if, in the conversations he had had with plaintiff in regard to shipping the cattle, he had ever had in mind or understood that he was making an oral contract, and, over objections, he stated that he had not. To allow him to give his unexpressed intent was manifest error, and the importance of the error was increased by an instruction to the effect that, before plaintiff could recover on the oral contract, the minds of the agent of the company and of the plaintiff must have met and agreed on the terms and conditions. There is complaint of the sixth instruction, and, as printed in the record, it appears to be ambiguous and faulty, but that defect can be corrected and cleared up in a future trial. For the errors pointed out, the judgment must be reversed, and the cause remanded for a new trial. All the Justices All the Justices concurring. (74 Kan. 546) MISSOURI, K. & T. RY. CO. v. FRY. (Supreme Court of Kansas. Nov. 10, 1906.) 1. CARRIERS-LIVE STOCK SHIPMENTS-DELAY IN TRANSPORTATION. A live stock shipping contract contained a stipulation that, as a condition precedent to his right to recover for any loss or injury to the cattle, resulting from the carrier's negligence, including delays, the shipper should give notice in writing before the cattle were removed from pens at destination. Held, that the words "including delays" cannot be regarded as having reference to a loss resulting from a decline in the market occasioned by the carrier's negligent delay in transportation. [Ed. Note. For cases in point, see Cent. Dig. vol. 9, Carriers, § 947.] 2. SAME-MEASURE OF DAMAGES. In an action against a carrier to recover for loss from a decline in the market price occasioned by negligent delays in the transportation of cattle, the measure of damages is the loss sustained by the decline of the market where the cattle were delivered, and an instruction that the jury should consider the price the cattle subsequently sold for at another market, to which they were reshipped over another road, and the decline at that market on a different day is erroneous. [Ed. Note. For cases in point, see Cent. Dig. vol. 9, Carriers, § 964.] (Syllabus by the Court.) Error from District Court, Woodson County; Oscar Foust, Judge. Action by J. H. Fry against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff. Defendant brings error. Reversed. In an action against the Missouri, Kansas & Texas Railway Company, J. H. Fry sought to recover damages for an alleged delay in the shipment of 107 head of cattle from Neosho Falls to Kansas City, Mo. The cattle were loaded in five cars, two of which contained 44 head consigned to a commission company at Chicago, with the privilege of the Kansas City market. The remaining cattle were consigned to the same commission company at Kansas City. The contracts for the transportation of the cattle were in writ ing, copies of which were attached to and made a part of the petition. Across the face of the contract covering the 44 head consigned to Chicago were stamped the words "with privilege of Kansas City market," and it was alleged that by this provision the shipper had the right, upon arriving at Kansas City. to elect whether to unload there and dispose of the cattle or have them carried by the railway company to Chicago at the through tariff rate from Neosho Falls, which was 28 cents per 100; that, in the event he elected to sell the cattle at Kansas City, he was to pay only the tariff rate from Neosho Falls to Kansas City, which was 11 cents. The cattle were shipped from Neosho Falls on the 26th day of January, 1904, and it was alleged that they should have arrived in Kansas City on the morning of the 27th in time for that day's market; that, by reason of the negligence of the railway company, the cattle failed to reach Kansas City until the afternoon of the 27th, too late for the market of that day, and too late for the 44 head of cattle to reach Chicago in time for the market there on the 28th; that, on the arrival of the cattle at Kansas City, the market there had suffered a decline which continued on the 28th; and that plaintiff, in order to realize the highest market price on all the cattle, reshipped the 107 head on the evening of the 27th to Chicago over another road, and failing to reach Chicago in time for the market of the 28th, was obliged to hold the cattle until the 29th when he sold all at a loss occasioned by the decline in the Chicago market. Damages were also claimed by reason of additional freight on the 44 head of cattle consigned to Chicago. Plaintiff claimed that he paid the sum of the rates (11 cents to defendant and 20 cents to the other railway company) and asked damages for the difference between the through tariff rate and the sum paid, which it was agreed amounted to $12.32. The answer was a general denial. The only evidence on the trial was that offered by plaintiff, from which it appears that the cattle did not arrive at Kansas City until afternoon of the 27th, when the market of that day had closed, and that they should, in the ordinary course, have arrived there in the morning; that this delay was occasioned by the negligence of the railway company; that plaintiff caused all the cattle to be unloaded and fed at Kansas City, and, late on the afternoon of the same day, upon