dictment shall not be quashed or set aside. The eighty-ninth and ninetieth sections are the guides for the pleader, from which he ought never to depart. The ninetysixth section limits the court in the appliciation of the requirements of those sections, and furnishes a different rule for its judgment than it had given the pleader for his guidance in sectious eighty-nine and ninety. By the sixth subdivision of the ninety-sixth section, if sufficient matter is alleged to indicate the crime and person charged, the indictment may not be quashed, although it may contain surplusage and repugnant allegations. Now, surplusage and repugnant allegations cannot be that 'plain and concise language, without repetition,' directed to be used in section eighty-nine. Yet the court must disregard such surplusage, when called upon to pass upon the indictment, applying the criterion provided in sections eighty-nine, ninety, and ninety-five, as explained and limited by section ninety-six; and we think it will be found that the indictment, though inartificially and clumsily drawn, must be sustained." Sections 89, 90, 95, and 96, above mentioned, córrespond respectively to sections 103, 104, 109, and 110 of our present Criminal Code. See, also, State v. Furney, 41 Kan. 115, 116, 21 Pac. Rep. 213. Following the statutes and the cases above cited it necessarily follows that the court below did not err in overruling the defendants' motion to quash the information. No indictment or information shall be quashed-“Sixth, for any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate the crime and person charged; nor, seventh, for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits." Crim. Code, § 110.

The next alleged errors have reference to instructions given by the court to the jury; but before proceeding to the consideration of these instructions it will be proper to state some of the evidence in the case. Evidence was introduced tending to show, among others, the following facts: In 1890 Reuben B. Francis was the sheriff of Jackson county. On August 18th of that year he held in his hands an execution and an order of sale against personal property of the defendant Con Morrison, and about that time he levied upon such property and advertised the same to be sold on September 1, 1890, at 2 o'clock in the afternoon. On Tuesday, August 26, 1890, he was at Morrison's house, but Morrison was not at home. Mrs. Morrison and some of the children were there. The sheriff believed that some of the oats that he had previously levied on had been removed, and that Morrison was responsible for their removal. He told Mrs. Morrison that he knew where the oats had gone, and that, if Morrison did not give him the money for them, he would have him arrested, and put in jail. The above is according to the sheriff's testimony. James Morrison, a son of the defendant, testified that this was on Thursday, August 28, 1890, and that the sheriff, among other things, told his mother, using some

profane language, that he would have a warrant for his father, and put him in the penitentiary. This the sheriff denies. Mrs. Morrison at the time was in an advanced stage of pregnancy, and on the Sunday following gave birth to a child. On Monday morning Judge McAloon, the principal adviser of Morrison, and Morrison and others, procured a warrant from a justice of the peace for the arrest of the sheriff upon grounds in some manner connected with the aforesaid conversation had between the sheriff and Mrs. Morrison, and placed the warrant in the hands of a constable named Frank Jackson to serve. On that day, and before the time for the sale to occur, a large number of persons gathered at Morrison's house. Jackson, the constable, testified that McAloon said to him, "Don't serve the warrant unless he [the sheriff] commences to sell." This was said in the presence of Morrison; and McAloon, as a witness, admitted on his cross-examination that he had heard Morrison tell the constable "not to arrest him [the sheriff] unless he commenced the sale." Jackson arrested the sheriff before the time for the sale to commence. But it would seem that the arrest did not interfere materially with the sheriff's liberty, or his freedom to proceed with the sale. The sheriff testified on the trial that the following then occurred: "McAloon came to me, and in the presence of all these defendants he said I could not go on with the sale for the reason that I was under arrest. * # * Mr. Cooney was standing behind me, and he says: 'To come down to a man's place, and do as you have done here, damn you, you will get a rope around your neck before you get away from here.' You need not laugh, God damn you, I mean it.' Mr. Morrison about that time says, 'I would like to see any son of a bitch move a hoof of this stuff away,' or something of that nature. At that time McAloon took me off over towards the stable, and Morrison followed; came over there and cursed me; called me sons of bitches and all kinds of names. He came right up in front of me, and said: 'God damn you, I would like to wipe the ground with you.' He wanted to whip me whether or no. He [Morrison] drove Mr. Fellows away from there. He told him, God damn him, he had no use for him there, and to get out from there. He went, and went quick. * * * I seen a revolver in Mr. Morrison's pants, right in there, [pointing to his own pants;] think it was on that side. It was what I took to be a revolver. Could see the handle sticking a little above top of his pants. The tone of voice was pretty wicked. Think they meant what they said." On cross-examination the sheriff, Francis, testified: "He [Morrison] said he would like to see a son of a bitch move any of that stuff from there. About that time there was one Mr. Cooney began to talk about banging me, and I got my mind off the other business." McAloon, who resides at St. Mary's, brought a law book with him. The sheriff also testified that Morrison shook his fists at him while he was talking to him; and also

