its willingness to meet all the other conditions imposed upon it, and to accept the benefit of the additional discount. If it intended that the check should be paid, it could have lost nothing by having it certified, and ordinary fairness would forbid its being heard to say that it had any other purpose. The judgment is affirmed. All the Justices concurring. STATE v. VAN WORMER. (No. 21255.) (Supreme Court of Kansas. July 6, 1918.) (Syllabus by the Court.) 1. HOMICIDE 111, 341-SELF-DEFENSE PREJUDICE-INSTRUCTION-APPEAL. In a prosecution for a homicide which_resulted in a conviction of murder in the first degree, the court instructed the jury that, in order to convict, they must find, in addition to the other elements constituting that offense, that the defendant killed the sheriff while he was resisting arrest by him under a warrant charging a felony. Held, that under the conditions shown the plea of self-defense was not available to the defendant if he killed the sheriff while resisting arrest, and inasmuch as the verdict necessarily implied a finding (if the instructions were followed) that such was the case, the omission to instruct upon self-defense was not prejudicial, unless upon the theory that by reason thereof the jury may have been led to disregard the instruction referred to. 2. ARREST 65-HOMICIDE 253(1), 341 FAILURE TO CHARGE- SELF-DEFENSE GREES RIGHT OF SHERIFF. DE Held, that in such a case the omission to instruct upon self-defense, and upon second degree murder and manslaughter, does not require a reversal because upon the whole record the verdict appears to be based upon satisfying evidence, and there seems to be no substantial probability that the jury acted in disregard of the instructions given. The fact that a constable of the same county had already undertaken to take the defendant in custody on a charge of disturbing the peace, and to deputize two bystanders to guard and protect him, did not affect the right of the sheriff to arrest him, even if the conduct of the constable and his assistants was in good faith, and the evidence hardly leaves a doubt that it was collusive. 3. HOMICIDE 300(3)—RESISTANCE OF ARREST-INSTRUCTION. In such a case it is not error to instruct that: "In every case where one person has a right to arrest or restrain another, the other can have no right to resist since the two rights cannot coexist; and, where a person thus having the right to arrest another is killed by the latter in the resistance of such arrest, the resistance is a crime, and the killing is a homicide in the commission of an unlawful act. No right of selfdefense can arise out of such circumstances." Such instruction does not negative the right to resist the use of undue force by the officer; and, under the evidence in this case, it does not seem likely that the jury so interpreted it. 4. INDICTMENT AND INFORMATION 52(2) VERIFICATION-AUTHORITY OF NOTARY PUBLIC "ADMINISTER OATHS PERTAINING TO ALL MATTERS WHEREIN OATH IS REQUIRED." The statute (Gen. St. 1915, § 6744), authorizing notaries public to "administer oaths pertaining to all matters wherein an oath is required," qualifies them to take the affidavit in verification of an information in a criminal case. - 5. CRIMINAL LAW 636(3) MOTION TO QUASH JURY PANEL-PRESENCE OF DEfendANT-WAIVER. Upon the hearing of a motion to quash a jury panel in a felony case, evidence of the county clerk was used which was taken at his house on account of his sickness, the defendant not being present. The attorneys for the defendant were invited to attend the taking of the testimony, but declined. No request to be allowed to be present was made in behalf of the defendant, nor was any objection made to the proceeding until after the testimony had been read in evidence, and argument on the motion had been invited by the court. Held, that the defendant's rights to be present at the taking of the testimony were waived. 6. CHANGE OF VENUE PREJUDICE OF TRIAL JUDGE STATEMENT. A motion for a change of venue on the ground of prejudice of the judge held to have been properly overruled. 7. CRIMINAL LAW 1151-Refusal of CONTINUANCE-DISCRETION OF TRIAL COURT. A stipulation was made by the county attor ney for the taking of depositions in behalf of the defendant in a murder case, a waiver of the regular procedure being included. An attorney designated by the Attorney General to conduct the prosecution gave notice that, while he would try to be represented at the taking of the depositions, if he failed in that, he would challenge the validity of the stipulation, on the ground that it was collusive and unauthorized. depositions were not taken, the defendant's counsel giving as a reason that they could not be filed one clear day before the trial and therefore The could not be used except by agreement. A con tinuance was asked on behalf of the defendant to enable him to procure the evidence. Held, that it was a fair question for the trial court whether it should be granted, and its refusal did not constitute error. 