advice of his commission company, reshipped all the cattle to Chicago over another road, paying therefor the 20-cent rate from Kansas City to Chicago. His commission company had already paid to defendant company, when the cattle were delivered at Kansas City, the 11-cent rate from Neosho Falls. It was admitted that no notice was given defendant company of any election to have the 44 head of cattle carried to Chicago, or any demand that defendant company should forward them. There was evidence showing a decline in the market at Kansas City on the 28th below the price of the 27th. Some witnesses estimated this decline at from 15 to 20 cents, others at from 25 to 30 cents, per 100. There was evidence also showing a decline in the Chicago market between the 28th, when it was claimed that, but for the delay at Kansas City, the 44 head should have arrived there, and the 29th when all the cattle were sold. The jury returned a verdict in favor of plaintiff for $333.32. In answer to special questions they stated that they allowed for damages occasioned by decline in the market $321 which was arrived at by allowing 25 cents per 100 pounds for decline in price, based upon an average weight of 1,200 pounds per head for the 107 cattle. They also allowed for additional freight paid on the 44 head the sum of $12.32. From this judgment, plaintiff in error appeals. John Madden, W. W. Brown, and Lamb & Hogueland, for plaintiff in error. G. R. Stephenson, for defendant in error. PORTER, J. (after stating the facts). Three assignments of error are urged: First, overruling the demurrer to plaintiff's evidence; second, error in instructions; third, denying the motion for a new trial. The first error, the overruling of the demurrer to the evidence, is based wholly upon the contention that the written contracts, which were made parts of the petition, contained certain provisions which, under the admitted facts and evidence, prevented a recovery by plaintiff. The contracts are what are known as "special live stock contracts" and contained the following provision: "The shipper further expressly agrees that, as a condition precedent to his right to recover any damages for any loss or injury to said cattle resulting from carrier's negligence as aforesaid, including delays, he will give notice in writing to the conductor in charge of the train or the nearest station or freight agent of the carrier on whose line the injuries occur before said cars leave that carrier's line or before the cattle are mingled with other cattle or removed from pens at destination. In his notice he shall state place and nature of the injuries, to the end that they may be fully and fairly investigated, and said shipper shall, within 30 days after the happening of the injuries complained of, file with some freight or station agent of the carrier, on whose line the injuries occurred, his claim therefor, giving the amount. Shipper's failure to comply with the requirements of this section shall absolutely defeat and bar any cause of action for any injuries resulting to said. cattle as aforesaid." Another provision was as follows: "No agent of this company has any authority to waive, modify, or amend any of the provisions of this contract, or to agree to ship said cars by any particular train, or to reach any particular market on any particular day, which the carrier hereby expressly declines to do." The second provision quoted may be disposed of in a few words. There was evidence that the delay in transporting the cattle was caused by the negligence of defendant. That the railway company could not, by the terms of this provision, limit its liability for damages caused by its own negligence is so obvious as not to need the citation of authorities. It was admitted that no written notice of loss was given under the first provision quoted, and plaintiff in error contends that the giving of this notice was a condition precedent to the right to maintain the action. Indeed, this is the main contention here. Aside from a claim of error in certain instructions which will be considered hereafter, it is upon this that a reversal is sought. This question has been settled adversely to the contention of plaintiff in error, and is no longer an open one. Railway Co. v. Poole (Kan.) 87 Pac. 465, and Cornelius v. A., T. & S. F. Ry. Co. (just decided) 87 Pac. 751. The only apparent material difference in the contract in those cases and the one here is that this contains the words "including delays," so that it reads, "For any loss or injury to said cattle resulting from carrier's negligence as aforesaid, including delays, he will give notice," etc., and the further difference that in the two cases, supra, the damage is for any loss or injury to said stock "during the transportation thereof," while in the one under consideration, instead of the words in italics, it reads, "any loss or injury to said cattle resulting from carrier's negligence as aforesaid." It is, however, so apparent from the whole contract that, when loss or injury is mentioned, reference is had to the physical condition of the cattle as affected by something which might occur during transportation that the absence of the phrase is of no consequence. It is not clear just what is meant by the words "including