the judgment. The remarks of one of the attorneys representing the prosecution, in his closing argument, were not so intemperate or prejudicial as to demand, in our opinion, a new trial. Winter v. Sass, 19 Kan. 566; State v. Comstock, 20 Kan. 650.

STATE V. MOSLEY.

Filed February 7, 1884.

1. The statute authorizes the charging of an accessory hefore the fact as a principal. State v. Cassady, 12 Kan, 550.

2. Upon the trial of an accessory before the fact, the record of the conviction of the principal is proof prima facie of that fact; but this is not conclusive, and other evidence of the commission of the crime by the principal is admissible.

3. Upon the trial of a defendant charged with a criminal offense, the latter rested without testifying. The state introduced a witness and offered to prove certain facts, to which the defendant objected as not being proper rebuttal. Thereupon, the county attorney said to the court, in the hearing and presence of the jury: "Your honor, we had a right to presume that the defendant would testify as a witness in his own behalf, in which case this evidence would have been proper rebuttal, and he having failed to do so, we claim the right to introduce it now." Held, that these remarks to the court were not such an infringement upon the statute forbidding the prosecuting attorney to refer to the fact that the defendant did not testify in his own behalf as requires us, under the circumstances of this case, to grant a new trial.

Appeal from Lyon county.

W. A. Johnston, Atty. Gen., J. Jay Buck, and J. W. Feighan, for the State.

Peyton, Sanders & Peyton, for appellant.

HORTON, C. J. On June 5, 1882, Mary Isabel Martin and her son, E. D. Mosley, were jointly charged with the murder of Loraine M. Keiger, who died May 23, 1882, from the effect of poison. The trial of Mary Isabel Martin, the mother, was commenced on June 12, 1882. A verdict of guilty of murder in the first degree was rendered against her, and on December 29, 1882, she was sentenced. The defendant, Mosley, was tried in February following, and convicted of murder in the first degree for counseling, aiding, and abetting his mother in the commission of the murder of Mrs. Keiger. Upon the trial the record of the conviction of Mary Isabel Martin was introduced in evidence, and the court also permitted witnesses to testify to statements made by her a half hour after Mrs. Kieger died, tending to show she was guilty of poisoning her. The court instructed the jury that the record of the conviction of Mrs. Martin was prima facie evidence of her guilt. All of these rulings are complained of. The objections, how

ever, are unavailing. Section 287, c. 31, Comp. Laws 1879, reads: "Every person who shall be a principai in the second degree in the commission of any felony, or who shall be an accessory to any murder or other felony before the fact, shall, upon conviction, be adjudged guilty of the offense in the same degree and punished in the same manner as herein prescribed with respect to the principal in the first degree." And section 115, c. 82, Comp. Laws 1879, provides: "Any person who counsels, aids, or abets in the commission of any offense. may be charged, tried, and convicted in the same manner as if he were a principal." While these sections of the statute authorized the charging of defendant-an accessory before the fact-as a principal, to convict him it was necessary to establish that the mother, Mary Isabel Martin, had poisoned the deceased. It was not error to allow facts to be shown on the trial, therefore, tending to prove the guilt of the principal, Mary Isabel Martin. State v. Cassady, 12 Kan. 550. The record showing her conviction was proof prima facie of that fact, but this was not conclusive, and other evidence of the commission of the crime by her was admissible. Levy v. People, 80 N. Y. 327; Arnold v. State, 9 Tex. Ct. App. 435.

