If the deceased of the deceased person can recover the promember had made a will in favor of the ceeds, just as he might if no beneficiary had plaintiff, then the plaintiff might have been been named. Schmidt v. Northern Life the beneficiary in the certificate; but he did Asso. 112 Iowa, 41, 51 L. R. A. 141, 84 Am. not do so, and it seems to us this is an end St. Rep. 323, 83 N. W. 800, and cases therein to the argument.
cited. Plaintiff, then, not being one of the per- The decree that plaintiff is not entitled to sons who by statute may be made beneficia the fund, on the grounds that she is not reries in such a certificate, it follows that she lated by consanguinity or affinity, and that was not entitled to the proceeds of the cer- the intervener is the beneficiary entitled to tificate. As the association does not resist the fund, is affirmed.
STATE of Kansas, Appt.,
indictments found by a grand jury. The V.
powers belonging to the office of attorney Charles M. BOWLES.
general at common law are retained, in ad
dition to those conferred by statute. (......Kan......)
3 Am. & Eng. Enc. Law, 2d ed. p. 479;
People v. Miner, 2 Lans. 396; Hunt v. •1. Whenever required by the gover- Chicago < D. R. Co. 20 Ill. App. 282; Craft nor to appear and prosecute crim
v. Jackson County, 5 Kan. 521; Atchison, inal proceedings in any county, the at. T. & S. F. R. Co. v. State, 22 Kan. 1; torney general becomes prosecuting attorney of that county in those proceedings, and as Barber County v. Smith, 48 Kan. 331, 29 such may sign indictments presented by the Pac. 565. grand jury.
Under his general authority as attorney 2. The district court of any county is general, he may, in his discretion, institute obliged to take judicial notice of an prosecutions in any court he may choose. executive order upon the attorney general to
The proceedings before a grand jury are appear and prosecute criminal proceedings there, and such authority need not be ex
as much a part of a prosecution as the propressed on the face of an indictment which ceedings in the trial court. he signs.
23 Am. & Eng. Enc. Law, 2d ed. p. 268 ; 3. The solicitation of a bribe does not Choen v. State, 85 Ind. 210; Territory v.
constitute an attempt to accept or receive Harding, 6 Mont. 327, 12 Pac. 750; Territory a bribe.
v. Layne, 7 Mont. 225, 14 Pac. 705; State 4. The solicitation of a bribe is not
ex rel. Nolan v. District Court, 22 Mont. 25, punishable as & crime by
the laws of
55 Pac. 916. this state.
When power is placed in the hands of an (February 11, 1905.)
officer, all incidental powers necessary for
the due and efficient exercise of the power A PPEAL by the State from an order of expressly granted are conferred by impli- ,
the District Court for Wyandotte cation. County quashing an indictment charging
Throop, Pub. Off, § 543. defendant with offering to accept a bribe.
Where acts are of an official nature, or Affirmed.
require the concurrence of official persons, The facts are stated in the opinion.
a presumption arises in favor of their due Messrs. C. C. Coleman, Attorney Gen
execution. eral, and Jay F. Close, for appellant:
Broom, Legal Maxims, 5th ed. 637; 22 The attorney general has authority to sign Am. & Eng. Enc. Law, 2d ed. p. 1267; Me
chem, Pub. Off. § 525; Throop, Pub. Off. § *[leadnotes by BURCH, J.
558; State v. Farrar, 41 N. H. 53; San Luis Note. -As to criminality of solicitation to Obispo County v. Hendricks, 71 Cal. 242, 11 crime which is not consummated, including solicitation of bribe, see also note to State y.
Pac. 682; Wolffe v. State, 79 Ala. 201, 58 Butler, 25 L. R. A. 434.
Am. Rep. 590; Lowell v. Flint, 20 Me. 404;
Miller v. Lewis, 4 N. Y. 555; Choon v. State, | 1093; 1 Bishop, Crim. Law, 11 760, 762, 764; 85 Ind. 210; State v. Thompson, 64 Tex. 690; Reg. v. Taylor, 1 Fost. & F. 511; Smith v. Tierney v. Cornell, 3 Neb. 267; Ward v. Com. 54 Pa. 209, 93 Am. Dec. 686; Com. v. Barrows, 2 Ohio St. 241; Coombs v. Lane, Willard, 22 Pick. 476. 4 Ohio St. 112; Valley Twp. v. King Iron Where the solicitation is not in itself a Bridge & Mfg. Co. 4 Kan. App. 622, 45 Pac. substantive offense, or where there has been 660; State v. Nield, 4 Kan. App. 626, 45 Pac. no progress made towards the consummation 623; Smith v. Payton, 13 Kan. 364; Rex v. of the independent offense attempted, the Verelst, 3 Campb. 432; M'Gahey v. Alston, question whether the solicitation is by itself 2 Mees. & W. 206; Faulkner v. Johnson, the subject of penal prosecution must be 11 Mees. & W. 581; M'Mahon v. Lennard, answered in the negative. 6 H. L. Cas. 970; Nofire v. United States, 1 Wharton, Crim. Law, 9th ed. 179; Peo164 U. S. 657, 41 L. ed. 588, 17 Sup. Ct. ple v. Gardner, 73 Hun, 66, 25 N. Y. Supp. Rep. 212.