delays." unless they are used in reference to the physical condition of the stock as affected by delays. The purpose cannot be said with reason to provide for notice of a loss resulting from a decline in the market, for it would be manifestly unreasonable to require the shipper to give notice of something which might or might not happen, depending upon a variety of circumstances and conditions which he could not judge of until after his interests might require the removal of the stock from the pens at destination. He might see fit, before the market of the next day, to ship his stock back home, or to some other market, and yet not lose his right to maintain an action for any damage caused by the company's negligent delay, resulting from a decline in the market. The contract provides that the notice shall state the place and nature of the injuries "to the end that they may be notice to the company, or demand that it should forward the cattle, saw fit to reship all of them to Chicago over another road. This gave him no right whatever to recover additional freight on the 44 head of cattle. This error itself would not call for a reversal because the amount allowed for this item of damages was stipulated between the parties, and only the question whether plaintiff actually paid it submitted to the jury. The slight excess of $12.32 in the judgment could be easily remedied if that were all. Another more serious error occurred in the instructions. The jury were instructed that the measure of plaintiff's damages was the loss suffered by the decline in the Chicago market. Plaintiff admitted that he did not know whether he lost more by shipping to Chicago than he would have lost by stay fully and fairly investigated." The reasons Most of the alleged errors in the instructions are disposed of by what has been said with respect to the terms of this contract. The instructions generally seem to have been prepared carefully and to state the law applicable to the facts with admirable clearness. We find, however, that, possibly owing to the wrong theory upon which plaintiff below tried his case, two of the instructions were erroneous. One authorized the jury to allow as an item of damages the additional freight paid on the shipment of the 44 head of cattle to Chicago. Plaintiff admitted that no demand had been made that defendant company should forward these cattle to Chicago under contract or otherwise. When the railway company delivered all the cattle to the commission company at Kansas City its contract was certainly ended, so far as concerned the three car loads consigned to Kansas City, and equally so with reference to the two car loads consigned to Chicago, unless notified within a reasonable time of his election to have them carried by it to Chicago. It was still liable for any damage resulting from its negligent delay, but its contract for delivery was ended, subject to this liability. Plaintiff, after the cattle had been delivered, and without any or not. He testified as follows: "Q. Then, from what we have learned concerning the market in Kansas City the day before [the 28th] you could have done better in Kansas City? A. Well, that is something I don't know. I shipped to Chicago to better my condition, on the advice of my commission men. Q. You took chances on getting a better market? A. Certainly; I have took my chances every time I shipped. Q. You don't want the railroad company to take your chances, on your getting a better market in Chicago? A. No, of course; but I simply shipped through because I was delayed and was too late for the market in Kansas City and the prospect was it would be still worse the next day, and my commission men advised me to ship on to Chicago, that I might strike a better market Friday, the day I would naturally be on the market." He might, if his commission company had so advised, have shipped these cattle to Liverpool, and with equal propriety have claimed that the measure of his damages was the loss occasioned by a later decline there. The measure of his damages was clearly the loss occasioned by the decline in the market at Kansas City, resulting from the negligent delay in arriving there. It is impossible to ascertain from the verdict or the special findings which market price was considered in determining that the loss by the decline amounted to 25 cents per 100. But plaintiff introduced in evi- 1 This was error for which the cause must | horses and drove some miles to a river into be reversed, and remanded for another trial. All the Justices concurring. (71 Kan. 561) STATE v. NEWTON et al. (Supreme Court of Kansas. Nov. 10, 1906.) 1. INDICTMENT AND INFORMATION-CONSTITUTIONAL PROVISIONS. Article 5 of the amendments to the Constitution of the United States is applicable only to proceedings in the federal courts, and not to proceedings in the courts of the states. There is no repugnancy between this constitutional provision and the statutes of this state, providing for the trial of capital and infamous crimes upon presentment by information based State v. upon a preliminary examination. Barnett. 3 Kan. 250, 87 Am. Dec. 471. [Ed Note. For cases in point, see Cent. Dig. vol. 27, Indictment and Information, §§ 7, 8.] 