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The opinion of the court was delivered by Hatcher, C.: This is an appeal from a conviction of assault endangering the life of another as prohibited by K. S. A. 21-435. The following facts may be gleaned from the state’s evidence. On the 22nd day of June, 1968, shortly after 12:00 noon, the defendant and JoAnn Bracken, the sister of Corabelle Furst, arrived at the farm home of the Fursts. The Fursts had been boarding JoAnn Bracken’s daughter, Carol, since April, 1968. After a brief conversation, Mr. Furst agreed to repair the defendant’s car in exchange for a chrome .22 caliber pistol. The pistol was delivered to Mr. Furst who placed it in a bedroom dresser drawer. Shortly thereafter, Mr. Furst drove his wife, two of their children, Rickey and Betty, JoAnn Bracken and the defendant to Ottawa to purchase the parts necessary to repair defendants car. Mrs. Furst and the defendant entered Harry Smith’s Auto Supply where Mrs. Furst ordered a wheel cylinder kit for her car which was paid for by the defendant. Mrs. Furst then left for Naomi’s Tavern with her husband and JoAnn Bracken. They were joined shortly thereafter by defendant who had a bottle of liquor under his j'acket, although he was not seen drinking. They all returned that afternoon to the Furst home. Carol Bracken, Linda Furst and Nancy Furst, the complaining witness’ oldest daughters, were awaiting them. After a short time an argument ensued when defendant became rather insistent that Carol Bracken, JoAnn’s daughter, should leave with them rather than stay with the Fursts. Mrs. Furst objected. Defendant then demanded the return of his pistol. Mr. Furst refused, explaining that defendant had been drinking and the gun would just get him into trouble. After several more demands for the gun, Mrs. Furst told her son Rickey to get the gun and give it to defendant, which he did. Rickey observed that the gun was not loaded. Mr. Furst then requested that defendant pay for Carol Bracken’s board. Defendant angrily threw two twenty dollar bills on the table and went out to the porch with JoAnn Bracken. Shortly thereafter the defendant returned and with no warning he struck Mr. Furst twice on the head with the pistol. Mr. Furst ran out of the room in a dazed condition. Mrs. Furst grabbed at the defendant who struck at her. As she attempted to grab him again, defendant fired the pistol, greatly surprising Mrs. Furst who was unaware that the gun had been loaded. The defendant again fired the gun, this time the shot grazing Mrs. Furst’s cheek and she sanie to the floor. Defendant, who had been about six feet from Mrs. Furst while firing the shots, then left hastily out the back door. One of the shots was located in the door casing vertical to where Mrs. Furst was standing. The shells were loaded with varmint shot. There were powder burns around the hole in the casing and about Mrs. Furst’s face. The defendant drove away in his car and soon thereafter disposed of the pistol in a Topeka, Kansas pawn shop using an assumed name. The defendant was convicted of assault endangering the life of another. He has appealed. The appellant first contends that the trial court erred in failing to continue the trial of the case on its own motion until a witness could be produced. It appears that while Mrs. Furst and her husband were seeking medical aid, and the children were trying to reach the sheriff through a neighbor’s telephone, JoAnn Bracken walked away. She has never been seen nor heard from since that time. Both the state and the defendant caused JoAnn to be subpoenaed as a witness but she was not found. Neither party requested a continuance. The appellant suggests that he was in no position to ask for a continuance because he was in jail, unable to make bond, and had moved for a speedy trial. Appellant adds—“faced with this dilemma, the defendant was denied effective compulsory process for witnesses in his behalf, and the trial should have been continued until the witness was available.” We find no merit in this contention. A party must make a request if he desires a continuance because of an absent witness. The matter is then addressed to the discretion of the trial court. In Jackson v. State, 204 Kan. 823, 465 P. 2d 927, we stated: “K. S. A. 60-240 (c) provides that the granting of continuances by the court based on the absence of a material witness shall in all cases be discretionary. A proceeding conducted pursuant to 60-1507 is a civil proceeding and the foregoing section applies. K. S. A. 62-1414 provides that continuances may be granted in criminal cases for like causes and like circumstances as in civil cases. Thus, the discretionary portion of 60-240 (c), supra, applies to both criminal and civil trials. (See State v. Zimmer, 198 Kan. 479, 486, 426 P. 2d 267, cert. denied 389 U. S. 933, 19 L. Ed. 2d 286, 88 S. Ct. 298; and State v. Hickock & Smith, 188 Kan. 473, 482, 363 P. 2d 541, cert. denied 373 U. S. 544, 10 L. Ed. 2d 688, 83 S. Ct. 1545.) “K. S. A. 60-240 (c) also states the court need not entertain any motion for a continuance based upon the absence of a material witness, unless supported by an affidavit which shall state: “. . . the name of the witness, and, if known, his residence, a statement of his expected testimony and the basis of such expectation, a statement that the affiant believes it to be true, and the efforts which have been made to procure his attendance or deposition. . . .” (p.-.) The appellant made no attempt to comply with the above statute. In fact, he did not even suggest that he desired a continuance. The appellant next objects to the failure of the trial court to direct a mistrial because of testimony elicited from the state’s witness, Carol Jean Bracken. Carol, the sixteen year old daughter of JoAnn Bracken, testified that the five years she lived with her mother and the appellant prior to going to live with her aunt and uncle they did not reside anyplace, they just traveled around. When the witness was asked as to the defendant’s occupation, his counsel objected and the trial court instructed the jury: “Members of the jury, you’ll disregard any previous testimony of this witness; it’s withdrawn and stricken from your consideration. I think, under the rule, you’re getting close to error.” The questions were largely preliminary. It may have reflected on the appellant’s reputation to be found without an occupation but the question was never answered. Even though the questions were improper the prompt striking of all of the previous testimony of the witness accompanied by the trial court’s admonition to the jury cured any error where it does not affirmatively appear that the temporary reception of the evidence or questions resulted in prejudice to the substantial rights of appellant. (State v. Childs, 198 Kan. 4, 422 P. 2d 898; State v. Smith, 187 Kan. 42, 353 P. 2d 510; State v. Beam, 175 Kan. 814, 267 P. 2d 509; City of Wichita v. Hibbs, 158 Kan. 185, 146 P. 2d 397.) The appellant challenges the sufficiency of the evidence to show “malice aforethought,” “intent to kill” and “endangering the life of another.” The appellant would take the evidence most favorable to him and weigh it in his favor. This an appellate court cannot do. In State v. Trotter, 203 Kan. 31, 36, 453 P. 2d 93, we stated: “. . . The rule in a criminal case is that on a review of the sufficiency of evidence this court will examine the record to determine if from all of the facts and circumstances disclosed by the evidence the jury could have reasonably drawn an inference of guilt. (State v. Townsend, 201 Kan. 122, 439 P. 2d 70; State v. Patterson, 200 Kan. 176, 434 P. 2d 808; State v. Helm, 200 Kan. 147, 434 P. 2d 796.) On the burglary and larceny offenses, the defendant would have us reweigh the testimony of several of the state’s witnesses. This we will not do, for we have consistently adhered to the proposition that it is the function of the jury, not that of the appellate court on review, to weigh the evidence and pass upon the credibility of the witnesses. (State v. Scott, 199 Kan. 203, 428 P. 2d 458.)” The same answer may be made to appellant’s contention that there was no evidence to support an instruction on maiming, wounding, disfiguring or causing great bodily harm as prohibited by K. S. A. 21-435. The appellant last complains of the failure of the trial court to grant a new trial because of newly discovered evidence. The appellant states: “After the trial of the action, there was discovered by defendant’s counsel an additional witness, one Charles Allen, of Topeka, Kansas. His name was not previously known to defendant or his counsel, nor could they have learned of his testimony, by exercise of due diligence. He would have testified that, sometime after the altercation itself, complaining witness Mrs. Furst related to him an entirely different version of the incident than that told by her in the trial of the case. . . .” The testimony could only be used for impeachment purposes as the alleged new witness was not present at the incident in question. The testimony could do nothing more than discredit the testimony of Mrs. Furst. New trials are not granted on such newly discovered evidence. In Pankey v. Wyandotte Cab, Inc., 174 Kan. 17, 254 P. 2d 305, we stated: “No error was committed in failing to grant a new trial on this issue. The affidavits were made up largely of statements that, while the witness was an employee as testified to, he had no authority to perform certain duties to which he had testified. Some of the matter in the affidavits was impeaching, but the general rule is that new trials are not granted on account of new evidence which only goes to the general reputation of the witness for truth and veracity, or which merely discredits a witness. (Schribar v. Maxwell, 92 Kan. 306, 140 Pac. 865.) . . .” (p. 21.) A careful examination of the record discloses no trial errors which would justify the granting of a new trial. The judgment is affirmed. APPROVED BY THE COURT.

