slaughter, as provided in the preceding section, from any point south of the south line of Kansas, without having first caused such animal or animals to be inspected and passed under certificate of health by the live stock sanitary commissioner of this state, or some inspector thereof, duly authorized by such commissioner, or by the bureau of animal industry of the Interior Department of the United States government; and any person or persons violating the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than fifty nor more than one thousand dollars, or by imprisonment in the county jail, or by both such fine and imprisonment." It is said the law is void, because it prohibits bringing cattle into the state from below its south line at all seasons of the year, and whether they are diseased or not, unless inspected, and that the stock owner is placed at the mercy of the live stock sanitary commissioner who has power to admit or exclude cattle as he may see fit. It is true that all cattle coming from the south must be inspected at all seasons of the year, but capricious conduct on the part of the live stock sanitary commissioner is not contemplated. He has no discretion. He merely ascertains facts. If incoming cattle are healthy he passes them. If they are diseased he turns them back. Inefficiency or abuse of power in the administration of quarantine laws cannot be presumed. Inspectors are to be credited with proper capacity and proper motives until a case to the contrary is presented. Such an instance, if one should arise, would disclose conduct outside the purview of the offending individual's legal authority and could not be charged to the law itself. All human laws must be executed by fallible men but such laws are not on that account unrighteous.

The only question, then, is, if the statute imposes an unreasonable restriction upon interstate commerce, the territory lying south of the south line of Kansas from which cattle may be brought into the state virtually being treated as an infected district. The prevalence of boophilus bovis, or Southern ticks, in the cattle country south of Kansas is a fact of common knowledge. The courts take judicial notice of it. Grimes v. Eddy, 126 Mo. 168, 28 S. W. 756, 26 L. R. A. 638. 47 Am. St. Rep. 653. Recent scientific investigation shows that animals coming from portions of that region, at least, are always likely to be capable of communicating what is known as Texas, splenetic, or Spanish fever. The liability of infection from animals coming from other parts is so great that it cannot be said the regulation is unnecessary to guard properly against the danger to be apprehended.

There is so great a dissimilarity between this statute and the one under consideration in the case of State v. Duckworth, 5 Idaho, 642, 51 Pac. 456, 39 L. R. A. 365, 95 Am. St.

Rep. 199, that the decision there made is not an authority. The prohibition upon importation is not absolute here as in the case of Railway Co. v. Husen, 95 U. S. 465, 24 L. Ed. 527. The discrimination between sections is based upon known conditions warranting it. The detention of cattle for inspection is not unduly burdensome. The cost of inspection is borne by the state itself. Cattle free from disease are passed under a certificate of health. Hence the statute is sustainable under the well-recognized power of the state to protect its live stock by reasonable inspection laws against the ravages of contagious and infectious diseases. Some confusion between different provisions of the law relating to the general subject of live stock sanitation and inspection is pointed out, but the section quoted above is not affected, and is sufficient to uphold the judgment of the district court. Some minor questions are discussed. A reading of rule 13 of the Interior Department of the United States shows that it could not have contributed to the verdict rendered without connecting evidence not found in the record. Hence the error in admitting it was harmless. The proof of every element of the offense charged was ample The reference by the county attorney to the absence from the case of a certificate of inspection was not a reference to the failure of the defendant to testify. The instructions given are not printed in the brief as required by rule 10 (73 Pac. viii); and from what has been said, it is apparent the instructions refused were rightfully refused.

The judgment of the district court is affirmed. All the Justices concurring.

(74 Kan. 401)

Ex parte BROADHEAD. (Supreme Court of Kansas. July 6, 1906.) 1. CRIMINAL LAW-WARRANT-RETURN-EFFECT.

When a warrant, which has been issued by a justice of the peace on a complaint charging the person, whom the warrant commands the sheriff to arrest, with a felony, is delivered to a sheriff for service, and the sheriff thereafter, by direction of the county attorney, returns said warrant "not found," and files the same with the justice who issued it, such warrant thereupon becomes functus officio.

2. SAME-LIMITATIONS.

Upon such return of the warrant no action is thereafter pending which suspends the running of the statute of limitations.

(Syllabus by the Court.)

Application of Ted. Broadhead for a writ of habeas corpus. Petition discharged.