8. COMPETENCY OF JUROR-RULING. Rulings of the trial court sustaining the competency of challenged jurors held not to have been erroneous. 9. CRIMINAL LAW 393(2), 719(4) — HOMICIDE 164, 165, 169(8), 338(1, 2)—ADMISSION OF INCRIMINATING EVIDENCE-ARGUMENT. Rulings admitting evidence held not to have constituted reversible error. 10. HOMICIDE 339-EVIDENCE-ARREST OF DEFENDANT. Rulings excluding evidence held not to have been prejudicial. 11. ARGUMENT OF COUNSEL-CRIMINAL CASE. The argument of counsel for the prosecution held not to have so far transgressed the proprieties as to require a new trial. (Additional Syllabus by Editorial Staff.) 12. INDICTMENT AND INFORMATION ~196(4) VERIFICATION WAIVER OF IRREGULARI TIES. Appeal from District Court, Hamilton County. Don Van Wormer was convicted of murder in the first degree, and he appeals. Affirmed. S. B. Amidon, of Wichita, L. A. Madison, of Dodge City, Samuel Yaggy, of Syracuse, F. S. Macy, of Liberal, and S. A. Buckland, of Wichita, for appellant. Mayo Thomas, of Elkhart, H. E. Walter, of Syracuse, G. Porter Craddock, of Richfield, S. M. Brewster, Atty. Gen., John W. Davis, of Greensburg, and George Getty, of Syracuse, for the State. MASON, J. On July 22, 1916, at Rolla, in Morton county, Don Van Wormer shot and killed Martin C. Moore, the sheriff. He was convicted of murder in the first degree, and appeals. defendant again got away and ran back into the house, procured the shotgun, and fired the fatal shot through the doorway; that the sheriff in the meantime, having been re leased by his assailants, had gone to a car near by, and returned with a revolver in his hand, and was standing near the door when shot. The version of the affair undertaken to be given by the defendant's witnesses (including his friends who are charged with aiding him in resisting the officer), in its most favorable form for him (the state plausibly contending that it was much weakened upon cross-examination), was to this effect: When the sheriff told him he had a warrant for him, the defendant asked him to read it. He answered that he did not have to, at the same time producing the warrant, which the defendant took from his hand. As the defendant was reading the warrant, stepping back while he was doing so, the sheriff struck him a violent blow in the face, and followed it up with others. The defendant did not resist arrest, and his friends interfered no further than to protest against the sheriff's unneces sary violence. [1] 1. Many assignments of error are made. That which we regard as the most important grows out of the fact that the court refused to give any instructions with regard to the law of self-defense. There is little difference of judicial opinion with respect to the availability of self-defense as a plea in behalf of one who kills an officer who is endeavoring to arrest him. If the officer is authorized to make the arrest and the accused knows it as was clearly the case here, and proceeds in a At about 6 o'clock in the afternoon of the day of the homicide the defendant was in his real estate office, which was also his residence, with several friends. The sheriff came to the office with the purpose (according to his own later declaration) of arresting him upon the charge of having wounded one Lewis Perkins by shooting him, Perkins appearing to have been shot in the face shortly before by some one, probably the defendant, but his injury was not severe, and was doubtless accidental. However, this is not important in the present' case. A conversation then took place between the defendant and the sheriff, which is variously reported, but according to witnesses produced by the defendant, who were manifestly very friendly to him, he ask-proper manner, no such issue can arise. If ed the sheriff if he had a warrant for him, and, on receiving a negative answer, ordered him to go on away, telling him to get a warrant if he wanted to arrest him, and saying that he was going to take a shot at his garage, which was opposite the door where the sheriff stood, so that he was nearly in line with it. The defendant almost immediately fired through the screen door with a shotgun, the charge striking the garage. The sheriff then went to a justice of the peace, procured a warrant, charging the defendant with an assault upon himself with intent to kill, and, returning to the defendant's office, told him he had a warrant for his arrest. The defendant asked to see it, and the sheriff showed it to him. There is a direct conflict as to what then took place. One of the state's witnesses, the county's representative in the Legislature, whose testimony was corroborated in all essential particulars by others, testified, in substance, that the defendant resisted arrest, and that his friends aided him, a violent scuffle ensuing; that the sheriff succeeded in getting the defendant through the door and out of the building, when he wrenched loose; that blows were exchanged and another scuffle took place, the defendant's friends as the officer, however, although armed with a sufficient warrant, uses unnecessary and unreasonable force, or wanton violence, this may be repelled under the ordinary rules of self-defense, even to the extent of taking life; but acts done in resistance of the arrest itself cannot be so justified under any conditions present in this case, although the distinction may not always have been noted. 