1072; Stabler v. Com. 95 Pa. 318, 40 Am. When all is done toward the commission Rep. 653. of a crime that the nature thereof will admit Merely soliciting one to do an act is not of, except its actual perpetration, an attempt an attempt to do that act. to commit a crime has been made.
Rex v. Butler, 6 Car. & P. 368; Smith v. 2 Wharton, Crim. Law, § 1857; State v. Com. 54 Pa. 209, 93 Am. Dec. 686; Kelly v. Ellis, 33 N. J. L. 102, 97 Am. Dec. 707; 1Com. 1 Grant Cas. 484; Reg. v. Williams, Bishop, New Crim. Law, chap. 51.
1 Car. & K. 589; Reg. v. Lewis, 9 Car. & P. An offer by a public officer to receive a 523; Reg. v. St. George, 9 Car. & P. 483. bribe is a punishable offense at common law. The provision of the statute ( 1 5540, Gen. 2 Wharton, Crim. Law, § 1858.
Stat. 1901), requiring that each indictment Messrs. Hale & Maher, for appellee: must be signed by the prosecu ting attorney,
There is a marked difference between an is mandatory, as much so as the provision intent to commit a crime and an attempt to requiring that it shall be indorsed, "A true commit one.
bill,” with the name of the foreman signed No one can be convicted in Kansas except thereto; and a failure on the part of the for such crimes as are defined by statute, foreman to so indorse and sign an indictthere being no common-law offense.
ment is a fatal omission. State v. Young, 55 Kan. 349, 40 Pac. 659. State v. Joiner, 19 Mo. 224; Teas v. State,
In order to constitute an attempt to com- 7 Humph. 174; Hite v. State, 9 Yerg. 198; mit an indictable offense, some physical act State v. Soragan, 40 Vt. 450; Oliver v. Com. must be done towards its commission, and 95 Ky. 372, 25 S. W. 600; Strange v. State, mere solicitation, no matter how urgent or 110 Ind. 354, 11 N. E. 357 ; State v. Cooper, long persisted in, is not suficient.
2 Blackf. 226; State v. Bowman, 103 Ind. 69, State v. Frazier, 53 Kan. 87, 42 Am. St. 2 N. E. 289; Bird v. State, 103 Tenn. 343, Rep. 274, 36 Pac. 58; Thompson v. People, 52 S. W. 1076; United States v. Helriggle, 3 96 Ill. 161; 2 Bishop, Crim. Proc. 11 86-92; Cranch, C. C. 179, Fed. Cas. No. 15,344. Re Lloyd, 51 Kan. 501, 33 Pac. 307; State v. An indictment must be signed by the prosRussell, 64 Kan. 798, 68 Pac. 615; Hicks v. ecuting attorney. Com. 86 Va. 223, 19 Am. St. Rep. 891, 9 S. Jackson v. State, 4 Kan. 150; State v. E. 1024; Com. v. Clark, 6 Gratt. 675; 1 | Broun, 63 Kan. 262, 65 Pac. 213; Teas v. Wharton, Crimn. Law, 9th ed. | 192.
State, 7 Humph. 174; Hite v. State, 9 Yerg. An attempt to commit a crime is com- 198; State v. Soragan, 40 Vt. 450; State v. pounded of two elements: (1) The intent Tannahill, 4 Kan. 117; State v. Beddo, 22 to commit it; and (2) a direct ineffectual Utah, 432, 63 Pac. 96; Shattuck v. Chandler, act done towards its commission.