This is an original proceeding in habeas corpus. No evidence was introduced except the following agreed statement of facts, viz.: It is admitted and agreed that the material facts in the above-entitled case are as follows, to wit: (1) The offense charged against the said Ted. Broadhead is alleged to have been committed July 24, 1899. (2) The warrant upon which the petitioner is

now held was issued on the 1st day of August, 1899, by J. W. Stow, a justice of the peace of Elk county, Kan., and placed in the hands of J. H. Hamilton as sheriff of Elk county, Kan., on August 2, 1899. (3) In April, 1900, the said Ted. Broadhead was arrested on charge of a felony, alleged to have been committed in Linn county, Kan., by the sheriff of said Linn county, Kan., and placed in the jail of said county. (4) That on or about the 7th day of July, 1900, the said Ted. Broadhead, was by the jury in the district court of Linn county, Kan., convicted of said felony and was by said court sentenced to imprisonment in the State Penitentiary at Lansing, Kan., for the period of seven years. (5) That said warrant herein mentioned remained in the hands of the sheriff of Elk county, Kan., without having been served until on or about the 25th day of June, 1901, when the said sheriff of Elk county, Kan., returned said warrant to the justice of the peace who issued the same and indorsed thereon: "Received this writ Aug. 2nd, 1899. June 25th, 1901, I cannot find the within named Ted. Broadhead within my county. J. H. Hamilton, Sheriff. Fees: Mileage, 390 miles, $39.00. J. H. Hamilton, Sheriff." And thereupon the said justice of the peace made the following indorsement on the back thereof: "Filed this 25th day of June, 1901. J. W. Stow, Justice of the Peace." (6) That said warrant remained among the files of the office of said justice of the peace until about the 20th day of March, 1906, when the same was, by one H. E. Hubbell, a justice of the peace of Elk county, Kan., and successor in office to the said J. W. Stow, delivered to W. S. Beaty, who had succeeded the said J. H. Hamilton to the office of sheriff of Elk county, Kan. (7) That during all the time from April, 1900, to the 20th day of March, 1906, the sheriff of Elk county, Kan., knew the whereabouts of said Broadhead, and made no effort to serve the said warrant upon him or to arrest him, except as herein set out. (8) That no other criminal prosecution has been instituted or warrant issued against the said Broadhead for the offense charged herein since the 1st day of August, 1899. (9) That the said Broadhead was arrested by the sheriff of Elk county, Kan., on the warrant set out in the petition herein, on the 28th day of March, 1906, upon his release from penitentiary, and is now held in the county jail of Elk county, Kan., by virtue of said warrant. (10) That the fees of the sheriff for his services in attempting to serve said warrant prior to June 25, 1901, and the fees of the justice of the peace who issued said warrant, were allowed by the board of county commissioners of Elk county, Kan., in July 1901 and paid by the county treasurer of said county. (11) That the said Broadhead has been continuously in the state of Kansas from April, 1900, to April, 1906, during all of said time, either in the county jail of Linn county, Kan., or in the Kansas State Penitentiary

at Lansing and at no time since April 1, 1900, has he concealed himself so that the process could not be served upon him, nor has he concealed the fact of said crime.

It is further alleged in the petition and not denied by the answer that at the time the sheriff of Elk county turned the warrant in question over to the sheriff of Linn county, he, acting upon the advice and under the direction of the county attorney of Elk county, instructed the sheriff of Linn county as follows: "If said Ted. Broadhead is acquitted of the charge of felony against him in Linn county, Kan., arrest said Broadhead on said warrant, but if said Broadhead is convicted of a felony in said Linn county, Kan., do not serve said warrant, but deliver the same back to said sheriff of Elk county, Kan." And, further, that Broadhead was convicted of a felony in Linn county in July, 1900, and thereupon the sheriff of Linn county returned the warrant to the sheriff of Elk county without having made any service or attempt to serve the warrant upon Broadhead. That the sheriff of Elk county retained said warrant until June, 1901, when he was instructed by the county attorney of Elk county as follows: "Return said warrant to the justice of the peace that issued it, and put in your claim for your fees."

Lamb & Hogueland, for petitioner. C. C. Coleman, Atty. Gen., and A. T. Ayres, for respondent.

SMITH, J. (after stating the facts). The warrant issued in this case was very irregular and informal. Assuming, without deciding, that when .issued it contained a sufficient charge to justify the arrest of the petitioner, two questions remain to be decided: (1) Did the instrument at the time of the arrest of the petitioner in March, 1906, retain the attributes of a warrant in full force or was it functus officio? (2) Was the action barred by the statute of limitation at the time of the arrest of the petitioner?

