At the conclusion of plaintiff's testimony, the court, on motion of defendant, granted a judgment on nonsuit, and from such judgment plaintiff appeals. C. L. McNary (Frank F. Freeman, on the brief), for appellant. Geo. G. Bingham (L. J. Adams, on the brief), for respondent. MCBRIDE, J. (after stating the facts as above). We think the court below erred in holding that there was not sufficient tender made by plaintiff. The evidence tended to show that defendant had already sold his potatoes to another party, and had thereby placed it beyond his power to perform in any event. Moreover, the delivery and payment were by the terms of the contract concurrent acts. Plaintiff was to pay when the produce was delivered, not before. Under such circumstances, an offer to pay upon delivery, coupled with a willingness and present ability to do so, are all the law requires. This question is settled in this state by the decision of this court in Catlin v. Jones, 52 Or. 337, 97 Pac. 546, which was decided since the trial of the case at bar in the circuit court. The nonsuit, however, was correctly allowed upon the second ground stated. The term "about" has a somewhat flexible meaning. Thus in a contract to convey 140 acres of land it was held that the term "about" meant an approximation to that number of acres and that 13474/100 acres was too great a variation. Stevens v. McKnight, 40 Ohio St. 341. The term "about" used in a finding that a car load of lumber is about so many feet means "not far from." Indianapolis Cabinet Co. v. Herrman, 7 Ind. App. 462, 34 N. E. 579. A contract for a sale of about 300 quarters of rye did not oblige the buyer to accept so large an excess as 50 quarters over the 300, but the excess should bear a very small proportion to the amount named. Cross v. Eglin, 2 Barn. & Adolp. 106. In a contract to furnish 5,000 tons of railroad iron, it was stipulated that they were to be shipped at the rate of "about" 1,000 tons per month, beginning in February, but the whole to be shipped before August 1st of the same year. It was held that the contract required a shipment of 1,000 tons each month from February to June, and that a shipment of 400 tons in February and 885 tons in March justified a rescission of the contract. Norrington v. Wright, 115 U. S. 188, 6 Sup. Ct. 12, 29 L. Ed. 366. In other cases the term "about" has been held as equivalent to the phrase "not to exceed." Thus in People v. City of Riverside, 70 Cal. 461, 11 Pac. 759, where an act of the Legislature declared that a city of the sixth class must be one containing "not exceeding" 3,000 inhabitants, and the notice of an election to decide on incorporation stated that the number of inhabitants therein was "about 3.000," it was held that this was a suflicient notice to designate the city as one of the sixth class, since, if it contained “about 3,000" hibited by the statute. In Simpson v. N. Y., N. H. & H. R. R. Co., 16 Misc. Rep. 613, 38 N. Y. Supp. 341, the plaintiff in an action for damages for loss of goods alleged the value of the baggage lost to be "about" a certain sum, and it was held that the term used meant "nearly," "approximately," "almost," and that his recovery must be limited to the sum named. In estimating time it was held in The Alert (D. C.) 61 Fed. 504, that, where the charter of a steamer provided that the vessel should be delivered for the use of the charterer at a port in the West Indies "about" April 10th, the word "about" gave the owner only such additional time as might be made necessary by accidents of navigation arising on the voyage after a reasonable start, and such delay in starting as would prevent the ship from arriving at her destination before the 27th of April was a breach of the charter. In the case last cited the court lays stress upon the fact that the vessel was intended for the shipment of fruit, and that the season for such shipment was short and the cargo perishable, and therefore that time was of the essence of the contract. While the humble, but useful, potato, could hardly be classed as a fruit by even the most Hibernian of judges, yet we may go so far as to take notice that it is a vegetable, that like all things earthly, is subject to decay, and that so late in the year as the latter part of April it would not be good business policy for a farmer to hold a large quantity on hand upon uncertainty as to when a car would be furnished to take them away. The phrase "about five weeks" was confessedly put into the contract not to limit the time within which plaintiff should furnish defendant a car, but to limit the time within which defendant should complete a delivery of the goods. He had a right to begin delivery at any time and to call for a car in which to place his produce. On the 28th of March he did call for a car, and plaintiff failed to furnish it. About the 15th of April he saw plaintiff's agent and still received no car. We are of the opinion that, under the circumstances, he was not required to wait longer and allow his produce to deteriorate on his hands, as it naturally does and would have done at that season of the year. Plaintiff should have furnished him a car in such reasonable time that he could have completed his delivery approximately on April 24th. Had defendant waited until the 26th, when the car finally came, it is evident that under the conditions shown in plaintiff's testimony the delivery could not have been completed