40 Kan. 516, 10 Am. St. Rep. 227, 20 Pac. Code, | 3888; 2 Bishop, Crim. Proc. 71; 225; Sutherland, Stat. Constr. || 333–454. Uhl v. Com. 6 Gratt. 706 ; Mc Dade v. Peo When one section of a statute treats solely ple, 29 Mich. 50; Bouvier, Law Dict. At- and especially of a matter, it will prevail, as tempt; People v. Murray, 14 Cal. 160; to that matter, over sections in which only United States v. Savaloff, 3 Sawy. 311, Fed. incidental references are made thereto. Cas. No. 16, 226; United States v. Stephens, Long v. Culp, 14 Kan. 413; Re Donnelly, 8 Sawy. 116, 12 Fed. 52; Cornwell v. Fra 30 Kan. 191, 1 Pac. 648; Shattuck v. Chand. ternal Acci. Asso. 6 N. D. 201, 40 L. R. A. ler, 40 Kan. 520, 10 Am. St. Rep. 227, 20 437, 66 Am. St. Rep. 601, 69 N. W. 191; Pac. 225; South Carolina v. Stoll, 17 Wall. Mulligan v. People, 5 Park. Crim. Rep. 105; 425, 21 L. ed. 650; Nelden v. Clark, 20 State v. Clarissa, 11 Ala. 57; Hicks v. Com. Utah, 382, 77 Am. St. Rep. 917, 59 Pac. 524. 86 Va. 223, 19 Am. St. Rep. 891, 9 S. E. 1024; Stabler v. Com. 95 Pa. 318, 40 Am. Burch, J., delivered the opinion of the Rep. 653; State v. Butler, 8 Wash, 194, 25 court: L. R. A. 434, 40 Am. St. Rep. 900, 35 Pac. Charles M. Bowles was indicted by a grand
jury of Wyandotte county. The indictmenting attorney; and when the grand jury recharged 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 prosecutaction 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 intain 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, 88 135–137). 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 counwas 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 Aping and receiving money from the said px., decided in 1860 by the United States disGeorge 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 The attorney general justifies his constatutes in such case made and provided, duct under $ 7271 Gen. Stat. 1901, which and against the peace and dignity of the provides: “The attorney general shall apstate of Kansas. C. C. Coleman, Attorney pear for the state, and prosecute and deGeneral of the State of Kansas, prosecuting fend all actions and proceedings, civil or in Wyandotte County.” A motion was made criminal, in the supreme court, in which to quash the indictment on the following the state shall be interested or a party; and grounds: "(1) The indictment is not signed shall also, when required by the governor by the county attorney, as required by law. or either branch of the legislature, appear (2) That said indictment is not signed by for the state and prosecute or defend, in any the prosecuting attorney of said county, as other court, or before any officer, in any required by law. (3) That said indictment cause or matter, civil or criminal, in which is not signed by any person as attorney this state may be a party or interested.” In who by law is authorized to sign indictments the year 1855 the legislature of the territory in said county. (4) That the facts stated of Kansas provided for the election of a disin such indictment are not sufficient to con- trict attorney for each district organized for stitute any offense or crime under the laws judicial purposes. He was required to apof the state of Kansas.” The district court pear in each county at the district court and sustained the motion and quashed the indict- prosecute and defend on behalf of the terriment. The state appeals upon a question re- tory or county all suits, indictments, appliserved.
cations, 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 5510, ways in the conduct of its proceedings; but Gen. Stat. 1901, reads as follows: "Each no reference was made to the matter of sig. indictment must be signed by the prosecut- natures to indictments. By an act approved 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 in 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 county attorney, who would then be the intention was to grant plenary power the local prosecutor.
to the attorney general to this end, and During territorial days the attorney gen- he was invested with full authority to use eral was an official deriving his power and all the means afforded by the law to meet authority from the government of the Unit- the requirements of any situation and fully ed States. There was therefore no multi- protect the interests of the state. When plicity of officers, some one of whom need directed by the governor or either branch ed to be designated to perform the special of the legislature to appear and prosecute duty of signing indictments, to the exclu- criminal proceedings in any county, he sion of all others. All that was necessary becomes the prosecuting attorney of that was to provide for the due authentication of county in those proceedings, and has all true bills returned by the grand jury. The the rights that any prosecuting officer there object of the statute was not to confer a may have, including those of appearing special power upon an individual, according before the grand jury, signing indictments, to the principle announced in the case of the and pursuing cases to final determination. United States v. Weld, but to protect the le- In 23 Am. & Eng. Enc. Law, 2d ed. p. gitimacy of a document. To the attorney in 268, there is a fair statement of what is charge of the territory's case at the time included in the term "prosecute:” “To was assigned this duty. He might be dis- prosecute is to proceed against judicially. trict attorney, with jurisdiction extending A prosecution is the act of conducting or over all the counties of a judicial district, waging a proceeding in court; the means or he might be county attorney, with a much adopted to bring a supposed offender to more limited range of authority, but the justice and punishment by due course of prosecuting attorney, whatever his official law. It is also defined as the institution or title and whatever the scope of his terri- commencement and continuance of a crimitory, was to sign indictments. Upon its ad- nal suit; the process of exhibiting formal mission into the Union the new state abol- charges against an off'ender before a legal ished the office of county attorney, and re- tribunal, and pursuing them to final judgturned 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 The remark of Mr. Justice Valentine in