It is contended on the part of the state, and authorities are cited to sustain the proposition, that a warrant is not returnable at any particular time and it continues in force until it is fully executed. We are not satisfied with this view of the law under our statute. It is true that a warrant is not made returnable at any particular time, but section 1755, Gen. St. 1901, seems to impose upon the sheriff the duty of making due return of every writ or process delivered to him to be executed. It is not contemplated that a warrant should be issued and should never be returned unless the person thereby ordered to be arrested should be apprehended and the warrant served. Neither is it the policy of the law that crimes, murder, and treason excepted, should become the subject of judicial investigation and punishment many years after they are committed unless the guilty person absents himself from the state or so

conceals himself that process cannot be served upon him or conceals the fact of the crime. The county attorney is the representative of the state in criminal prosecutions and, subject only to a limited direction by the court, controls such actions. No crime can be prosecuted by indictment or information in his county without his signature to the indictment or information. State v. Brown, 63 Kan. 262, 65 Pac. 213; Gen. St. 1901, §§ 5540, 1777. The county attorney is also the legal advisor of the sheriff and other county officers. Gen. St. 1901, § 1779. These things being true, it must be that the county officers, including the sheriff, are justified in acting upon the advice of the county attorney, and when the sheriff, by the direction of the county attorney, returns a warrant, which has been placed in his hands for service, to the court that issued it, this ends the official connection of the sheriff with such warrant, renders the warrant functus officio, and effects an abandonment of the prosecution by the state. After the sheriff in this case had returned the warrant to the justice of the peace who issued it there remained nothing to evidence the pendency of an action against the petitioner except the complaint which had been filed before the issuance of the warrant. The Legislature of this state has not provided what shall be deemed a commencement of a criminal prosecution, but the mere filing of a complaint and the issuing of a warrant thereon are not sufficient to toll, the statute of limitations. Referring to the tolling of the statute, it is said in Re Clyne, 52 Kan. 441, 35 Pac. 23: "We think the better rule is that the complaint must be filed and the warrant issued within the period limited by the statute; that it must be issued in good faith, and with the intention that it be presently served; and that the officer must proceed to execute it according to its commands; that he must make the arrest within a reasonable time and at the first reasonable opportunity offered him." It follows that as the warrant under which the sheriff was acting was without vitality when he arrested the petitioner in March, 1906, and as no fact existed to toll the running of the statute since June 25, 1901, no criminal action could be maintained against the petitioner for the offense alleged to have been committed in 1899. It also follows that the arrest and confinement of the petitioner was illegal.

It is the judgment of the court that the petitioner be discharged. All the Justices concurring.

(74 Kan. 406)

Ex parte WRIGHT.

(Supreme Court of Kansas. July 6, 1906.) INSANE PERSONS-RESPONSIBILITY FOR CRIME -ARRAIGNMENT BEFORE MAGISTRATE-COMMITMENT IN DEFAULT OF BAIL.

Where a person charged with a felony is arraigned thereon before an examining magistrate, and files a plea in abatement founded up

on an adjudication regularly and duly had before a probate court of that county that the defendant is insane, the examining magistrate, in the absence of any other showing or adjudication upon the question of the defendant's mental condition, cannot proceed with such examination or hold the defendant to bail to answer to such crime, and a commitment in default of bail under such circumstances is void. (Syllabus by the Court.)

In the matter of the application of Wesley D. Wright for a writ of habeas corpus. Writ allowed.

Dale & Amidon, for petitioner. C. C. Coleman, Atty. Gen., and J. A. Brubacher, for respondent.

GRAVES, J. This is an application for a writ of habeas corpus. The petitioner is confined in the Sedgwick county jail under an order of commitment issued by the judge of the city court of the city of Wichita as an examining magistrate. The petitioner claims that he was insane at the time of the preliminary examination, and could not be held to answer to or defend against the charge made against him. The facts, briefly stated, are: The petitioner was duly charged in the city court of the city of Wichita, with having on March 20, 1906, committed the crime of burglary and larceny. He was arrested and arraigned March 26, 1906. At that time the petitioner demanded a preliminary examination, and the case was thereupon continued to March 30th, at 9 a. m. March 30, 1906, when the case was called, the county attorney obtained leave to file an amended complaint, which was done at once. A new warrant was issued and served by the arrest of the defendant immediately. The petitioner was then and there arraigned, and he again demanded a preliminary examination. By consent the hearing thereof was continued to April 3, 1906. On April 3d, when the case was called, it was again continued by consent to April 4, 1906. When the case was called on April 4, 1906, the defendant filed a plea in bar, which was overruled, and the preliminary examination proceeded, resulting in an order requiring the petitioner to give bond in the sum of $750 for his appearance at the next term of the district court to answer to the charge of burglary and grand larceny. In default of bail he was committed to jail, where he still remains. On March 29, 1906, an affidavit was filed in the probate court alleging the insanity of the petitioner. An examination was had April 3, 1906, which resulted in a verdict finding the defendant insane. This verdict was the foundation of the plea in bar. It is here urged that the legal effect of this verdict was to oust the examining magistrate of jurisdiction to proceed, and that all action thereafter was void. It is universally conceded that a defendant cannot be compelled to answer to or defend against a crime, when by reason of an in