2. HOMICIDE-INSTRUCTIONS. Where, upon the trial in a criminal prosecution upon a charge of murder in the first degree, the evidence points so strongly to the guilt of the accused in the highest degree of the crime as to practically exclude any theory of guilt in a lower degree: and where the evidence does not naturally suggest the absence of premeditation and deliberation in the commission thereof as probable, still, it is the duty of the trial court to define and to instruct in reference to all lower degrees of the crime of which there is any reasonable theory of guilt under the evidence. [Ed. Note. For cases in point, see Cent. Dig. vol. 26. Homicide, §§ 638-641.] 3. CRIMINAL LAW-INSTRUCTIONS. In such case, however, it is not reversible error for the court to omit to define any lower degree of the crime or to instruct in reference thereto unless its attention is challenged thereto by a request for such instruction. which they threw the body. They drove on some miles further, when they were overtaken by the sheriff and arrested. When arrested they had with them King's horses and wagon, and there was found on the person of Edward Clark Newton about $400. After the arrest the appellants made admissions to the sheriff which will be referred to, so far as deemed necessary, in the opinion. G. M. Martin and A. M. Applegett, for appellants. C. C. Coleman, Atty. Gen., F. S. Jackson, Asst. Atty. Gen., and Samuel Griffin, for the State. SMITH, J. (after stating the facts). The appellants' first contention is that they cannot be held to answer for the crime of murder on presentment by information; that as citizens of the territory conveyed to the United States by the Louisiana purchase treaty, they are entitled to all the rights and immunities of citizens of the United States under the third article of that treaty. It is further claimed that under article 5 of the amendments to the Constitution of the United States, no person can be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury. It is readily conceded that the inhabitants of the ceded territory have all the rights and immunities of citizens of the United States and are in fact citizens of the United States. The constitutional provision, however, is applicable to the federal courts only, and not to the courts of the states, and there is no repugnancy between the con [Ed. Note.-For cases in point, see Cent. Dig. stitutional provision and the provisions of our vol. 14, Criminal Law, §§ 1996, 1997.] (Syllabus by the Court.) Appeal from District Court, Barber County: P. B. Gillett, Judge. Edward Clark Newton and Mark Morris Newton were convicted of murder, and appeal. Affirmed. The appellants were tried jointly in the district court of Barber county, and were both convicted of murder in the first degree. and jointly appeal to this court. The uncontroverted facts are: The appellants are brothers. Edward Clark Newton being at the time of the occurrence about 21 years of age, and a large man, and Mark Morris Newton was about 17 years of age, and considerably smaller than his brother. About July 28, 1904, these brothers, who were traveling with a team of horses and wagon, camped near a schoolhouse by the roadside. and the deceased, Patrick King, came along the road in the evening, having a team of horses and wagon and one or two loose horses, and camped with the Newtons. Some time during that night King was killed. His body was placed in one of the wagons after the hands and feet had been tied, and the Newtons took the two outfits with the loose statute, providing for presentment by information after a preliminary examination. It is also a subject for legislative, and not necessarily for constitutional, regulation of the state courts. Barron v. Baltimore, 7 Pet. (U. S.) 243, 8 L. Ed. 672; State v. Barnett, 3 Kan. 250, 87 Am. Dec. 471. Many trial errors are assigned, but we consider it necessary only to advert to one, the failure of the court to define and instruct as to degrees of the crime charged inferior to murder in the first degree. The circumstances of the case indicate that a foul murder was committed in the perpetration of a robbery, or for the purpose of stealing the property and money, which at his death belonged to the deceased. In other words, the circumstances alone, considered naturally, indicate murder in the first degree, and that only. After the arrest, the appellants made admissions to the sheriff, and there is no conflict in the evidence as to their statements. Their statements were made, according to the evidence of the sheriff and another witness, in the presence of each other, and neither disputed any assertion of the other. The admission of Mark Morris Newton, as testified to by the sheriff, and his deputy is, in substance: That he struck That King, the deceased, with a neck yoke. when he struck him the first time he did not intend to kill him, but he (King) was so near dead he thought he would put him out of his misery, and then he struck him several times; that Morris also showed the sheriff the neck yoke which had blood marks upon it. That the reason Morris gave for striking King the first blow was that while he and King were watering their horses at the well, that King asked him what church his people belonged to; he said they did not belong to any church, and then King went to abusing people