The opinion of the court was delivered by Fontron, J.: In this appeal we are concerned with the interpretation of fhe last will and testament of John F. Maguire. The foremost and primary question is stated by the parties to be whether fhe seventh paragraph violates the rule against perpetuities and is an unreasonable restraint on alienation. Mr. Maguire died December 26, 1932, being survived by his wife, Kathryn, who died July 8, 1966, and the following children: a daughter, Nellie Maguire Green, formerly Nellie Maguire Idol, who died January 9, 1945; a son, John F. Maguire, Jr., who died November 18, 1966; and a daughter, Lillian Maguire McNutt, who is still living. In his will the testator devised a life estate in all his real property to his wife, Kathryn, and devised fhe remainder interests therein to his children in separate parcels. Paragraph seven of the will, whose construction triggered this litigation, reads as follows: “Subject to the life estate of my said wife, Kathryn Maquire, and also subject to the life estate of my son, John F. Maguire, Jr., therein, I will, devise, and bequeath the south one half of the north west quarter of section seventeen (17), in township two (2), range eighteen (18), Brown county, Kansas, to the issue of the body of John F. Maguire, Jr., surviving him with the understanding that Nellie Maguire Idol, and Lillian Maguire McNutt, may, if they so desire, elect to take said above-described real estate, and pay to the issue of the body of John F. Maguire, Jr., deceased, the sum of ten thousand dollars, with interest thereon at the rate of four percent per annum, from the date of the death of said John F. Maguire, Jr., equally between them, share and share alike.” The will was admitted to probate in January, 1933, and the estate remained open for more than a year after Kathryn s death in July, 1966. A petition for final settlement of the estate was heard in probate court on July 28, 1967. Prior to that date, however, written defenses to the petition were filed by Darlene Maguire Scarbrough, the sole issue of John F. Maguire, Jr., who had died the preceding November. Mrs. Scarbrough (who is sometimes referred to herein as Darlene) alleged she was entitled to the land described in paragraph seven, and that the provisions giving Nellie Maguire Idol (now Green) and Lillian Maguire McNutt the right to take the same upon payment of ten thousand dollars was void and unenforceable. Darlenes contention was rejected by the probate court, which proceeded to assign the testator’s real estate in accordance with the several provisions of the will. The probate court’s decision was appealed to district court, which also held that the provisions of paragraph seven did not violate the rule against perpetuities; that Nellie’s rights under the option descended to her heirs; and that notice to exercise the option was given Darlene within a reasonable time. Mrs. Scarbrough has appealed to this court from that decision. No extended dissertation on the rule against perpetuities will be attempted at this time. The rule has been recognized in this state from early statehood and considerable litigation has followed in its wake. For present purposes it will be sufficient to observe that the purpose of the rule is to prevent the creation of future interests in property which will not vest within twenty-one years after some life or lives in being, plus the usual period of gestation. (In re Estate of Freeman, 195 Kan. 190, 404 p. 2d 222.) As to application of the rule against perpetuities in the area of options, we find the test set forth in Restatement, Property, Volume IV, p. 2315: “Subject to exceptions [none of which appear applicable here] . . . the limitation of an option in favor of a person other than the conveyor is valid because of the rule against perpetuities when, under the language and circumstances of the limitation, such option “(a) may continue for a period longer than the maximum period described in § 374; and “(b) would create an interest in land, or in some unique thing other than land, but for the rule against perpetuities.” In the “Comment” which follows the foregoing statement of the rule, certain requirements are shown. Subparagraph b. thereof, “Requirement of Clause (a)” reads in part as follows: “Under the rule stated in this Section, the option must be one which ‘may continue for a period longer than die maximum period described in § 374.’ This requirement is not satisfied when the option is found, from the language and circumstances of its creation, to have been intended to be exercisable only by an already conceived optionee himself, and not by any successor in interest to such optionee. In any such case the duration of the option is measured by a life in being, namely, the life of the optionee and the rule stated in this Section is inapplicable. . . .” (p. 2316.) The rule appears to be quite general in this country that a testamentary option, that is, option granted or created by will, confers a right which is personal to the optionee himself, and which will not survive his death. Formal expression is given to this principle in an annotation appearing in 28 A. L. R. 2d: Wills-Option-Who May Exercise, where on pages 1167, 1168, the author says: ". . . [A] majority of the courts have held that a right or option given by will to purchase estate property was personal to the optionee, and did not survive his death so as to become exercisable by his successors in interest.” This prevailing rule concerning the exercise of options created by will is stated in 96 C. J. S., Wills, § 1104, p. 834, in these words: “. . . The option is personal to the optionee; it cannot be exercised by a stranger or assignee or by the heirs or personal representative of the optionee, . . .” Being personal to the optionee who is designated in the will, a testamentary option must be exercised, if at all, by the named optionee within his own lifetime—a lifetime in existence. Thus, the requirement of the rule respecting options which we have heretofore quoted from Restatement, supra, is not fulfilled, and the rule against perpetuities is not offended. This corollary is reflected in the text of the annotation in 44 A. L. R. 2d; Option Created By Will, p. 1228, where it is said: “In the majority of the cases in which the question has arisen it has been held or recognized that the option in question which was created by will for the purchase of real estate was not void as contrary to the rule against perpetuities.” For cases supporting this position see, among others, Ludwick’s Estate, 269 Pa. 365, 112 A. 543; Weitzmann v. Weitzmann, 87 Ind. App. 236, 161 N. E. 385; Brown v. Brown, 53 N. M. 379, 208 P. 2d 1081; Austin Presbyterian Theological Sem. v. Moorman, 391 S. W. 2d 717 (Tex.), cert. den., 382 U. S. 957, 15 L. Ed. 2d 361, 86 S. Ct. 434. We have been unsuccessful in our search to discover cases from this jurisdiction directly in point, and none have been called to our attention by counsel on either side. However, in Campbell v. Warnberg, 133 Kan. 246, 299 Pac. 583, we believe there is tacit recognition of the principle that option granted by will to purchase real estate does not violate the rule against perpetuities. The testamentary scheme in the Campbell case was somewhat complicated, but