13 R. C. L. 867; 5 C. J. 750; 21 Cyc. S03: notes, 33 L. R. A. (N. S.) 143; 84 Am. St. Rep. 679; 4 Ann. Cas. 844. Some courts go farther than others in applying the rule so as to protect the rights of the officer, (see, for instance, State v. Durham, 141 N. C. 741, 53 S. E. 720, 5 L. R. A. [N. S.] 1016), but there is a substantial agreement as to the principle by which cases of this kind are controlled, although there is some variation in the language used expressing it. It is held in Kentucky that a plea of self-defense is tenable where the defendant resists arrest and kills the officer attempting it, under a reasonable, but mistaken, belief that he is not acting in good faith. Fleetwood v. Commonwealth, 80 Ky. 1: Minniard v. Commonwealth, 87 Ky. 213, 8 S. W. 269. We think that doctrine too liberal to the accused, but in any event it approved in the North Carolina case referred | first degree murder by the statute. Gen. Stat. to, that, where the officer to the defendant's 1915, § 3367. That the killing was done under knowledge has lawful authority to make the such circumstances need not be specifically arrest, it is his duty to submit, and, where he pleaded. 21 Cyc. 840. If the jury followed is resisting the process of the state, no right the directions of the court, their verdict, as of self-defense can arise. already stated, implied a finding that the defendant did kill the sheriff while resisting arrest, rendering him guilty of murder in the first degree, and they had no occasion to know what would constitute second degree murder or manslaughter. But if the jury had concluded that the defendant did not resist arrest, then they would have had need to know the constituents of these inferior degrees, and the question remains: Is there a reasonable probability that the omission to give them that information for their use in that contingency, which did not occur, influenced them in deciding the separate and independent question whether the defendant resisted arrest? Convictions of murder in the first degree have been set aside by this court because of the omission to instruct upon the lower degrees of homicide, where such an instruction was warranted by any reasonable theory of the evidence. State v. Curtis, 93 Kan. 743, 145 Pac. 858. But it does not fol low, nor is it true, that a reversal is always required in such a case. Of that situation it has been said: From what has already been said it is clear that the evidence was sufficient to raise an issue involving the right of self-defense, and that instructions thereon would have been pertinent. However, most, if not all, of the prejudicial effect of the omission to instruct on that subject was cured by the fact that the jury were told, in substance, that there could be no conviction unless, in addition to finding all the elements of ordinary first degree murder, they believed that the killing was done while the defendant was resisting arrest, or was attempting to escape from the custody of the sheriff. The jury therefore by their verdict of guilty necessarily found, if they followed the court's instructions, that the homicide was committed in resisting arrest, or in escaping from custody, which under the circumstances here present is substantially the same thing, and this eliminated all question of self-defense, for that plea would not then be available. [2] 2. The court might well have told the jury that if they believed the defendant resisted arrest the element of self-defense could not enter into the matter, but that if they concluded that he did not resist arrest, or if they were not convinced of the fact beyond a reasonable doubt, then they should further consider whether in killing the sheriff he acted under a reasonable belief that the act was necessary to protect himself from great bodily harm or death. If the jury faithfully followed the charge of the court, the omission of the instruction regarding self-defense was not material, because, having decided that the defendant did resist arrest, they would have had no occasion to apply such an instruction. The doubtful question is whether the failure to submit this issue may have influenced the jury in their finding upon the matter of resistance of arrest. It had no legitimate or logical bearing thereon-it could not affect the decision