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testified that he announced that he postponed the sale for one week, and he did this because he thought there would be trouble, and somebody would get hurt, if he went on with the sale. The sale did not take place on that day, nor for about two weeks afterwards. The constable, Jackson, testified, among other things, that Morrison "became enraged, and said: Mr. Francis, I want you to understand one thing right here. You won't sell a damn thing that is on this place.' ** No God damn son of a bitch could come from Holton and take anything off that place.' Mr. Morri

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son says [to Fellows:] What are you doing here? I did not tell you to come here, damn you. Get out of here.' And he got. * * I heard him [Morrison] say that the sheriff could not sell any. thing, could not sell anything that was on that place." Mr. Swetlick testified that "Morrison says: 'You don't come and sell this property. You or no damn son of a bitch from Holton should sell it.' They were shaking their fists right at the sheriff." Mr. Faulk testified that after the time at which the sale was to take place Morrison "said that the sheriff came down there to sell some property that belonged to him, and that he stopped the sale, and would not let him sell it." Mr. Fellows testified that on the day that the sale was to take place he went there to bid on some of the things to be offered, and "there was something that I took for a revolver in the pocket of Morrison. I did not care about opposing that thing." He also testified to Morrison's threatening demonstrations. lows left the place. He tesified, "I thought there would be trouble if I stayed." Mr. Franze testified that Morrison said that "no Holton son of a bitch or sons of bitches,-don't know whether he used the singular or plural number,-could take any property from there." He also testified that both Morrison and Cooney "seemed excited and violent," and that Morrison seemed "very much enraged. Indeed, all the witnesses testified that Morrison and Cooney were both angry, and seemed to mean what they said. Judge McAloon, Morrison's principal adviser, testified that he "thought that it would not be safe to proceed with the sale." And he also testified that "Mr. Cooney came up to the sheriff in an angry and violent and threatening manner, shook his fists at him, and told him that no son of a bitch from Holton could take away any property off that farm." Mr. Cleveland testified that before the day on which the property was to be sold Morrison said that "it would not be sold. No one would take anything off the place. He would not permit it." There was much other testimony of the same character as the above. On the side of the defendants the witnesses testified that all the trouble that occurred on the day on which the sale was to take place occurred because of what was said by the sheriff to Mrs. Morrison on the Tuesday or Thursday prior to the day on which the sale was to take place, and that nothing was said or done for the purpose of preventing

the sale, or hindering the sheriff from making it. The evidence on many points was very conflicting, but the jury and the court evidently did not fully believe the testimony of the defendants' witnesses, and did believe the testimony of the witnesses for the state. It is probably true that what was said by the sheriff to Mrs. Morrison prior to the day on which the sale was to take place partially furnished the excuse for some of the threatening demonstrations that were made by the defendants and their friends; but evidently, from the evidence, the principal object on the part of the defendants and their friends was to prevent the sale, and they accomplished their object so far as that day was concerned.