essentially the will provided that certain of the testator’s children, i. e., the sons, should have the right to purchase the interest of their sisters at a price fixed by the will. Some fifteen months after the father’s death, and after oil had been discovered on parts of the land, greatly increasing the value of the whole, the optionees, for the first time, and in an outstanding display of brotherly solicitude, sought to exercise the option. This court held, in that case, that since the option contained no limit of time for its exercise, the law required that it be exercised within a reasonable time; and that the optionees’ failure to exercise the option for a period of fifteen months after their father’s death, during which time oil development had taken place and land values had skyrocketed, constituted an unreasonable delay and defeated their option entirely. In summary, we believe the commanding weight of authority to be: (1) That an option to purchase real estate created in a will is personal to the optionee, or optionees, and must be exercised by him or them in person; (2) that where no time limit is specified for the exercise of a testamentary option, it must be exercised within a reasonable time; (3) being personal in character, and exercisable only within the lifetime of the optionee or optionees, as the case may be, an option created by will does not contravene the rule against perpetuities. Accordingly, we are constrained to hold that the option provided for in paragraph seven of John F. Maguire’s will does not violate the rule against perpetuities. Furthermore, we do not view the provisions of paragraph seven as being an unreasonable restraint on alienation. As we have said, the option granted in that paragraph is personal and exercisable, if at all, only during the lifetime of the named optionees. So construed, the option may be executed only during lives in being, which we cannot regard, in itself, as an unreasonable period of restriction upon alienation. Moreover, it has been held that an option does not suspend the power of alienation where the parties are in being and ascertainable, and can together convey the entire title. (70 C. J. S., Perpetuities, § 56, p. 657; Lantis v. Cook, 342 Mich. 347, 69 N. W. 2d 849.) We have not overlooked the case of Henderson v. Bell, 103 Kan. 422, 173 Pac. 1124, wherein it was held that a contract granting an option to purchase certain real estate at a specified price, but unlimited as to time of exercise, was void as violating the rule against perpetuities. We would point out however, that the option in that case was created by a contract, commercial in nature, and not by the terms of a will, in the interpretation of which the intention of the testator is always of paramount concern. In such respect, at least, the facts in Henderson differ from these here, and we do not consider that decision as of controlling significance in this case. Included in the memorandum opinion, which the trial court filed at the time of entering its judgment, is a statement that the parties had agreed that the option right of Nellie Maguire Idol Green, who died in 1945, decended to her heirs. This has caused some head scratching on our part, for ordinarily, as we have said more than once, courts are bound by stipulations of the litigants. Our conclusion that a testamentary option does not survive the optionee’s death would seem to conflict with the foregoing rule, for it is directly contrary to the agreement reached by the parties herein. However, we believe the rule, valid though it may be where questions of fact are concerned, cannot be invoked to bind or circumscribe a court in its determination of questions of law. This principle is set out in 50 Am. Jur., Stipulations, § 5, p. 607: “It has frequently been stated as a general rule that the decision of questions of law must rest upon the court, uninfluenced by stipulations of the parties, and it is generally held, accordingly, that stipulations as to what the law is are invalid and ineffective. . . .” See, also, Beams v. Werth, 200 Kan. 532, 549, 438 P. 2d 957, where an analogous axiom was defined by this court. In this case, we are asked to determine whether the option contained in paragraph seven of the Maguire will is invalid as violating the rule against perpetuities. In our view the answer largely depends on whether a testimentary option is personal or whether it survives the death of an optionee. The legal consequences attending the option are matters which this court must be free to determine, unfettered by limitation, in dealing with the ultimate issue of validity. Although we have decided that the option created in paragraph seven of Mr. Maguire’s will does not infringe upon the rule against perpetuities, this does not finally dispose of this lawsuit. As we have said, Nellie Maguire Idol (or Green) predeceased both her mother and her brother, the two life tenants. Having departed this life before the option could first have been exercised, she of course has never been in a position to exercise it. Neither may her heirs exercise the option, although they have attempted to do so, simply because the option did not survive her death. Thus the final question for our decision narrows down to this: Can Lillian Maguire McNutt, alone, exercise the option granted her and her sister Nellie—the latter now being deceased? The question is not free from doubt and we have found very scant authority, indeed, which seems to be in point. In 17 Am. Jur. 2d, Contracts, § 61, p. 397, this statement appears in the text: “It is said that the consent of all persons having an interest in an option is necessary to its exercise by any one of them. . . .” Cited in support of that rule is Pratt v. Prouty, 104 Iowa 419, 73 N. W. 1035. Although the option in that case was not testamentary in character, and all three optionees named therein were still alive when one of their number attempted to exercise the option, the case appears analogous in principle to the one now before us. Perhaps equally analogous are cases with respect to the exercise of powers over property, such as powers of appointment, powers of sale, and the like. The usual rule appears to be that when a power has been given to joint donees, all donees must join in its execution. (41 Am. Jur., Powers, § 29, p. 825.) Even though there is no wealth of authority to guide us in this area, we believe the preferred rule to be that an option granted to two or more optionees must be exercised by them all, absent circumstances clearly indicating a contrary design on the part of the optionor. The record before us is entirely void of evidence from which we might infer such an intent on the part of Mr. Maguire. Accordingly, the option in this case is no longer operative. Nellie Maguire Green’s rights under the option did not survive her death and cannot be exercised by her survivors. Furthermore, the option being joint, it may not now be executed by the surviving optionee, Lillian Maguire McNutt. This leaves Darlene with title to the land no longer subject to the option set forth in her grandfather’s will. The judgment of the trial court is reversed with directions to enter judgment in favor of Darlene Maguire Scarbrough in accordance with views set forth in this opinion.