that did not belong to a church and that made him (Morris) mad. He (Morris) did not say anything, but when he got a chance he got up and struck King on the head with a neck yoke. That Morris said his brother, Clark, did not know anything about it till the first blow was struck. The admission of Edward Clark Newton, according to the evidence of the same witnesses, was, in substance: That he knew nothing about any trouble between his brother and King until Morris struck the first blow. That then he jumped up and said, "Morris, what have you done?" and then ran around behind the schoolhouse, near which the killing was done. That Morris came around the schoolhouse and made him go and help him. That Morris threatened Clark that if he did not help him he (Morris) would serve him as he had King. That he went with Morris, and Morris took King's money from the body and made him (Clark) take it to keep for him. That they tied the feet and hands, put the body into one of the wagons, hitched teams to both wagons, and taking all the horses and mules left the place. That he (Clark) threw the body over the bridge into the river. That he did not in any way assist or aid in the killing, and did what he did only for the purpose of helping his brother out of the trouble. There was much other evidence that blood spots were found near the schoolhouse, that the body was found in the river with wounds upon the head to account for the death, that the wagon and wagon sheet in which appellants admitted hauling the body were bloody, that the wagon, harness, and horse belonging to King were in the possession of appellants when they were arrested, and about $400, admitted to have been King's money, was found in Clark's pockets. before said, the circumstances almost conclusively indicate that the murder was committed in the perpetration of a felony which constitutes murder in the first degree. If the admission of Morris be true, he did the final act with deliberation and premeditation. He determined to kill King to put him out of his misery. If the statement of Clark be true, he is not guilty of any degree of homicide. He is only an accessory after the fact. The jury evidently did not believe his story. Their verdict shows that they must have believed the appellants conspired to rob King, if not to kill him for that purpose; that the killing was done in the perpetration of the robbery. The court saw no evidence of any degree of homicide except murder in the first degree, and instructed accordingly, and no instruction was asked on the part of the defense challenging the attention of the court to any other degree of homicide which either of the defendants, if guilty at all, could unde the evidence be guilty of. Let it be conceded that the jury, in the exercise of their indubitable right, might believe so much or so little of the evidence purporting to relate to the statements of the appellants as appeared to them credible; that the jury might accept so much of the statements they believe the appellant made as the true history of the occurrence, and reject so much as they believe false. Let it be conceded that, by eliminating portions of the statement and giving the most favorable interpretation of the circumstances to the appellants, it is a reasonable theory that one or both of the appellants might be guilty of a degree of homicide inferior to murder in the first degree. If so, it was the duty of the court to define such inferior degrees, to formulate the theory and to instruct in reference thereto. State v. Clark, 69 Kan. 576, 77 Pac. 287; State v. Kittle, 70 Kan. 241, 78 Pac. 407. Where the evidence naturally suggests the guilt of an accused in a lower degree as probable, the rule as above stated is salutary. not only as a matter of justice to the accused, but as giving greater certainty to the conviction of those really guilty, but in a lower degree than charged. It is common experience in practice, where one really guilty of crime is charged with a higher grade of the crime than the evidence justifies, that juries are prone to acquit entirely. It is a common device of criminal lawyers, in defending, to magnify the enormity of the crime charged to enlist sympathy, and to detract attention from the crime proven. By directing attention to the mountain top they hope the foothills may escape observation. So, it is the duty of the court, by its instructions, to call the attention of the jury to every degree of the crime embraced in the charge of which the evidence naturally suggests the guilt of the accused as probable; and this without special request, and even over the objection of counsel. It is also the province of counsel to request instruction upon any grade of the crime which may be omitted, and if, upon any reasonable theory or construction of the evidence, it is a proper matter for the consideration of the jury, it is error for the court to refuse it. Does it follow, in cases like the one at bar, where the court has instructed as to the only degree of the crime which the evidence naturally suggests as probable and the jury has returned a verdict of guilty in that degree, which verdict is abundantly supported by the evidence, that because appellants' counsel can, by discarding evidence which the jury might properly have disre |