Upon the trial, after the defendant had rested without testifying, the state introduced a witness,-one Marsh,-and offered to prove certain facts, to which the defendant objected as not being proper rebuttal. Thereupon the county attorney said to the court: "Your honor, we had a right to presume that the defendant would testify as a witness in his own behalf, in which case this evidence would have been proper rebuttal, and he having failed to do so, we claim the right to introduce it now." It is claimed that in using this language to the court, in the hearing and presence of the jury, the county attorney was guilty of such misconduct that warrants the granting of a new trial. This claim is made under the provision of section 1, c. 118, Laws 1881, which reads: "And, provided further, that the neglect or refusal of the person on trial to testify, or of a wife to testify on behalf of her husband, shall not raise any presumption of guilt, nor shall the circumstance be referred to by any attorney prosecuting the case." "The neglect or refusal" of the defendant to testify was not referred to by the county attorney, except incidentally to the judge of the court, in his argument favoring the introduction of evidence. We understand the statute is explicit that when a defendant, in a criminal cause, declines to testify in his own behalf, absolute silence on the subject is enjoined on counsel in their argument on the trial, and that the courts will hold prosecuting attorneys to a strict observance of their duty in this respect, (State v. Graham, 17 N. W. Rep. 192; Long v. State, 15 Ind. 182; Com. v. Scott, 123 Mass. 239;) yet we do not think the incidental allusion to the court by the county attorney, under the circumstances, was such misconduct as requires us to grant a new trial. The remarks of the county attorney were not made in an address to the jury, were not directed to the jury, nor intended

for the jury. It is possible, and more than probable, that the members of the jury heard the remarks as they were uttered in their presence, but the county attorney evidently did not intend to infringe upon the provisions of the foregoing statute, and we cannot regard his remarks, made as they were, as material error. Calkins v. State, 18 Ohio St. 366. An examination of the affidavits does not satisfy us that the county attorney, in his closing argument to the jury, referred to the defendant's failure or refusal to testify in his own behalf. The language of the county attorney was concerning the trial of Mary Isabel Martin, and the failure of her son to testify as a witness in that case. This was made in answer to the remarks of one of the attorneys for the defendant that the latter was not present, and had not testified on the trial of his mother, and therefore her conviction should not be conclusive of her guilt against him.

In view of the decisions of this court in State v. Kearley, 26 Kan. 87, and State v. Bridges, 29 Kan. 138, nothing further need be said regarding the refusal of the court to define the phrase "reasonable doubt." We have already held that there was sufficient evidence to warrant the jury in finding Mary Isabel Martin guilty of the murder of Mrs. Keiger, (State v. Martin, ante, 781,) and we cannot, upon the record, say that there was no evidence in this case to sustain the verdict against the defendant.

The judgment of the district court must be affirmed. (All the justices concurring.)

PERRY v. SMITH.

Filed February 7, 1884.

1. In an action for money had and received, where it appears that the money was not received more than three years before the action was commenced, held, that the statute of limitations has not barred the action, although it may appear that the wrong enabling the defendant to receive the money was committed more than three years before the action was commenced.

2. And in such a case, where it appears that the defendant at the time of receiving the money, and prior thereto, was acting as the agent of the plaintiff, and that the money was received in connection with such agency, held, that the statute of limitations does not commence to run in favor of the defendant and against the plaintiff until the plaintiff has knowledge of the wrong committed by the defend

ant.

3. And held, generally, that the statute of limitations does not commence to run in favor of an agent and against his principal until the principal has knowledge of some wrong committed by the agent inconsistent with the principal's rights.

Error from Crawford county.

John T. Voss, for plaintiff in error.