until some time early in May. The fact, if it is a fact, that the delay in furnishing a car was the fault of the railroad company, can make no difference so far as defendant's liability is concerned. If, by the neglect of the railroad company to provide adequate equip ment to carry on its business, the plaintif has been prevented from carrying out its co its remedy is against the railroad company, | 8. CRIMINAL LAW (§ 1172*)-REVIEW-HARMand not against the defendant. The judgment of the circuit court is af firmed. ROBINSON v. STATE. LESS ERROR-INSTRUCTIONS. plained possession by defendant of recently stolen property is evidence of larceny by him is harmless, where there is no dispute that the property was stolen, and there is sufficient evidence, independent of such recent possession, to sustain a conviction of defendant. The error of an instruction that the unex [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3154, 3155, 3161; Dec. Dig. (Supreme Court of Wyoming. Jan. 10, 1910.) Defendant is not entitled to a continuance for the absence of a witness, where the witness resides in another state, and no subpoena has been issued, nor any attempt made to obtain the evidence by deposition. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. 8 598.*] 2. CRIMINAL LAW (§ 598*)-CONTINUANCE FAILURE OF COUNSEL TO OBTAIN EVIDENCE, Defendant is not entitled to a continuance for the absence of a witness on the ground that her counsel, whom she discharged during the impaneling of the jury, had failed to procure a subpoena, or obtain a deposition, in the absence of a showing that defendant had fully stated to counsel what she expected to show by such witness, and that his failure to attempt to obtain the evidence was after knowledge of the facts. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. § 598.*] 3. CRIMINAL LAW (§ 1151*) - REVIEW - DISCRETION OF COURT DENYING CONTINU ANCE. In the absence of an abuse of discretion, a conviction will not be disturbed for the denial of a continuance for the absence of a witness. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 3046; Dec. Dig. § 1151.*] 4. CRIMINAL LAW ($ 590*)-CONTINUANCE— CHANGE OF COUNSEL. In the absence of a showing that she was misled or prejudiced by unprofessional conduct of her counsel, defendant, who changed counsel after the calling of the case, is not entitled as of right to a continuance to allow her new counsel to familiarize himself with the case and prepare for a defense. [Ed. Note. For other cases. see Criminal Law, Cent. Dig. §§ 1316, 1317; Dec. Dig. § 590.*] 5. LARCENY (§ 55*) – PROSECUTION SUFFICIENCY OF EVIDENCE, 9. LARCENY (§ 77*)-TRIAL-INSTRUCTIONS. TIONS REASONABLE DOUBT. An instruction on reasonable doubt that: "You are not at liberty to disbelieve as jurors if you believe as men; your oath imposes on you no obligation to doubt where no doubt would exist if no oath had been administered" --is erroneous, as it omits the essential element of the necessity for evidence on which to base a verdict, as a lack of evidence to prove guilt cannot be supplied by what the juror knows or believes, regardless of his oath. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1916, 1921; Dec. Dig. § 789.*] Error to District Court, Natrona County; M. C. Brown, for plaintiff in error. W. E. SCOTT, J. Elizabeth Robinson was charged, tried, and found guilty of the crime of Evidence held sufficient to sustain a con- grand larceny, and sentenced to serve a term viction of the larceny of a coat. [Ed. Note.-For other cases, see Larceny, Cent. Dig. §§ 149-178; Dec. Dig. § 55.*] 6. LARCENY (§ 51*)-EVIDENCE- POSSESSION OF STOLEN PROPERTY. Evidence of possession by defendant of property recently stolen is not admissible for the purpose of showing the fact that the property was stolen. [Ed. Note. For other cases. see Larceny, Cent. Dig. § 144; Dec. Dig. § 51.*] of years in the penitentiary, and brings the case here on error. The subject of the larceny is alleged to be a seal skin coat. 1. When the case was called for trial, defendant, through her attorney, C. O. Brown, announced herself ready for trial. The impaneling of the jury was proceeded with, and after the jury was partially called, M. C. Brown, Esq., attorney for plaintiff in error here, appeared in that court, and moved the An instruction that "the unexplained poscourt for a continuance, saying to the court session of recently stolen property is a circum- that he had just been retained in the case stance to be considered by the jury * in for the defense; that he was not familiar with arriving at your verdict, as tending to show the the facts in the case; that he desired a little larceny of the property, and that it was stolen by defendant," is erroneous. time within which to prepare the case for the defense; and that he would prepare a motion for continuance on the ground of an ab 7. LARCENY (8 77*)-TRIAL-INSTRUCTIONS. [Ed. Note.-For other cases, see Larceny, Cent. Dig. $$ 199, 202-204; Dec. Dig. § 77.