of the jury if they followed their instructions--but the question is whether it might have led to a disregard of them, and so resulted in a verdict which might otherwise not have been agreed to. This question associates itself closely with another, whether reversible error was committed in instructing that but two verdicts were possible, that there must be either a conviction of murder in the first degree or an outright acquittal. The same situation is presented-if the defendant killed the sheriff while resisting arrest, or attempting an escape therefrom, he was guilty of murder in the first degree because such resistance or escape is itself a felony (Gen. Stat. 1915, §§ 3553, 3572), and a homicide committed in the perpetration of a felony, being murder at the "Where the jury under proper instructions have found a defendant guilty of every element of the superior offense, erroneous instructions, or a total failure to instruct with reference to an offense inferior in degree, and including less criminality, cannot logically be said to have influenced the jury. The failure of the court can only be said to be prejudicial to the defendant prehend the definition of the superior degree, or on the theory that the jury failed to fully commisconstrued and misapplied the law to the facts. To indulge in such presumptions, even though we know that mistakes are made by juries and courts alike, is to overturn the whole theory of the administration of justice." State v. McCarty, 54 Kan. 52, 59, 36 Pac. 338, 340. "Generally, error in failing to instruct or in giving wrong instructions upon lesser degrees or offenses works no prejudice when the defendant is convicted upon satisfying evidence of a higher charge, under correct instructions relating to it. Should it appear that, if omitted instructions, duly requested or clearly required by the evidence, had been given, the jury might naturally and probably have convicted of a lesser degree or offense, the omission will constitute prejudicial error." State v. Winters, 81 Kan. 414, 421, 105 Pac. 516, 518. The problem is the familar one of determing whether an erroneous ruling in the presentation of a case to the jury is of such character as to require the setting aside of a judgment founded upon their verdict. Where the matter, for instance, is one of the admission of incompetent evidence, the question is not what effect the objectionable testimony has upon the appellate court's opinion of the facts, but what effect it may be presumed to have had upon the jury. A judgment must often be reversed without the reviewing court being at all sure that the error committed influenced the verdict; and, times be affirmed without the reviewing the defendant in charge of his two friends. court being sure that the error did not influence the verdict. Absolute certainty is not necessary or practicable. The mere possibility of prejudice is not enough to require a new trial. Nor does the test to be applied admit of a more precise statement than that the tribunal charged with the duty of deciding upon the materiality of the erroneous ruling shall, according to its best judgment, determine whether there is such a reasonable likelihood of its having affected the verdict that the interests of justice require a new trial. In the present case, there is much to indicate that, notwithstanding any errors committed, the jury have decided the vital matters in dispute exactly as they would have done if every rule of procedure had been strictly followed, and have reached a conclusion that the defendant was guilty of murder in the first degree upon satisfactory evidence of that fact. The real controversy was whether the defendant resisted arrest. A part of the testimony given in his behalf tended to prove that he merely resisted the exercise of undue and unreasonable violence by the sheriff, but the jury clearly discredited this claim, upon abundant evidence, the force of which cannot be fully appreciated without a statement of a subsidiary issue that was brought into the case by him. He did not take the stand himself, nor was any statement to the jury of his defense, or any argument to them in his behalf, made by his counsel. But from the evidence given by his witnesses and the offers of proof made by his attorneys it is plain that he relied upon a claim that before the sheriff attempted to serve his warrant the defendant had been placed under arrest by a constable, who had deputized two bystanders to take charge of him, and that by reason of his being already in their custody the sheriff had no right to take him in charge. Much of the evidence introduced and offered by the defense was in relation to this matter. It is difficult to discover any bearing of this on the merits, unless as a justification of resistance to the arrest by the sheriff. The trial court by various rulings held, in substance, that the acts of the constable