D. B. Van Syckel, for defendant in error.

VALENTINE, J. On February 12, 1878, and prior thereto, W. L. Taylor, who then resided in the town of Cherokee, in Crawford county, Kansas, was the equitable owner of 40 acres of land near that town, and was the absolute owner of one-half of a town lot, with a little house thereon, situated in the town. The legal title to the land was in the Missouri River, Fort Scott & Gulf Railroad Company, but Taylor had a contract for the purchase thereof. The legal title to the half lot was in Taylor. Taylor at that time was in feeble health, and, expecting soon to die, assigned the said contract for the purchase of said 40 acres of land to his daughter Lydia, and conveyed by deed the said half lot in Cherokee to his daughter Josephine. The two daughters did not reside in Kansas, and in fact have never resided in Kansas, and have never even been in Kansas. Hence, when Taylor executed said assignment and said deed, he handed the same to E. A. Perry, who was then present, with the request that Perry should deliver the same to his daughters, which Perry agreed to do and afterwards did. Taylor also asked Perry to look after all his property, and see that his daughters got the same after his death. On March 14, 1878, Taylor died intestate, and Perry was appointed his administrator. Afterwards Perry entered into correspondence with the daughters,-Lydia then residing at Chicago, Illinois, and Josephine at Stewartsville, Indiana. Perry became the agent of the daughters for the management and sale of their property. Afterwards Perry sold the property, and out of such sales have originated two lawsuits against him; one instituted by Lydia, who was then married, and whose name was then Lydia Smith, and the other by Josephine, who was also married, and whose name was Josephine Wade. Both of these suits were commenced on May 26, 1882, before a justice of the peace in Crawford county, Kansas, where Perry resides, and after judgment they were both appealed to the district court, in which court a trial was had in each case before the court and a jury, which trial resulted in a judgment in each case in favor of the plaintiff and against the defendant, Perry; and Perry, as plaintiff in error, now brings each case to this court for review.

We shall now proceed to consider the case of E. A. Perry, Plaintiff in Error, v. Lydia Smith, Defendant in Error. The case, as it was originally brought by Mrs. Smith, was an action for money had and received; and while the defendant, Perry, claimed that he fully accounted for and paid over to Mrs. Smith all the money which he ever received belonging to her, yet we think his principal defense, and the one which he principally relied on, was and is the statute of limitations; and, in order that the grounds for this defense may be fully understood, we shall state some additional facts: The defendant, Perry, effected the sale of the said 40 acres of land on March 5, 1879. He claims that he sold the same for $50, and only for $50. There was some evidence introduced, however, showing that the defendant admitted that he had sold the property for $100; and there v.2,no.5-50

was also some evidence introduced tending to show that he received two lots in the town of Cherokee in part payment on such sale. These lots were conveyed to the defendant on October 10, 1879. There was also some evidence introduced tending to show that these lots were taken by the defendant at the price of $32; and there was still other evidence introduced tending to show that they were taken at the price of $100, and that they were worth that amount; and that afterwards, and on October 31, 1881, they were sold and conveyed by the defendant to the Kansas City, Fort Scott & Gulf Railroad Company for that amount. The said $50, admitted to have been received by the defendant as purchase money, was received by him about March 5, 1880, and was transmitted by him to, and received by, the plaintiff about that time. This was one year after the sale was made. It does not appear that anything was ever received by the defendant on the sale of the plaintiff's property prior to October 10, 1879, when the deed for said lots was received by the defendant; and it does not appear that any portion of the money received by the defendant in consideration of the sale of the plaintiff's property was received earlier than about March 5, 1880, when said $50 was received. It does not appear that Mrs. Smith had the least ground to suspect, or that she did suspect, that Perry had done anything wrong with regard to her business, or her money, or her property, until some time in March, 1880; and even then she had only very slight grounds for any suspicion; and she did not have anything more than a very vague suspicion until about the time when she commenced this action; and the defendant even yet denies the facts upon which the plaintiff bases her suspicions or her cause of action, claiming that they are not true; and she made no demand of the defendant for anything additional over and above the said $50 which she had already received, until about the time when she commenced this action. This action was commenced, as before stated, on May 26, 1882.

Under these facts, we do not think that any statute of limitations has barred the plaintiff's action. It was not three years from the time when the defendant received the conveyance for said two lots to himself until the plaintiff commenced this action. It was not three years from the time when he received the plaintiff's money on said land until she commenced this action; and it was not even one year after the plaintiff had knowledge of the defendant's wrongs until she commenced this action; and she commenced this action immediately after making the demand on the defendant for settlement and payment. It must also be remembered that the defendant received the plaintiff's money and property as her agent; and, generally, the statute of limitations does not commence to run in favor of an agent and against his principal until the principal has the knowledge of some wrong committed by the agent inconsistent with the principal's rights. Green v. Williams, 21 Kan. 64, 71, 72, and cases there cited; Auld