*] sent witness. At the same time, in open been stolen. Gardner, the prosecuting witcourt, the defendant informed C. O. Brown ness, was one of the inmates of a house of that his services were no longer needed. As soon as prepared, the affidavit in support of the motion on the ground of an absent witness was submitted to the court. The court thereupon overruled the motion. From the affidavit it appears that the witness whose testimony was sought was then, and for some time prior thereto had been, living out of the state, but had verbally promised to return at the time of the trial, and that defendant had relied upon such promise, and that the witness had failed to report at that time. It is conceded that no subpoena had been issued, nor was any attempt made to obtain the evidence of this witness by deposition. Upon this statement standing alone the authority in support of the ruling is found in Keffer v. State, 12 Wyo. 49, 73 Pac. 556, where it is stated that a party cannot complain of such a ruling who shows a lack or want of diligence in preparing for his or her defense. It is further urged that by neglect and fault of her attorney it was necessary for her to change attorneys at the time she did. It nowhere appears in the record that defendant had fully and fairly stated what she expected to prove by, nor the name of, the alleged absent witness to C. O. Brown, the attorney whom she discharged, or that he knew of such absent witness, or that with such knowledge he neglected and failed to issue a subpœna or procure her deposition. At least without such a showing, after a party has consented to the case being set for trial, and upon the arrival of that time announced herself as ready, and the jury is being called, we doubt the wisdom of granting such a motion. If such a practice be encouraged, there would be no end to delays in this class of cases, where a continuance without merit is often a very great advantage to, and eagerly sought by, the defendant in a criminal case. The question was one for the court, and if it did not abuse its discretion, error could not be predicated upon the ruling, and it does not affirmatively appear that the court abused its discretion in this matter. Nor was it a denial of her constitutional right of benefit of counsel. The record shows that she was at all times represented by counsel of her own choosing; and, unless misled or prejudiced in her right by unprofessional conduct of her counsel, which fact should clearly appear, she is not entitled as of right, at such stage of the proceedings, to delay the court by allowing time to a new attorney to familiarize himself with the case and prepare for a defense. Upon the record the court did not abuse its discretion nor deny her any constitutional right in overruling her motion. 2. It is assigned as error that the evidence is insufficient to support the verdict. There is no direct evidence of asportation by the ill fame conducted by the defendant. The evidence tended to show that defendant was ill and confined to her room in the same house on the afternoon and evening of March 10, 1907, the time when the prosecuting witness testified that her coat must have been taken from her room. No one saw the defendant go into or come out of the Gardner room on that day. The only identifying or criminating evidence aside from defendant's occupancy, together with others, of the house, and who together with the frequenters had equal opportunity to steal the coat, is that of Sheffner, the sheriff, and his deputy as to defendant's conduct, what she said, and what occurred when he made a final search of the house. Indeed, up to this time the evidence does not point to her as the thief any more than it does to any other occupant or frequenter of the house. She knew, in common with the other inmates of the house, from the time when such claim was first made on March 11th preceding, that the prosecuting witness then, and had since, claimed that her coat had been stolen. The evidence tends to show that the sheriff had made a partial search of the house on March 12th, and a more thorough search on April 7th following. On the latter date he first searched the beerroom, and then the linen closet, and failed to find the coat. Shortly thereafter, upon a further search of the beerroom, he found the coat in a bundle inclosed in a sack or pillowcase under the ice box, and when he announced to the defendant that he had found, and where he had found, the coat, she immediately exclaimed: "Why, some of the girls must have placed it there." The beerroom and linen closet had a common partition, but no door connecting them. Both opened into a sitting room, so that in going from the beerroom to the linen closet one would have to pass out into the sitting room, and thence into the linen closet, and vice versa. The sheriff's deputy, who testified as a witness, sat in the sitting room so he could see any one going in or coming out of either of these rooms from the time he and the sheriff went into the house for the purpose of serving the warrant until the coat was found. We think this evidence, in connection with other evidence referred to in paragraph 3 of this opinion, was sufficient to support the verdict. 