The court below instructed the jury, among other things, that they could not find the defendants guilty unless they found beyond a reasonable doubt that the defendants did, as charged in the information, knowingly and willfully obstruct, resist, and oppose the sheriff with respect to his intended sale; and also instructed the jury as follows: "You are the exclusive judges of the testimony and of the credibility of the witnesses. If any one or more of them has willfully testified falsely to any material fact in the case, you are at liberty, but not bound, to disregard the whole of the testimony of that witness. If in considering the testimony you are unable to reconcile it, which would be your first duty, then it is for you to determine which side, when it is directly in conflict, you will believe. You are not at liberty to arbitrarily disregard the testimony of any witness. You should consider it, and give it the weight it is entitled to, considering all the surrounding circumstances that throw any light upon it; and it is your duty to consider the interest of the person testifying, if any is shown on the stand; his intelligence, his means of knowledge, his bias in any direction, from friendship or otherwise,-in determining the weight of testimony of any witness on any side; and from all such considerations and any other that in your judgment would throw any light on the value of the testimony of the witness, and from it all, determine its weight. I need not call your attention to the fact that there is conflicting testimony with regard to material matters in the case. If you are convinced that any one of them testified falsely, as some of them must have done, if their testimony conflicts, it is for you to determine which you will believe, and give it the weight it is entitled to." The last sentence of the above instruction is objected to, but, considering it in the light of the testimony and of the other instructions, it cannot be considered as erroneous or materially erroneous. The defendants also objected to other instructions. The court instructed the jury that the question for them to determine was "whether or not the defendants or any of them willfully and knowingly obstructed, resisted, gr opposed the sheriff in the execution of a lawful duty," and then defined these various words. In defining the word "willfully," the court used the following, among other, language: "Willfully,' in

this connection, means that, if they knew the effect of what they were about to do would be to obstruct the officer in the performance of his duty, or such effect might be reasonably apprehended from their acts, then they may be found to have willfully so acted." The judge also, in this connection, instructed the jury as follows: "And so I say to you that it is not absolutely necessary to a conviction under this section of the statute that they should, in what they did, have actually intended that no sale should take place, if what they did do, would, reasonably considered, prevent a sale. In reference to the claim on the part of the defense that whatever was done there was in regard to some grievance Mr. Morrison had against the sheriff for misconduct towards his wife at the time when he was not present, I say, if the purpose of these people-Mr. Morrison or his friends, these defendants -was to get up an altercation there with the sheriff, the reasonable consequences of which would be, not that they intended to do so, but the reasonable consequence of which would be that the sale could not take place, then they would be within the statute, although they did not intend-actually intend-to disturb the sale at all. The statute says, 'if they shall obstruct an officer in the execution of his duty,' that would mean if they put impediments in his way,-as getting the property away so that he could not get it for sale,-would be obstructing an officer in the execution of his duty. Opposing; that might be done in various ways, by ordering away bidders, giving notice to the bidders that the title was not good, that the sheriff had no right to sell,-and various things of that sort would be, within the meaning of this clause, opposing the sale, or resisting an officer in the execution of a writ. In this case, if the sheriff was there to sell the property, and they had prevented him by force from collecting the property together at a place where it could be sold, that would be resisting the execution of this process. Some portions of these instructions may not be technically correct, and yet, taking the whole of the instructions together, we do not think that they were misleading or erroneous as to anything material in the case, and certainly not so misleading or erroneous as to require a reversal of the judgment. If, for instance, some person had been at the place of the intended sale, who in good faith believed that he owned the property, and not Morrison, and that the sbeirff for that reason had no right to sell it, he would have had a right to give notice of his claims to the sheriff, and to the bidders, and to all other persons, and to have warned all persons not to bid on the property, for the reason that he claimed to own the same. But there is nothing of that kind in this case, so far as the present defendants are concerned. They knew what they were doing, and certainly must have known that the tendency of their acts would be to prevent the sale. In this connection it is necessary to make some further comment upon the instructious. While the defendants must have known that the tendency of their acts