The opinion of the court was delivered by Fatzer, J.: This was an action for personal injuries and property damage sustained by the plaintiff, Orby A. Curby, when his automobile was struck by a trailer owned by the defendant, Ulysses Irrigation Pipe Company, Inc. The trailer was being pulled by the defendant’s pickup truck which was driven by its employee, Alvin M. Calvin. The parties will be referred to as they appeared in the district court. The issues were tried to a jury which returned a special verdict in favor of the defendant. (K. S. A. 60-249 [a].) The plaintiff has appealed and assigns as error the overruling of his motions for judgment notwithstanding the verdict and for a new trial. The crux of the appeal is whether, under the evidence, the district court erred in giving, over the plaintiff’s objection, an instruction on “unforeseeable accident.” The determination of the question requires a brief resumé of the issues set forth in the pretrial order and the evidence. The pretrial order superseded all pleadings and controlled the subsequent course of the action. As stated therein, the issues are summarized: On June 25, 1966, the plaintiff was driving his 1965 Ford automobile and pulling a 1966 Shasta Trailerette in the eastbound traffic lane on U. S. 50 Highway approximately four miles east of Lakin, Kansas. He was traveling between 45 and 50 miles per hour. The highway was blacktop surfaced, 30 feet six inches wide, and in good condition. The plaintiff met a 1966 Ford pickup truck owned by the defendant and operated by its employee, Calvin. The pickup was traveling approximately 50 miles per hour in the westbound traffic lane and was pulling a four-wheel trailer loaded with irrigation pipe. As the two vehicles met, the trailer suddenly made a sharp swerve and crossed over the center line of the highway and into the eastbound traffic lane where the plaintiff was proceeding. The plaintiff did his best to avoid a collision but was unable to do so. The left front of the trailer collided with the left front and side of the plaintiff’s automobile at an angle. The point of impact was two feet south of the center line in the eastbound traffic lane. The pickup truck did not collide with the plaintiff’s automobile. As a result, the plaintiff sustained property damage and personal injuries in the amounts alleged. The plaintiff contended the collision was proximately caused by the negligence of the defendant in the following particulars: (1) In allowing the trailer to cross over into the plaintiff’s side of the highway; (2) in having a defective hitch and tongue upon the trailer; (3) in operating the pickup truck when it had a low left rear tire which was known by the defendant’s employee or should have been known by him, and (4) in failing to inspect the tires on the pickup and discover the damaged tire. The defendant admitted the collision occurred at the time and place alleged, and that Calvin was its employee who was driving the pickup in the course of his employment. It further admitted the trailer crossed over the center line into the plaintiff’s side of the highway, but alleged it did so because of a sudden and unavoidable accident in that the left rear tire on the pickup suddenly went flat as a result of picking up a four-inch spike, causing an unavoidable swerve of the trailer. It specifically denied that it or its employee were negligent in any respect, and alleged the collision was the result of an unavoidable accident; further, that any damages sustained by the plaintiff were incurred because of his contributory negligence and want of care, since he had opportunity to observe the trailer swerving and failed to stop or steer his vehicle to avoid the collision. Both parties offered evidence, and at the conclusion of the trial the plaintiff and the defendant each moved for a directed verdict which was overruled. The plaintiff made objection to Instruction No. 11 on unavoidable accident, and to Special Question No. 1 as to the defendant’s negligence, which were overruled. The district court submitted a special verdict in the form of special written findings upon issues of fact to which the parties had stipulated and agreed in the pretrial order with respect to the defendant’s negligence and the plaintiff’s contributory negligence. In answer to Question No. 1, the jury found the defendant’s driver was not guilty of any act or acts of negligence in the particulars claimed by the plaintiff which was or were the proximate cause of the collision. The plaintiff’s motions for judgment notwithstanding the verdict and for a new trial were overruled by the district court. The plaintiff contends the district court erred in permitting the defense of unavoidable accident to be brought into the case, and in giving Instruction No. 11 over his objection. The instruction reads: “No. 11 “The burden of proof is upon the plaintiff to prove to your satisfaction the following: “1. That the defendant or the defendant’s driver was negligent in one or more of the particulars contended by the plaintiff, as set out in Instruction No. 2. “2. That said negligence was the proximate cause of the collision. “3. The damages sustained. “The defendant admits that the trailer was on the wrong side of the road but contends that it got there without negligence upon the part of the defendant or the defendant’s driver because of a sudden unforeseeable accident in that the left rear tire of the pickup suddenly went flat as a result of picking up a four inch spike. The burden of proof is upon the defendant to prove that such sudden unforeseeable accident occurred. “If you find that such sudden unforeseeable accident occurred, without negligence upon the part of defendant or its driver, and that after it occurred the defendant’s driver was unable in the exercise of ordinary care to avoid the collision, then you should answer Special Question No. 1 ‘No’. “That a sudden unforeseeable accident occurred is ihe only issue upon which the defendant has the burden of proof. Upon all other issues the burden of proof remains upon the plaintiff. “An unforeseeable accident is an occurrence which could not reasonably have been foreseen or anticipated by an ordinarily intelligent careful prudent person under like circumstances.” In Kreh v. Trinkle, 185 Kan. 329, 343 P. 2d 213, this court broadly disapproved “pure accident,” “unavoidable or inevitable accident,” or equivalent accident instructions in negligent cases involving motor vehicles. The rationale of the court’s disapproval was based upon the fact that in a negligence action the plaintiff must prove the injury complained of was proximately caused by the defendant’s negligence, and the defendant under a general denial may show any circumstance which mitigates against his negligence or its causal effect. The court declared that since such an instruction merely restates a feature of the law of negligence which in substance is necessarily covered by proper instructions on negligence, burden of proof, and proximate cause, it is not needed, serves no useful purpose, operates to overemphasize the defendant’s case, and tends to mislead and confuse the jury. Running through our decisions is the rule that the foundation for an unavoidable accident or equivalent accident instruction exists only when the court can say there is no evidence of a negligent act or omission of one or both of the parties to the action. In other words, if there is any evidence of negligence of either party, such an instruction has no application to the case. (Knox v. Barnard, 181 Kan. 943, 317 P. 2d 452; Schmid v. Eslick, 181 Kan. 997, 317 P. 2d 459; Ripley v. Harper, 181 Kan. 32, 309 P. 2d 412; Carlburg v. Wesley Hospital & Nurse Training School, 182 Kan. 634, 323 P. 2d 638; Employers' Mutual Casualty Co. v. Martin, 189 Kan. 498, 370 P. 2d 110; Kreh v. Trinkle, supra; Cagle Limestone Co. v. Kansas Power & Light Co., 190 Kan. 544, 376 P. 2d 809; Paph v. Tri-State Hotel Co., 188 Kan. 76, 360 P. 2d 1055; PIK 8. 82.) In Employers’ Mutual Casualty Co. v. Martin, supra, it was said: “. . . Furthermore, when an accident is caused by negligence there is no room for application of the doctrine of unavoidable accident even though, because of the circumstances, the accident may have been ‘inevitable’ or unavoidable” at the time of its occurrence, and one is not entitled to the protection of the doctrine if his negligence has created, brought about or failed to remedy a dangerous condition resulting in a situation where the accident is thus inevitable or unavoidable at the time of its occurrence.” (l. c. 500.) (Emphasis supplied.) See, also, Gardner v. Welk, 193 Kan. 445, 447, 393 P. 2d 1019, and Herrington v. Pechin, 198 Kan. 431, 434, 424 P. 2d 624. The plaintiff’s request that we determine the propriety of Instruction No. 11 is in violation of our rule relating to appellate review. It is incumbent upon the party appealing to bring up a complete record of all matters upon which appellate review is sought. Unless an instruction to which an objection is made is a clear and prejudicial misstatement of the law, it can be reviewed only when other instructions which may or may not modify its intent and effect are made a part of the record, in order that all instructions given may be examined together. (Beye v. Andres, 179 Kan. 502, 296 P. 2d 1049; Robles v. Central Surety & Insurance Corporation, 188 Kan. 506, 363 P. 2d 427; State v. Lemon, 203 Kan. 464, 466, 454 P. 2d 718.) The plaintiff failed to include in the record all the instructions given by the district court, but we are told in his brief the court properly instructed the jury on all phases of the law of negligence appropriate to the issues set forth in the pretrial order and to the facts and circumstances established by the evidence of the parties. The term “unavoidable