interposed no legal barrier to the service of the warrant by the sheriff. Assuming that the constable was authorized to make an arrest, and that he and his purported deputies were acting in good faith, the sheriff was entitled to take charge of the defendant because he held a warrant charging the commission of a felony, while the offense for which the constable undertook to hold him was that of disturbing the peace, and the sheriff was the principal peace officer of the county, in aid of whom the constable professed to be acting. Moreover, it is difficult to believe that the evidence leaves any room for substantial doubt that the sole purpose of the purported was to obstruct the sheriff in his attempt to arrest him. This being a matter of the greatest importance as bearing upon the real merits of the case, a statement of a part of the evidence in some detail seems warranted. The constable testified that he followed the sheriff on his first trip to the defendant's office because some one called to him that the sheriff wanted a man to go with him, his purpose being to assist him; that he made the arrest after the sheriff had left to get a warrant; that later he put the defendant in charge of Walter Littell and J. C. | McCarty, and went to the justice of the peace and obtained a warrant, without filing a complaint, charging the defendant with disturbing the peace. A part of his crossexamination with regard to the circumstances attending this arrest reads as follows: "Q. You have said that you went up and placed Don Van Wormer under arrest, on the charge of disturbing the peace, because of something That's correct, isn't it? Now, I will ask you that Walter Littell came and said to you. if that is correct. A. Well, yes. Q. What did Walter Littell say to you that caused you to go and put Don Van Wormer under arrest, on a Don (the defendant) wants to see you, Fred,' charge of disturbing the peace? A. He says. were his exact words. Q. Is that all that he said, that caused you to go? A. Yes, sir. Q. And then you walked right in and put Don unA. I walked right in, and Don surrendered to der arrest, for disturbing the peace, did you? me. Q. And you put him under arrest for disturbing the peace, didn't you? A. I fetched no charge again him, sir. Q. Well, what did you arrest him for? A. Because he surrendered to me. Q. Well, on what charge did you take him into your custody? A. As I said, no charge. He preferred no charge against him. Q. Haven't you said that you did that on the ground of disturbing the peace? A. That was my warrant that I got. Q. But didn't you-for what reason did you take him into your custody, without the warrant? A. Because he surrenhe done to surrender to you, on any kind of a dered to me. Q. Surrendered to you? What had charge, or for any reason whatever? A. He told me he wanted to surrender to me. Q. On what charge? A. There was no charge mentioned at that time. Q. Well, on what charge did you hold him? A. As I said, I hadn't fetched no charge against him. Q. Did he say why he wanted to surrender to you? A. Well, yes. Q. Ile made a statement to you? A. Yes, sir. Q. What did he say he had done, for which he wanted to surrender? A. He says 'I am willing to surrender to my home officer.' (This answer was stricken out as not responsive to the question, but it was later repeated in subcommitted, that he wanted to surrender to you? stance.) Q. What crime did he say he had Q. Or for any crime. A. He didn't say any crime. Q. He didn't say any crime? A. No. sir. Q. No crime at all? A. No, sir. Q. Now you say that when you first went up there without a warrant, you didn't take him into your custody or charge, because he had disturbed the peace? A. I arrested him. Q. For disturbing the peace? A. I had no I preferred no charge Well, why did you arrest him? Q. What reaagainst him. Q. You didn't? A. No, sir. Q. son did you act upon in going into his office at the time you went in, that night, without any enforce the law. Q. To enforce what law? A. warrant and putting him under arrest? A. To The laws of the state of Kansas. Q. What 1080 forcing? A. Well, the laws in general. Q.ception as to their duty in the matter, this The justice of the peace who issued both warrants testified that the first warrant was upon a charge of disturbing the peace, a "general charge," "there was no particular person mentioned"; that he issued it to the constable, at his request, to hold the defendant in custody while he should see about the sheriff's complaint and warrant, whether he would still issue it or not; that his intentions a moment after handing the warrant to the constable were that he should hold the defendant until the sheriff should arrive with his warrant. The defense made an offer, which was rejected, to prove by the constable: "That when the sheriff came there, this witness and the Littells and McCarty, being the parties with whom he had