3. The following instructions were given to the jury over the objection of the defendant, viz. : "(10%) The court instructs the jury that, if they find from the evidence that the defendant was in the possession of the property in question, and that the same was stolen, the unexplained possession of recently stolen property is a circumstance to be considered by the jury, and such circumstances may be considered by you, in arriving at of the property, and that it was stolen by the of goods shown to have been recently stoldefendant. "(11) The jury are instructed that if you find from all of the evidence in this case that the coat alleged to have been stolen was found secreted under the ice box in the beerroom of the house called Cap and Ball, and that said coat was so secreted in said beerroom between the time that witness Sheffner made the first search of said beerroom and the time it was so found therein, and if you find that during said interval between said search by witness Sheffner and when it was found by him no person or persons had access to or were in said beerroom except the defendant, Lizzie Robinson, and the witness Sheffner, then said facts and circumstances may be considered by you, in arriving at your verdict, as tending to show the larceny of the property, and that it was stolen by the defendant, and that it was in her possession when found." There is no evidence in the record that the defendant ever claimed or asserted ownership of the coat, or was seen in its actual possession. The evidence of the defendant and three other witnesses is practically uncontradicted that the defendant was sick and unable to leave her room on the day that the coat is alleged to have been stolen. The prosecuting witness testifies that it was taken from her room during the afternoon of that day. It was not found by the sheriff for nearly a month thereafter. It was the theory of the prosecution that defendant secreted the coat under the ice box in the beerroom between the first and third search of that room made by the sheriff on April 7th | following the alleged larceny. He testified that he made three searches of the beerroom, each, except the second, being thorough, and he did not discover or find the coat until the third search. The evidence shows that other inmates of the house had access at all times to the beerroom, except during the time the search was going on, and, while the entire house was in the possession of the defendant, the least that can be said is that access to this room was permissive to the other occupants for certain purposes, and exercised by all the inmates of the house. These instructions, however, purport to be based upon and to be authorized by the proof that when the search warrant was served, no person or persons had access to or were in the beerroom during the time when the searches were being made, except the defendant and the sheriff, that she went into the beerroom during the interval between the second and third search, and that the sheriff followed her a minute and a half after she entered, and, upon making a search at this time, found the coat under the ice box. Conceding that the evidence shows that fact, it does not of itself prove the larceny-at most it would prove possession of the coat. Upon en is not admissible for the purpose of proving the corpus delicti, or the fact that the goods have been stolen. Such possession is not shown to prove the theft, but to identify the thief. Section 740, 2 Bish. New Cr. Proc. Instruction 10% was erroneous, for by the latter part of it the jury were told that they might consider such possession as tending to show the larceny of the property; and this also applies to the eleventh instruction. Inasmuch, however, as there is no dispute in the evidence that the coat had been stolen, and the evidence being sufficient upon that question independent of the question of recent possession, we think it at least doubtful whether upon the record here presented the giving of the instruction was prejudicial in that respect. Instruction No. 11 goes a step beyond instruction 10%, for while the latter is intended to state the effect of the unexplained possession of recently stolen property, the object of the former is to state the effect, as proof that the defendant had possession of the stolen property, of certain facts which might be deducible from the evidence in the case; but, without stating that the facts mentioned, if found by the jury, would tend to prove that the defendant had possession, the instruction states that the facts could be considered as tending to prove the defendant's guilt of larceny without repeating the usual qualification that "unexplained" possession may be considered as tending to show guilt. Further than that, the instruction totally ignores the explanation given by the defendant in her testimony of her conduct at the time of the search, and her denial that she placed the coat where it was found, or that she had possession of it. By analogy to the requirement in the case of an instruction as to the effect of possession of recently stolen property it would seem that an instruction such as No. 11 should be qualified by some reference to the defendant's explanation. It would seem clear that, conceding that the facts mentioned in the instruction, if found by the jury, would, standing alone, tend to prove the defendant's possession, and, if the latter was unexplained, tend to prove her guilt. such tendency would be overcome by a satisfactory explanation on the part of the defendant inconsistent with her possession or guilt. If the jury should believe the testimony of the defendant that she did not place the coat where it was found, then it would not be true that the facts mentioned in the instruction would tend to prove that she had been in possession of the coat, for the facts leading to such a conclusion would then be entirely overcome by the defendant's satisfactory explanation of her conduct and her relation to the property alleged to have been stolen. We think, therefore, that the instruction