accident” excludes and repels the idea of negligence of either party, and implies that the injury could not have been prevented by their exercise of ordinary care and prudence. Hence, and as indicated, if there is any evidence in the record of negligence of either party, an unavoidable or equivalent accident instruction has no application to the case. In this connection, the fact that the instruction used the term “unforeseeable accident” does not except it from our holding in Kreh v. Trinkle, supra. The term bears the same connotation as the term “unavoidable accident” as has been used in instructions in negligence cases involving motor vehicles, and will be considered in that context in our disposition of this appeal. The district court overruled both parties’ motions for directed verdicts, and permitted the issues to be resolved by the jury on the 'basis of the plaintiff’s claim of negligence against the defendant, and its claim of contributory negligence on the part of the plaintiff. It appears the district court was of the opinion a prima facie case had been established by the plaintiff’s evidence and that he had carried his burden of proof on the issue of the defendant’s negligence. If the cause of the injury was unknown, or if the evidence" showed no negligence on the part of the defendant, it would have been entitled to a directed verdict. In the case before us there is strong evidence the defendant driver failed to use proper care in inspecting and maintaining the defendant’s equipment. He had stopped for gasoline approximately four miles east of the point of impact and failed to inspect his tires. The left rear tubeless tire had a four-inch nail in the outer portion which did not penetrate the casing but caused a slow leak where the nail entered the tire. Recause of the wearing effect of the tire around the site of the nail, the evidence was it had been in the tire for some time—it had been picked up quite awhile before the collision, but not within 500 feet from the point of impact. As a result of the slow leak, the tire became low which caused the trailer to whip, and as a result of the whipping, one side of the A-frame hitch which fastened the trailer to the pickup broke, and a portion of the broken hitch dropped down and made gouge marks in the blacktop pavement at intervals for at least 500 feet east of the point of impact. The defendant’s driver felt the pickup weave once or twice before the collision and its sudden movement to the left when the trailer went onto the plaintiff’s side of the highway. He did not hear the hissing sound of escaping air prior to the collision, but simultaneously with the impact he heard a hissing of air. After the collision the left rear tire was flat but the other three tires on the pickup were properly inflated. The only way the low tire could have suddenly gone flat was a sudden pull or push sideways on the rear of the pickup which would cause the bead or rim of the tire to break from the edge of the wheel, which “would let the air out all at once.” The cords on the inside of the tire were not out of place and if the tire had been run flat it would have had a “rim cut on it.” Was Instruction No. 11 a clear misstatement of the law? Considering the evidence of both parties as disclosed in the record, we conclude it was. We are of the opinion the evidence disclosed negligence on the part of the defendant and, under the rule heretofore stated, it was not entitled to an instruction on “unavoidable accident.” The negligence of its driver had created, brought about, or failed to remedy a dangerous condition resulting in a situation where the collision was made inevitable or unavoidable at the time of its occurrence, but that does not entitle the defendant to the protection of the doctrine of unavoidability. (Employers' Mutual Casualty Co. v. Martin, supra.) Was the instruction prejudicial? The determination whether the probable effect of the instruction has been to mislead the jury and whether the error has been prejudicial so as to require reversal depends upon all the circumstances of the case, including a consideration of all the evidence. No precise formula can be drawn. (Kreh v. Tringle, supra.) With the possible exception of conflicting testimony with respect to the escaping of air from the tire when the collision occurred, there is no affirmative evidence that the collision resulted from any cause other than the negligence of the defendant. The special verdict of the jury in favor of the defendant, notwithstanding this state of the record, is in itself an indication that the jury was misled to the plaintiff’s prejudice. Moreover, the giving of the instruction obviously overemphasized the defendant’s case, and the instruction suggested to the jury that it should consider unavoidability as an issue or ground of defense separate and apart from the question of negligence and proximate causation. An attempt by the jury to carry out the direction of the instruction could be expected to result in confusing and misleading its members. In this connection, we keep in mind the tendency which such an instruction would have to induce the jury to believe that the sudden movement of the trailer onto the plantifFs side of the highway was an unavoidable occurrence; that it caused the collision, and that, accordingly, no one should be held liable. In addition, the jury may have been led to disregard the permissible inferences of the plaintiff’s evidence that the defendant’s driver was negligent in not properly maintaining and inspecting the tires and equipment and that he failed to exercise ordinary care and prudence in view of all the facts. Under the circumstances, the record indicates that the error of the district court in giving Instruction No. 11 was prejudicial. The judgment of the district court is reversed with directions to sustain the plaintiff’s motion for a new trial, and to proceed in accordance with the views expressed in this opinion.

The opinion of the court was delivered by Fromme, J.: Linvil “Red” O’Neal was convicted of second degree murder for shooting Jack Maples with a shotgun on October 23, 1967. The defendant waived a jury and was tried before the court. This is a direct appeal. The defendant presents two specifications of error. The first relates to the admission of evidence. The second concerns the sufficiency of the evidence. A summary of the trial evidence follows. The defendant and three other persons had been staying at a farm house located in Johnson county. The men had been cutting firewood to sell in surrounding cities. The three other persons were Jack Maples, Basil Woods and Lura Meginn. Basil Woods testified that there had been hard feelings between the defendant and Jack Maples. Both wanted to boss the operation. They had previously fought and on that occasion the defendant had left the farm house. He returned the following morning. On the evening Jack Maples was killed the men had completed the day’s work and were in the house. Maples began peeling potatoes in the kitchen. He told the defendant to fry them as soon as they were peeled. Woods further testified he went outdoors and shortly thereafter heard a shot. The defendant appeared on the front porch and advised Woods that Maples had said something he didn’t like and he had picked up the gun and shot the “son of a bitch”. Woods then called the sheriff. Lura Meginn testified she saw the defendant go into the kitchen just before the shot was fired. She went into the kitchen and found Maples lying on the floor beside the table. The defendant stated, ‘When anybody does anything against me, they have to answer for it.” When officers Hayes and Guerian arrived they found Maples dead. He was lying on the floor face down with both hands under his stomach. The shotgun was found lying across the arms of a chair in the living room. The defendant was highly emotional and continued to make voluntary statements after being advised of his constitutional rights. One of the defendant’s statements was, “There’s the gun, you can have it, there’s the gun I shot the dirty son of a bitch with.” The defendant was arrested. Sheriff Allenbrand testified he examined the body immediately after pictures were taken at the scene of the crime. He rolled the body of Jack Maples over and observed a partially peeled potato grasped in his left hand. A paring knife was on the floor beside the body. A paper grocery sack containing peelings was on the floor beside the chair. A drain pan was on the table and contained peeled potatoes. Dr. Bridgens performed the autopsy. He testified Jack Maples died from a gunshot wound in his chest. The wound started at the right nipple and extended to the left in a downward course. It terminated at the lower left portion of the rib cage, at which point there were numerous small exit wounds. Shotgun pellets had lodged in the wall below the kitchen table, eleven to twenty inches from the floor. The top of the table was twenty-nine inches from the floor. The chair was located immediately to the left of the table. The defendant gave his version of the shooting at the trial. It was quite different. He said he and Jack Maples were sitting in the kitchen. Maples kept staring at him. The defendant started to leave the room and when he got up Maples had the shotgun. He asked Maples what he was going to do with the gun. Maples jumped up with the gun in his hands and threatened him with it. The defendant grabbed the gun. They wrestled over it. The gun discharged and Maples fell to the floor. We will first consider the question of the sufficiency of the evidence. The defendant points out that under our statute to constitute murder in the second degree the homicide must be committed purposely and maliciously, but without deliberation and premeditation. (K. S. A. 21-402.) He says in such