Friend v. Miller

52 Kan. 139

Opinion

The opinion of the court was delivered by

JOHNSTON, J.:

Sim 'recias "uue.oUlcr The demurrer to the evidence admitted every fact and conclusion which the testimony most favorable to the defendants below tended to prove. The court could not weigh conflicting testimony nor withdraw the case from the jury because the testimony tending to establish the defense was weak and unsatisfactory. It could not direct a verdict in favor of Miller unless the opposing parties entirely failed to offer proof tending to establish something essential to the maintenance of their defense. (Railway Co. v. Couse, 17 Kas. 571; Brown v. Railroad Co., 31 id. 1; Christie v. Barnes, 33 id. 317; Sullivan v. Insurance Co., 34 id. 177.) An examination of the testimony and of the rulings of the court, to gether with its explanatory remarks, convinces us that there should be another trial of the cause. There was testimony tending to show that, when the note was given, a criminal prosecution was pending in the courts of the territory of Utah against Friend and Osborn upon a charge of forgery. This was shown by a record of the proceedings in the Utah court, authenticated as the law requires. The contention that the proceedings were not sufficiently authenticated to entitle them to be used as evidence in the courts of this state is not good. The court can take notice of the constitutions of other states constituting courts, and it can also take notice of the acts of congress providing for the organization of territories and the creation of courts therein, so far as the jurisdiction of such courts is shown. (Dodge v. Coffin, 15 Kas. 277; Haynes v. Cowen, 15 id. 637.) Within the rule of these authorities, the authentication in question was amply sufficient, and justified the admission of the record. • More than that, it was admitted and considered by the court, and may justly be considered by this court, in determining whether there was sufficient testimony offered to take the case to the jury. There was testimony tending to show that the prosecution was begun at the instance of Miller, who had employed counsel to assist in the prosecution, and had spent money to procure evidence to sustain the charge. There was other testimony tending to show that he had the control and possession of written testimony important and material to a successful prosecution. A number of civil actions between these parties had been commenced, and, to settle all differences between them, an agreement was made for the compromise and dismissal of the civil actions; and this agreement appears from some testimony to have involved also the discontinuance of the prosecution in Utah, and the surrender by Miller of the testimony of which he had control that might be used in that prosecution. In consideration of these agreements, the note in question was given.

2' feijmy-voias There can be no question that an agreement for the purpose of stifling criminal prosecutions, or for the withholding of proof so as to obstruct the course of public justice, is absolutely void. The defendants in the prosecution were charged with a forgery, and the compounding of such an offense is itself a felony. An agreement or understanding, express or implied, to conceal a felony, or to abstain from a prosecution thereof, or to withhold any evidence thereof, is punishable by confinement at hard labor for a term not exceeding five years. (Crimes Act, § 161.) If the consideration for the note was that Miller should withhold or suppress material evidence and prevent further prosecution of the charge, or if these things were a part of the consideration for the note, it would vitiate the whole, and no recovery could be had upon it. (Gerlach v. Skinner, 34 Kas. 86; Hinnen v. Newman, 35 id. 709; Haynes v. Rudd, 102 N. Y. 372.) There is testimony that part of the consideration for the note was that Miller should surrender the instrument alleged to have been forged, together with certain depositions pertaining to the same matter, and that. Miller said that, if the note or the money were not given to him, the criminal prosecution in Utah could not be dismissed, and the deed and evidence could not be surrendered. It was also testified that a part of the agreement was reduced to writing, and a part was not, Miller saying that, if the agreement with reference to the Utah matter was reduced to writing, it would criminate him. The written agreement which is in evidence, after providing for the settlement of other controversies, provided that Miller should

“Not employ or assist in the employment of counsel or other persons to conduct or assist in conducting a certain action now pending in the territory of Utah wherein the people of the territory of Utah are plaintiff, and H. F. Friend and N. E. Osborn are defendants, or to furnish or provide any money or obligation for the payment of money to assist in the prosecution of such action, or furnish money to procure the presence of any parties at said trial.”

'to vary written contract. 4' {my.tion for It is contended that the written agreement must be presumed to have embraced the whole understanding of the parties, and that testimony showing a different understanding or agreement than that reduced to writing should have been excluded, and, although not excluded, was entitled to no consideration by the court. It is probable, as contended, that the provisions of the written agreement not to employ counsel qr other persons to assist in conducting , the prosecution in Utah, and not to provide money or obligation for money to carry on the prosecution, or to procure the presence of witnesses at the trial, may not be in violation of law or morals; but this writing will not prevent the parties from showing the exact consideration for the note, although it might, to some extent, be at variance with the writing. Parol testimony is admissible, not to contradict the instrument, but to show that it is illegal and altogether void. “The rule which forbids the introduction of parol evidence to contradict, add to or vary a written instrument does not extend to evidence offered to show that a contract was made in furtherance of objects forbidden by statute, by common law, or by the general policy of the law.” (Martin v. Clarke, 8 R. I. 389; Reed v. McKee, 42 Iowa, 689; Grreenl. Ev., § 284; Browne, Par. Ev., §§ 33, 34; Jones, Const, of Con., § 191.) Under the rule of these authorities, some of the testimony which was excluded should have been admitted; but there was enough of that which was admitted to carry the case to the jury. It is true that the evidence respecting the agreements of the parties as to the Utah prosecution is weak and somewhat contradictory, and,, possibly, if submitted, the jury might have brought in such a verdict, as the court directed. The plaintiffs in error, however, were entitled to have the testimony, with all its contradictions and inconsistencies, submitted to the jury, and the value and sufficiency of the same were questions for their determination. The averments of the answer were somewhat general with respect to the illegal agreement, but they were not attacked upon this ground except by objections to testimony when the court refused to permit an amendment. Under the circumstances, we think that the proof offered was entitled to consideration. As there must be a new trial of the cause, the averments of the answer may be made as specific as is necessary.

The error of withdrawing the case from the jury and directing a verdict compels a reversal of the judgment and the remanding of the cause for another trial.

All the Justices concurring.