and conduct would be to prevent the sale, and while in all probability they actually intended that such acts and conduct should bring about such result, yet the court below instructed the jury that it was not absolutely necessary to a conviction that the defendants should have actually intended that no sale should take place, provided, if what they did would, when reasonably considered, prevent the sale. We are inclined to think that the instruction, under the circumstances of this case, was right. The tendency of the acts and conduct of the defendants was to provoke a quarrel with the sheriff, and to bring about a breach of the peace. Their conduct was wrong, and they should be held to be responsible for all that would necessarily and reasonably follow from it, and which did in fact follow from it. sale was prevented because of the defendants' conduct, and they evidently had reason to believe, and did believe, that such would be the result. We cannot say that material error was committed by the court below, and therefore its judg ment will be affirmed. All the justices concurring.

The

(46 Kan. 730)

BUFFINGTON V. GROSVENOR.

SAME V. SEARS.

(Supreme Court of Kansas. July 9, 1891.) CONSTITUTIONAL LAW-CITIZENS-ALIENS-RIGHT

TO DOWER.

1. The word "citizens, " as used in section 17 of the bill of rights prior to the amendment of 1888, meant citizens of Kansas; and the word' "aliens," as there used, meant persons born out of the United States, and not naturalized.

2. The statute which provides that the widow shall not be entitled to an interest in lands conveyed by the husband when the wife, at the time of the conveyance, was a non resident of the state, is not repugnant to section 2 of article 4, or the fourteenth amendment to the constitution of the United States.

(Syllabus by the Court.)

Error from district court, Kingman county; S. W. LESLIE, Judge.

Hallowell, Hume & Gordon, for plaintiff in error. John E. Lydecker and Douhitt, Jones & Mason, for defendant in error.

JOHNSTON, J. Martha A. Buffington brought two actions in the district court of Kingman county, one against William S. Grosvenor and the other against John G. Sears, to recover from each one-half of certain real property situate in Kingman county. She was unsuccessful in cach case, and is here complaining of the judgments that were given. The material facts of the cases are alike, and, as they present but one question, they may be disposed of in a single opinion. Martha A. Buffington became the wife of Pierce Buffington in 1865, and continued in that relation until the time of his death, in 1884. He removed to Kansas five or six years before his death, and shortly after coming here he acquired the absolute legal title to the property in controversy. Afterwards he conveyed the property by warranty deeds to certain grantees, and the defendants, by subsequent conveyances, have acquired all the title obtained by

such grantees. Martha A. Buffington did not join her husband in conveying the property, and has never executed a conveyance of the same to any one, but she was never a resident or citizen of Kansas, and was never in the state prior to the death of her husband. She now claims to be entitled to one-half interest in the real estate of her husband, of which she had made no conveyance; but the trial court held, under the proviso of section 8 of the act concerning descents and distributions, that, as she had not been a resident of Kansas, she never had any interest in the land conveyed, and her signature or conveyance was unnecessary to a complete transfer of the land by her husband. The section referred to reads as follows: "Onehalf in value of all the real estate in which the husband, at any time during the mar riage, had a legal or equitable interest, which has not been sold on execution or other judicial sale, and not necessary for the payment of debts, and of which the wife has made no conveyance, shall, under the direction of the probate court, be set apart by the executor as her property, in fee-simple, upon the death of the husband, if she survives him: provided, that the wife shall not be entitled to any interest, under the provisions of this section, in any land to which the husband has made a conveyance, when the wife, at the time of the conveyance, is not or never has been a resident of this state. Continuous cohabitation as husband and wife is presumptive evidence of marriage, for the purpose of giving the right aforesaid." Gen. St. 1889, par. 2599. The plaintiff's contention is that the proviso of the section violates both the state and federal constitutions, in that it discriminates against the citizens of other states, and aliens. It is first contended that the proviso falls within the inhibition of section 17 of the bill of rights, which at the date of the conveyance of the land in controversy by Pierce Buffington read as follows: "No distinction shall ever be made between citizens and aliens in reference to the purchase, enjoyment, or descent of property." Does the proviso mentioned make "a distinction between citizens and aliens in reference to the purchase, enjoyment, or descent of property?" We are inclined to think that it is a regulation of the manner of transferring property within the state, instead of a restriction upon its descent. However, that question is immaterial in this case, so far as section 17 of the bill of rights is concerned. In no event can it be said that there is a distinction between citizens and aliens in the present case, for it does not appear that the plaintiff is an alien within the proper meaning of that term. It is alleged by plaintiff, and conceded on the other side, that she is a citizen of the United States. The wife of a citizen of Kansas, who resides in another state, cannot be regarded as an "alien." Wesbter defines the word as "one born out of the jurisdiction of the United States, and not naturalized," and Bouvier gives a like definition. Anderson's Dictionary of Law defines an "alien" to be "one born in a strange country, under obedience to a strange prince, or out of the ligeance of