case the act resulting in death must have been committed with the intention of doing some great bodily harm. There must be an intention or consciousness that the act done might reasonably cause death. (Citing State v. Jensen, 197 Kan. 427, 417 P. 2d 273.) He states that his testimony was the only direct evidence of what happened, i. e., Jack Maples precipitated the struggle over the gun and the defendant’s actions were without an intent or consciousness of doing great bodily harm to Maples. Therefore he says the evidence was insufficient to support a conviction. The physical facts surrounding the homicide as previously set forth in this opinion, cast considerable doubt upon the defendant’s story. It was for the trier of the facts to determine how Jack Maples met his death. Obviously the trier of facts was not required to accept defendant’s version if there was sufficient substantial evidence to support the prosecution’s theory. (See State v. Scoggins, 199 Kan. 108, 111, 427 P. 2d 603, and cases cited therein.) There was evidence from which the court might reasonably find the defendant obtained the shotgun from above the door where it was kept and intentionally shot Jack Maples because of their pre vious quarrel. Maples was found by the officers face down on the floor. A paring knife was beside him and a potato was found tightly grasped in his left hand. The physical facts in evidence cast serious doubt upon defendant’s unsupported testimony at the trial. His voluntary statements to those present when Maples was shot were damaging to his theory of the case. The function of this court, when considering the sufficiency of circumstantial evidence to sustain a criminal conviction, is limited to ascertaining whether there was a basis in the evidence for a reasonable inference of guilt. (State v. Patterson, 200 Kan. 176, 434 P. 2d 808.) We have reviewed the record and find a sound basis in the evidence for a reasonable inference that the defendant shot Jack Maples purposely and maliciously. We turn to the remaining specification of error. The prosecution strenuously urged the admission into evidence of a prior conviction for felonious assault which occurred in Missouri. The authenticated journal entry related to one Linville O’Neal. Several fingerprint cards were introduced in evidence to identify Linville O’Neal as being the same person as Linvil “Red” O’Neal. One of the prints was obtained from Linville O’Neal in Missouri when he was committed on the assault charge. A second print had been obtained from the defendant by the Johnson County Sheriff’s office in 1954 in connection with a “DWI” charge. The third set of fingerprints was obtained when defendant was committed on the present murder charge. A fingerprint expert testified he had examined all of these sets of fingerprints and in his opinion they had been taken from Linvil “Red” O’Neal. The defendant objected to the use of these fingerprint cards based upon what was said in State v. Taylor, 198 Kan. 290, 424 P. 2d 612, concerning F. B. I. “rap sheets” used in that case to prove prior convictions under the Habitual Criminal Act (K. S. A. 21-107a). The trial court in the present case admitted the fingerprint cards for identification purposes only. Matters thereon “not relevant to the comparison made by special agent Buchanan” were excluded from consideration. These fingerprint cards were not “rap sheets” as mentioned in Taylor. They were not admitted to prove prior convictions. Assuming for the purpose of this inquiry that the authenticated journal entry from Missouri was admissible, these fingerprint cards were properly used for identification purposes. We find no error in the use made of the fingerprint cards. Objection was made to the Missouri conviction because of remoteness. The conviction was in 1939. In ruling upon the objection the trial court said: “. . . Mr. Boyle [counsel for defendant], what you have said has a lot of merit, what you have said about relevancy, having been some 29 years ago, I think however, this goes to the weight the court will give the exhibit. . . .” The court’s ruling was proper when a prior conviction is otherwise admissible under the statute. (K. S. A. 60-455.) We have held there is no hard and fast rule by which it can be determined when evidence of prior crime, if otherwise admissible, becomes irrelevant because of intervening time. The matter must be left largely to the discretion of the trial court. (State v. Yates, 202 Kan. 406, Syl. ¶ 5, 449 P. 2d 575.) Remoteness in time of a prior conviction, if otherwise admissible, affects generally the weight and probative value and not the admissibility of the evidence. (State v. Fannan, 167 Kan. 723, 207 P. 2d 1176; State v. Poulos, 196 Kan. 287, 411 P. 2d 689.) In Fannan a 17 year old conviction was held properly admitted in a trial before a jury. In our case the trial was before the judge. When there is no jury to be misled by the evidence there is a strong presumption on appeal that the trained mind of the trial judge was not led astray by such evidence and that proper limitations on weight and probative force were applied. (See Nauman v. Kenosha Auto Transport Co., 186 Kan. 305, Syl. ¶ 4, 349 P. 2d 931.) Accordingly we hold remoteness of the prior conviction in Missouri did not render it inadmissible under the specific facts of this case and in light of all the evidence at the time it was introduced. However, this does not mean a prior conviction is never too remote to require exclusion. In State v. Owen, 162 Kan. 255, 176 P. 2d 564, it was held a twenty-eight year old conviction had no probative value under the facts of that case and its admission constituted an abuse of discretion requiring a new trial. A more serious objection to admission of this prior conviction is urged by the defendant. A prior conviction cannot be used as proof a defendant committed a later crime with which he is charged. This rule and the exception thereto are set forth in K. S. A. 60-455. Under the exception in this statute evidence that a person committed a crime on a specified .occasion may be admissible when it is relevant to prove certain material facts bearing upon proof of certain elements of the crime, such as motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. It should be noted the statute says such evidence may be admissible when relevant to prove certain material facts. (See State v. Omo, 199 Kan. 167, 428 P. 2d 768 and State v. Roth, 200 Kan. 677, 682, 438 P. 2d 58.) The determination of relevancy is a matter left to the judicial discretion of the trial judge. However, exercise of that discretion must not be abused. It must be based upon some knowledge of the facts, circumstances or nature of the prior offense. The prosecution in the present case urged the prior conviction to prove intent to commit the present crime and to show the shooting did not occur through mistake or by accident. The prior conviction was for felonious assault. The authenticated copies of the conviction do not show the facts, circumstances or nature of that assault or the means by which it was accomplished. From the record before us we cannot say a weapon was used in the prior assault. There may or may not have been similarities in the facts of that case which would be relevant to prove intent or absence of mistake in the present case. (See State v. Taylor, supra; State v. Motley, 199 Kan. 335, 430 P. 2d 264; State v. Owen, supra; State v. Mader, 196 Kan. 469, 412 P. 2d 1001; State v. Frizzel, 132 Kan. 261, 295 Pac. 658.) On the basis of the record before us we conclude the prior conviction for felonious assault should not have been admitted in evidence in the present case. However, the erroneous admission of evidence during a trial does not in every case require a reversal of a conviction. K. S. A. 60-261 provides: “No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.” On appeal, this court is directed to give judgment without regard to technical errors or defects which do not affect the substantial rights of the parties. (K. S. A. 62-1718). In urging error because of the admission of this prior conviction the defendant presents no federal constitutional question. However, the Kansas harmless error rule may be applied to federal constitutional errors when it appears the error had little, if any, likelihood of having changed the result of the trial and when the court is able to declare such a belief beyond a reasonable doubt. (State v. Fleury, 203 Kan. 888, 457 P. 2d 44.) In Fleury we cited strong federal authority supporting our harmless error rule. (See Chapman v. California, 386 U. S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 and other federal cases cited therein.) What are some of the circumstances and factors in the present case bearing upon the effect this prior conviction may have had upon the result of the trial? The trial was before the district judge who indicated in the record that this twenty-nine year old conviction was entitled to no more than limited weight and probative force. There was no jury to be led astray by considering this evidence. The trial judge limited its force to the single question of intent and lack of mistake on the part of the defendant. The physical facts in evidence had nullified defendants version of the shooting for all intents and purposes. Evidence bearing upon the question of intent and lack of mistake was strong and convincing without resort to the prior conviction. Evidence of this prior conviction was superfluous and is a prime example of “over-trying” the case by the prosecution. Under the circumstances of this case the erroneous admission of the prior conviction could have had little, if any, likelihood of changing the result of the trial. Its admission in this case was harmless error beyond a reasonable doubt. The judgment is affirmed.