If the plaintiff had seen fit at the trial to rely wholly upon a claim of negligent conduct by the defendant, he would doubtless have been entitled to insist that his petition be construed accordingly. But in the opening statement to the jury made on his part the case was described as founded upon the statute, and instructions were asked in his behalf to that effect. By invoking the statute, the plaintiff invited instructions based upon the theory of a direct and intentional setting fire to the prairie; for that is the only character of act to which the statute applies, and he cannot now contend that no such issue was involved.

Criticisms are made of specific instructions, as not correctly stating the law of negligence. The instructions so complained of, however, had relation to the case viewed as an action on the statute, and the two aspects of the matter were separately and distinctly stated so that no confusion was likely to result. Other instructions are objected to as having no support in the evidence, but, upon an examination of the whole record, we conclude that these objections are not well taken. Complaint is made that the court in one instruction in defining reasonable care in the handling of fire omitted to refer to the circumstances under which it was claimed that the fire was started. This feature might well have been incorporated in the instruction, but it cannot be said that its omission was material error, especially as the record does not show that it contains all the instructions that were given. This consideration also makes it unnecessary to examine an assignment of error with regard to instructions which were asked by the plaintiff and refused by the court. Error is assigned with regard to the rejection of documents offered by the plaintiff to show his right or title to a part of the lands over which the fire extended. If there was any error in these rulings it was not material since the evidence only went to the extent of the plaintiff's damage and he failed of any recovery whatever. Complaint is also made of the exclusion of the testimony of a witness offered in rebuttal and of a comment made by the court upon an answer given by another witness. No substantial prejudice appears to have resulted to the plaintiff however from either incident.

The only remaining specification of error requiring discussion relates to an attempt made by the plaintiff to impeach one T. M. Ellsworth, a witness called by the defendant, by showing that he had made a statement out of court inconsistent with his testimony. This witness was originally called by the plaintiff. He was an employé of the defendant, both when the fire occurred, and at the time of the trial. There is nothing in the record, however, to indicate that this circumstance affected either his manner upon the stand or what he there said, or that the

plaintiff was misled by him. He told at the instance of the plaintiff what he knew of the occurrences on the day of the fire, but showed no personal knowledge as to how it originated. Later he was called by the defendant, and went over much the same ground, giving additional particulars as to physical conditions observed by him before, during, and after the fire. On cross-examination he was asked if he had not, at a time and place specified, told two persons that Marriage had been charring posts, and had let the fire get out. He answered that he had not. Upon the rebuttal the plaintiff produced these two persons, and offered to show by them that Ellsworth had made such a statement to them. An objection to the offer was made by the defendant, and the court sustained the objection. This ruling is the one involved in the specification of error now under consideration. Manifestly the evidence offered was incompetent except, as it might be deemed admissible for the purpose of impairing the credibility of Ellsworth; that is, of impeaching him. The question is therefore presented whether a litigant who first uses a witness may afterwards attempt to impeach him if in the meantime he has been called upon to testify in behalf of the adverse party. This question is considered in Wigmore on Evidence, where the whole subject of the impeachment of witnesses is discussed, historically with the painstaking thoroughness, and in the light of reason with the discriminating insight. characteristic of that work. The conclusion is there reached (volume 2, § 913) that the usual rule which forbids a party to impeach his own witness operates to prevent an attempted impeachment by one who has first used a witness, notwithstanding that the opposite party afterwards calls him. The rule referred to is enforced in this state, where there are no special circumstances which would make its application work an injustice. State v. Keefe, 54 Kan. 197, 38 Pac. 302. No such circumstances are here shown. We think that for the purpose of this rule Ellsworth was to be deemed the plaintiff's witness, and that it was not error for the court to refuse to admit the impeaching evidence.

The judgment is affirmed. All the Justices concurring.