the king." The amendment to this constitutional provision, which was adopted in 1888, shows that that is the sense in which it is used in our constitution. Section 17 of the bill of rights, as amended, reads as follows: "No distinction shall ever be made between citizens of the state of Kansas, and the citizens of other states and territories of the United States, in refer. ence to the purchase, enjoyment, or descent of property. The rights of aliens in reference to the purchase, enjoyment, or descent of property may be regulated by law." Before this amendment was adopted, citizens and aliens stood upon an equality with reference to the purchase, enjoyment, and descent of real property, but by the amendment the people ordained that the restriction upon the legislature should be removed, and authorized such discriminating regulations agaiust aliens in this respect as might be deemed wise. The use of the term "alien" in the amendment leaves no doubt of the sense in which the word is used, and furnishes an argument that it was used in the same sense in the original provision. We agree with counsel for plaintiff that the term "citi zen, as used in the original provision, refers to citizens of the state of Kansas. Counsel, who filed a brief by the permission of the court as amicus curiæ, contend that the term includes all citizens of the United States, but we are not inclined to agree with that view. We conclude, then, that section 17 of the bill of rights had no application to this case.

It is next contended that the proviso is repugnant to that provision of the federal constitution which ordains that “the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states," and also violative of a like limitation in the fourteenth amendment. We think the proviso is not in conflict with either of these provisions. It makes no discrimination against the citizens of other states in respect to any of the privi leges or immunities of general citizenship. The proviso, in connection with other statutes, furnishes a rule regulating the manner of the transfer and transmission of real property. Where a person owns the absolute title to land in Kansas, and his wife is a resident of the state, she must join in the conveyance; but when she is not a resident of Kansas, and therefore not subject to its laws, her signature and conveyance are unnecessary, and the husband alone may convey a good title. It is competent for the legislature of each state to declare the mode and manner by which real property situate within the state may be transferred by the husband, or by the husband and wife, or by a judgment and process of court, so as to divest the husband, or husband and wife, of all estate or interest therein, and also to provide for the distribution of and the right of succession to the estates of deceased persons. "The power of the state to regulate the tenure of real property within her limits, and the modes of its acquisition and transfer, and the rules of its descent, and the extent to which a testamentary disposition of it may be exercised by its owners. is undoubted." It is an established princi.