The opinion of the court was delivered by Kaul, J.: This is an appeal from an order denying relief on petitioners motion filed pursuant to K. S. A. 60-1507. Petitioner’s motion attacks a sentence for a term of not exceeding three years imposed after a plea of guilty to the offense of escaping from the Kansas State Penitentiary. (K. S. A. 21-734.) Counsel was appointed and petitioner was afforded an evidentiary hearing. After hearing the evidence, the trial court entered findings and conclusions adverse to petitioner. Petitioner then perfected this appeal specifying two points, neither of which has merit. Petitioner claims the trial court erroneously found his plea of guilty to be a voluntary act and further erred in finding the evidence failed to establish the infringement of petitioner’s constitutional rights. There is ample evidence to support the trial court’s findings with respect to both claims of petitioner. Because of the brevity of the abstract, filed by petitioner and the failure of the state to file a counter-abstract, we have secured the court reporter’s complete transcript of the 60-1507 proceedings. Petitioner testified “I knew I was guilty;” further that he entered his plea because he knew he was guilty; had no hope of defeating the charge by a jury trial; and he wanted to escape sentencing under the Habitual Criminal Act. The record discloses petitioner escaped from the penitentiary on January 15, 1965, and was returned on May 7, 1965. On his return petitioner was confined in the segregation and isolation building where he remained until September 19, 1966. Petitioner entered his plea and was sentenced on November 2,1965. Following his return to the penitentiary on May 7, 1965, and the filing of the escape charge, counsel was appointed for petitioner. Petitioner s testimony and correspondence with his attorney, which was introduced by petitioner at his 60-1507 hearing, indicate that, following his appointment, petitioner’s attorney commenced negotiations with the county attorney. Apparently, the county attorney agreed to reduce the charge from breaking prison (K. S. A. 21-732 and 733) to escaping without breaking (21-734) and, further, not to invoke the Habitual Criminal Act to which petitioner admits he was subject. It appears petitioner decided to enter his plea because he was satisfied with these arrangements; and he should have been pleased because the sentence imposed was the absolute minimum under the circumstances. There is nothing in the record which indicates a violation of the guidelines governing plea discussions set forth in State v. Byrd, 203 Kan. 45, 453 P. 2d 22. Petitioner was confined in isolation and segregation for some six months prior to entering his plea of guilty. His statements to the court at allocution, notwithstanding, petitioner now claims confinement amounted to coercion in violation of his constitutional rights. However, his own testimony indicates his plea was prompted by other considerations. Concerning confinement in isolation and segregation what is said in Davis v. State, 204 Kan. 372, 461 P. 2d 812; Knight v. State, 203 Kan. 652, 455 P. 2d 578, and State v. Jenkins, 197 Kan. 651, 421 P. 2d 33, is applicable. We find no reason on any of the grounds urged to disturb the trial court’s judgment and it is affirmed.

The opinion of the court was delivered by Kaul, J.: This is an appeal by respondent and its insurance carrier, hereafter referred to as respondents, from an award of permanent partial disability in a workmen’s compensation case. The examiner’s award of compensation for seventy-five percent permanent partial disability was affirmed by the director. The trial court approved and adopted the findings, decision and award. This appeal followed. The principal issues concern the test applied in determining claimant’s permanent partial disability and whether the award was supported by any substantial competent evidence. Claimant’s employment in respondent’s packing house consisted of wrapping, packaging and handling meat products. She handled trays of wieners weighing up to twenty-four pounds and boxes of bacon ranging in weight from six to twelve pounds. She was injured in the course of her employment on March 17, 1966. Following her injury, claimant underwent a course of conservative treatment under the care of Dr. John B. Jarrott, an orthopedic surgeon, until June 8, 1966, when she was operated for a denucleation of a herniated intervertebral disc. Claimant remained under Dr. Jarrott’s care until June 28, 1967, when she was released with what Dr. Jarrott described as a fifteen percent loss of function. A claim for compensation was filed and the matter first came before Examiner Greenleaf on September 14, 1966, when, on motion of claimant, an order was entered awarding temporary total disability for a period of nine weeks at the rate of $42 per week. At a hearing before Examiner Greenleaf on October 7, 1966, the parties stipulated that claimant was still totally disabled. Claimant was found to be entitled to seventeen weeks and three days temporary total disability at the rate of $42 per week, in addition to the nine weeks ordered paid on September 14, 1966. Respondents were ordered to pay temporary total disability at the rate of $42 per week until further order, but not to exceed a total of 415 weeks. On July 17, 1967, respondents made application for review and requested that temporary total disability payments be terminated as of June 28, 1967, the date claimant was released by Dr. Jarrott. Further evidence was submitted and, on August 27, 1968, Examiner Mauch, who replaced Examiner Greenleaf, made the award from which this appeal stems. Examiner Mauch reviewed all of the evidence, which had been submitted during the proceedings, and found claimant’s average weekly wage was $84.80; that she was entitled to sixty-six weeks of temporary total disability at the rate of $42 per week, followed by a seventy-five percent permanent partial general disability at the rate of $38.16 per week for 349 weeks. After computing sums due and paid, or payable, Examiner Mauch awarded the balance of compensation to be paid at the rate of $38.16 per week for 289 weeks or until further order of the director. At the request of respondents, the director reviewed the award of Examiner Mauch and ordered it affirmed. In his order on review the director noted: “. . . The primary issue on review was the nature and extent of claimant’s disability. Dr. John B. Jarrott testified that the claimant had a 15% functional disability and the examiner found that this amounted to a 75% permanent partial work disability. An examination of the record leads the director to conclude that there is ample evidence therein to sustain the examiner’s finding that the claimant is suffering a 75% permanent partial work disability of the body as a whole and that this is the amount of disability he [she] should be compensated for even though his [her] functional disability is somewhat less. See Puckett v. Minter Drilling Company, 196 Kan. 198; Gray v. Beller, 199 Kan. 284, and Mooney v. Harrison, 199 Kan. 162.” On appeal, pursuant to K. S. A. 44-556 (now K. S. A. 1968 Supp. 44-556), the district court adopted the findings and award of the examiner, as affirmed by the director, and entered judgment accordingly. Thereafter respondents perfected this appeal. Their principal attack on the award is directed at the allowance of seventy-five percent permanent partial disability. A two-pronged argument is presented. First, respondents contend an incorrect standard was used in determining the rate of permanent partial disability and, second, the rate awarded is not supported by any substantial competent evidence. Although not in the order presented by respondents, we believe it more logical to first