left the defendant, in their charge, told the sheriff that they had a warrant for the defendant, and they were about to take him down to Justice Perkins' place for trial, and told him that they would not permit him, the sheriff, to take him away from them, and ordered the defendant not to go with the sheriff, and that this order was made in the presence of Moore." J. E. McCarty, one of the persons deputized by the constable, testified in chief that the constable said that they should guard and "protect" the defendant, a statement which was stricken out by the court on motion of the state. The defense then offered, the offer being denied, to show that the constable said to the witness: "I don't want you to give him (the defendant) up to anybody, and I don't want you to let anybody take him away." An offer was also made to show that Walter Littell said to the sheriff, speaking of the defendant: "He is already under arrest. He is our prisWe are ordered to hold him, and we are going to hold him." oner. McCarty testified that he told the sheriff "for him to just wait until Fred Thompson came and relieved us, and he could have nim." Of course the defendant is not absolutely Zound by the statements of his witnesses. But the trend of the testimony generally, as well as of the particular passages referred to, is to show that the attitude of the defendant was that he had a right to resist arrest because he was already in charge of the constable. As already indicated, we hold that the arrest by the constable would have offered no justification for resistance to the sheriff if it had been absolutely regular and in good faith. And it may be said almost as a matter of law to have been a mere sham and pretense; there is so little room for a real doubt on the subject. It clearly originated with the defendant as an excuse for resisting the sheriff, and the conclusion is almost irresistible that those participating in it were acting from the same motive. But if they were actually under a miscon In view of these considerations, we feel entirely confident that the decision of the jury that the defendant killed the sheriff while resisting arrest, and was therefore guilty of murder in the first degree, was based upon satisfying evidence, and was not influenced by the omission of the court to give instructions as to what the verdict should be in case they failed to find that fact. It follows that a reversal is not required by the absence of instructions regarding self-defense and the inferior degrees of crime. The argument against this view is that the jury, although not convinced that the defendant had resisted arrest, may have felt that he ought not to escape punishment altogether, and have been moved by that consideration to disregard the instructions of the court and return a verdict of murder in the first degree to avoid an absolute acquittal. If the element of resisting arrest were not in the case, the fact that the jury were not given an opportunity to decide between first and second degree murder, according to whether or not they found the homicide to to have been deliberate and premeditated, Would have left more room for invoking this theory, because the one degree of the crime ordinarily so grades into the other as to give greater opportunity than is here presented for choice between them, and make the formation of a satisfying decision on the subject the more difficult. But the question whether the defendant resisted arrest was a matter of physical fact, more readily and definitely determinable than one concerning a state of mind, and it was the outstanding issue of the case, about which everything else revolved. The possibility that the jury may have proceeded upon the ground suggested appears to us to be too remote to be made a reason for ordering a new trial. [3] 3. In behalf of the defendant it is urged that the instructions of the court amounted to a peremptory charge to convict, because they in effect advised the jury that all that was necessary to require a conviction was that the sheriff should have attempted to arrest the defendant, and should have been killed by him. We do not think this a fair interpretation of the instructions. The distinction between resisting an arrest and resisting unjustifiable violence of the officer making the arrest is not obscure, but is one readily grasped by the jury, and the charge as a whole made it clear that the issue was whether the defendant resisted the lawful demands of the officer. The court instructed the jury in these words: "In every case where one person has a right to arrest or restrain another, the other can have no right to resist, since the two rights cannot coexist; and. where a person thus having the right to arrest another is killed by the latter in the resistance of such arrest, the resistance is a crime, and the killing is a homicide in the commission of an unlawful act. No right |