It is urged by the plaintiff that the wife is an heir, and as such is entitled to inherit one-half of her deceased husband's property, but that the proviso discriminates against widows who reside outside of the state, and deprives them of the right which is accorded to a resident widow. The wife, strictly speaking, is not an heir of the husband, although she is generally spoken of as such; but still, if she is regarded as an heir, the non-resident widow is not deprived of any “privilege or immunity." Under our statute, the property of the husband belongs exclusively to him, as the wife's property is exclusively her own. Neither has any vested interest or control over the property of the other by virtue of the marriage relation. The wife has no estate in the land of the husband. It is a mere possibility, depending upon the death of the husband, or whether he has divested himself of the title prior to his death. If he survives her, no interest is taken by nor transmitted to her heirs. If she survives him, but before his death he conveys the land, or it has been sold on execution or other judicial sale, nothing remains for her to take, and she has been deprived of no right. If there was an attempt to convey by the husband alone when his wife was a resident, the title would remain in her, because the manner of conveying land prescribed by statute had not been pursued; and if there was no judicial sale of the land, and it was not necessary for the payment of debts, a one-half interest would descend to her. In such a case, if she was a non-resident of the state, the conveyance by the husband alone would, under the rules prescribed for conveying, be sufficient to divest the title, and hence there would be nothing for her to inherit. It therefore appears that, if the conveyance is made in the manner prescribed by statute, there is nothing for either the resident or non-resident widow to inherit. There is really no discrimination between the resident and the non-resident widow, for each takes one-half of all the real property which her husband owned at the time of his death. When the husband's land has been conveyed in accordance with law during his life, there is no descent to either, for there is nothing to descend. For reasons that were deemed sufficient, the legislature made the signature and conveyance of the non-resident wife unnecessary. The fact that the wife did not accompany her husband to Kansas, or had abandoned nim and gone to another state, and may or may not have obtained a divorce elsewhere, thus leaving the status of the parties in doubt, and making it difficult to obtain a perfect transfer of land in many cases, may have been deemed sufficient reason for prescribing this rule of conveyance. The statute was enacted shortly after the admission of the state, and when it was rapidly in

tion from many of the eastern states, and also foreign countries, many coming without their wives and families; and possibly the rule was adopted to avoid inconvenience and deception in the transfer of real property. The "immunities" and "privileges" referred to in the federal constitution would not, in any event, include the claim made by the plaintiff. Those terms "mean that all citizens of the United States shall have the right to acquire property and hold it, and this property shall be protected and secured by the laws of the state in the same manner as the property of the citizens of the state is protected; that this property shall not be subject to any burdens or taxes not imposed on the property of citizens of the state." 3 Amer. & Eng Enc. Law, 253. See, also, the cases there cited, and Corfield v. Coryell, 4 Wash. C. C. 380; McCready v. Virginia, 94 U. S. 391. According to these authorities, many rights and privileges may be granted by a state, depending to some extent upon the residence of those to whom they are granted, without infringing upon this provision of the constitution. The privilege of voting, of holding office, or of acting as an administrator of estates, may be withheld until after persons have resided within the state a reasonable period of time, without violating the constitution; and it is not violated by allowing an attachment against the property of a non-resident debtor without an undertaking, although such process cannot be obtained against a resident without an undertaking. Head v. Daniels, 38 Kan. 1, 15 Pac. Rep. 911; Cooley, Const. Lim. (6th Ed.) 490. These and many other distinctions do not fall within the privileges and immunities of general citizenship. In treating upon this question, Judge Cooley says: “Although the precise meaning of 'privileges' and immunities' is not very clearly settled as yet, it appears to be conceded that the constitution secures in each state, to the citizens of all the other states, the right to remove to and carry on business therein; the right, by the usual modes, to acquire and hold property, and to protect and defend the same in the law; the right to the usual remedies for the collection of debts, and the enforcement of other personal rights; and the right to be exempt in property and person from taxes or burdens which the property or persons of citizens of the same state are not subject to. To this extent, at least, discriminations could not be made by state laws against them. But it is unquestionable that many other rights and privileges may be made, as they usually are, to depend upon actual residence, such as the right to vote, to have the benefit of exemption laws, to take fish in the waters of the state, and the like." Cooley, Const. Lim. (6th Ed.) 490; also note on page 25. There are sev eral adjudicated cases in other states sustaining a provision of statute substantially similar to the proviso in question. In Pratt v. Tefft, 14 Mich. 191, it was decided that a woman residing out of the state at the time of her husband's death was not entitled to lands lying within the state,