was erroneous, and was planation of the defendant with reference to her connection with the coat and the secreting thereof, and also because its effect is to make the mere fact of her possession, even though explained, a matter to be considered as tending to show her guilt. where no doubt would exist if no oath had been administered." In the Spies Case the language was: "You are not at liberty to disbelieve as jurors, if from the evidence you believe as men. Your oath imposes on you no obligation to doubt where no doubt would exist if no oath had been administered." Whatever force there may be in the adoption and approval of the instruction as given in the Spies Case by eminent courts, it is not persuasive as upholding the instruction given in the case before us. Here one of the essential elements of that instruction is lacking, viz., that the belief in the guilt of the accused sufficient to convict must be based upon the evidence in the case. A lack of evidence to prove such guilt cannot be supplied by what a juror knows or believes regardless of his oath. Under our procedure he is required to base his verdict solely upon the evidence and the law as given him by the court. It is not out of place to here observe that in Illinois the instructions to the jury are advisory only, and the jury remain the judges of the law and the facts. 11 Ency. Pl. & Pr., at pages 67 and 68. 5. During the trial the jury was conducted to the house where the larceny is alleged to have been committed, and permitted to view the beerroom wherein the sheriff found the coat. They were put in the charge of sworn bailiffs for that purpose, and the manner of the view was indicated by the court to the jury and the officers in charge of them. The view was ordered at the request of the defendant, and it does not appear that the instructions of the court in that respect were objected to by the defendant, or that such instructions were departed from in any substantial manner. Instruction 102 is perhaps also objectionable because the rule as to unexplained possession of recently stolen property was given to the jury to be applied in case they should find the defendant to have been in possession, and thus, possibly, intimating that there had been no sufficient explanation of possession. 4. The court, over the objection of the defendant, gave the following instruction, viz.: "Instruction No. 6. The court instructs the jury, as a matter of law, that the doubt which the juror is allowed to retain in his own mind, and under the influence of which he should frame a verdict of not guilty, must always be a reasonable one. A doubt produced by undue sensibility in the mind of the juror, in view of the consequence of his verdict, is not a reasonable doubt; and a juror is not allowed to create sources or materials of doubt by resorting to trivial or fanciful suppositions and remote conjectures as to a possible state of facts differing from that established by the evidence. You are not at liberty to disbelieve as jurors if you believe as men; your oath imposes upon you no obligation to doubt where no doubt would exist if no oath had been administered." No objection was made to the giving of instruction No. 5, which purports to define a reasonable doubt; but it is contended that because of another instruction which the court gave to the jury, to the effect that the instructions should not be considered separately and alone, but together and in the light of each other, that instructions 5 and 6 when so considered, modified each other, and gave to the jury a wrong definition of what constitutes reasonable doubt. Instruction No. 6 as above set out is evidently an attempt to follow the language of the instruction given and approved in Spies v. People, 122 Ill. 1, 12 N. E. 865, 17 N. E. 898, 3 Am. St. Rep. 324. An instruction in almost the exact language used in that case has been approved in Barney v. State, 49 Neb. 515, 68 N. W. 636; Bartley v. State, 53 Neb. 310. 73 N. W. 744, 759; Willis v. State, 43 Neb. 102, 61 N. W. 254; Davis v. State, 51 Neb. 301. 70 N. W. 984; Nevling v. Com., 98 Pa. SCHAAKE v. ATCHISON, T. & S. F. RY. 322. It has also been condemned upon the ground that it in effect relieves the jury from the obligation of their oaths. People v. Johnson, 140 N. Y. 350, 35 N. E. 604; Siberry v. State, 133 Ind. 677, 33 N. E. 681; Cross v. State, 132 Ind. 65, 31 N. E. 473. It will, however, be observed that in the instruction in the case before us the court said to the jury: "You are not at liberty to disbelieve as jurors if you believe as men; your oath imposes upon you no obligation to doubt 6. Other errors are assigned; but, in view of the fact that the judgment must be reversed and a new trial granted for error in giving the instructions Nos. 6 and 11, already referred to, we deem it unnecessary to discuss them. The judgment will be reversed, and the cause remanded for a new trial. Reversed. POTTER, C. J., and BEARD, J., concur. CO. (Supreme Court of Kansas. Jan. 8, 1910.) RAILROADS (§ 443*)-INJURIES TO ANIMALSSUFFICIENCY OF EVIDENCE. In an action for injuries to stock at a crossing, evidence held sufficient to sustain a finding that the engineer was negligent in not using due care to avoid the injury, in that he crossing and would probably attempt to cross. saw that the stock were running towards the [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1608-1620; Dec. Dig. § 443.*] |