consider the propriety of the test applied by the trial court and then turn to the question of sufficiency of evidence. As we have already pointed out, the director in his order on review recognized the difference between a functional or anatomical disability and a work disability. In this summary of the evidence, Examiner Mauch stated: “In the judgment of the Examiner, the impairment of function rating of 15% does not accurately reflect the claimant’s work disability. Work disability is determined by measuring the claimant’s ability to obtain and retain work like or a similar kind held at the time of her accident. From the employment history of the claimant, she is employed in a laboring capacity at the Winchester Packing Company as well as prior employment. Her educational background and lack of training is not conducive to work except that obtainable in a laboring capacity or classification.” We believe the test applied by the examiner and director, and adopted by the trial court, conforms with the test prescribed by this court for determining loss of earning capacity in Puckett v. Minter Drilling Co., 196 Kan. 196, 410 P. 2d 414, where we held: “The correct standard for determining the loss in earning capacity of an injured workman is the extent to which his ability has been impaired to procure in the open labor market, and to perform and retain, work of the same type and character he was able to perform before he was injured.” (Syl. ¶ 2.) Our holding in Puckett was adhered to and restated in Mooney v. Harrison, 199 Kan. 162, 427 P. 2d 457, and Gray v. Beller, 199 Kan. 284, 428 P. 2d 833. While respondents admit that loss of function, as found by a doctor, and a partial disability, as found by an examiner, can differ, they assert there still must be some correlation between the two. Respondents contend that the Puckett and Mooney rule was construed too narrowly in its application here. It is argued that Dr. Jarrott’s testimony means that claimant should be able to resume regular work within the limitations of a fifteen percent loss of function and that the examiner put too much emphasis on whether claimant could go back to her same job with respondent Packing Company, when he should have entered the award on her ability to procure work of a similar character in the open labor market. What appears to be inconsistency between a doctor’s theory for rating permanent partial disability and the correct standard prescribed by this court was dealt with in both the Puckett and Mooney decisions. In Puckett we found claimant’s medical witness had clearly deviated from the correct standard of evaluating disability for compensation purposes but his testimony concerning the extent of claimant’s injuries was acceptable, together with other evidence of work disability, in determining permanent partial disability. In discussing this subject in Mooney v. Harrison, supra, we said: “Appellants contend the entire testimony of Dr. Filley should be discredited and thus disregarded because he demonstrated a complete lack of understanding as to disability ratings under Kansas Workmen's Compensation Law. “We cannot agree with appellants’ suggestion. Although they may have established that the doctor was not the best workmen’s compensation attorney, it was no reflection on the doctor’s medical testimony as to the nature and extent of appellee’s injuries. “Regardless of the doctor’s theory for rating permanent partial disability under the Workmen’s Compensation Act, the trial court did not accept his percentage rating. The court was justified in using the doctor’s medical testimony as to the nature and extent of appellee’s injuries in arriving at his own permanent partial disability rating.” (p. 164.) The import of Puckett, as gleaned from the opinion and the futher discussions of the subject in Mooney and Gray, is that it is the function of the trial court to consider the medical testimony concerning loss of function, plus other testimony relating to the extent there has been an impairment of the injured workman’s ability to procure in the open labor market, and to perform and retain, work of the same type and character he was capable of performing before his injury. Taking all of the relative evidence into consideration, it is then the trial court’s function to. determine aá a matter of fact the percentage by which claimant’s ability has been impaired. In the instant case, we do not believe Dr. Jarrott’s testimony expresses a theory deviating from the correct standard. We think a fair analysis of Dr. Jarrott’s testimony is that in finding a general loss of function of fifteen percent, based on disc surgery, he was not attempting to evaluate a work disability for compensation purposes but was establishing a medical or anatomical loss of function amounting to only one facet of claimant’s employability, leaving the ultimate question to be determined by the trier of facts. We believe the record clearly reflects the proper test for determining disability was applied in the proceedings below. The evidence covering the disability rating consisted of the testimony of Dr. Jarrott, William Burger, an employment counselor for the Employment Security Division of the State Labor Department, and that portion of claimant’s testimony bearing on the subject. Bearing in mind that the evidence is not to be weighed by this court and must be considered in the light most favorable to the prevailing party below (Mooney v. Harrison, supra), we briefly summarize the evidence. Claimant testified she was thirty-one years of age, had an eighth grade education, had no special skills or training, had been employed during her entire adult life in manual labor jobs, requiring lifting, walking, bending and stooping; that since her release respondent Packing Company had refused to re-employ her and she has been unable to find other employment because of her disability. In addition to finding a fifteen percent general loss of function, Dr. Jarrott testified that recent x-rays showed claimant had suffered some degeneration in the disc space since surgery; that the lumbo-sacral facets did not match; that she would probably have trouble if she attempted to lift or stand for long periods of time or do anything using her hands over her head; and if she were employed standing and lifting over twenty-five pounds she could anticipate further trouble. Burger testified claimant had been to a great extent eliminated from the manual labor market and her problem is further intensified by her lack of education and training. Although we have limited our presentation of the evidence disclosed in the record, we think the testimony presented amply demonstrates that there was substantial competent evidence to support the trial court’s award. Two other minor points raised by respondents should be mentioned. It is contended that at the hearing on September 14, 1966, counsel stipulated, and Examiner Greenleaf found, claimant’s average weekly wage to be $81.60, and such finding was neither changed nor appealed from in proper time. Therefore, it is argued the trial court erred in finding the average weekly wage to be $84.80. Respondents cited our holding in Scammahorn v. Gibraltar Savings & Loan Assn., 197 Kan. 410, 416 P. 2d 771, that issues are resolved and the record finalized before the examiner, and issues of fact cannot be raised for the first time on appeal to the district court. The principle announced in our holding in Scammahorn is correctly stated by respondents but it is not applicable here. The order of September 14, 1966, was based on proceedings had the preceding day, wherein claimant’s counsel, in answering a question put by the examiner, stated the claimant’s average weekly wage to be $81.60. However, there was no stipulation or finding to that effect. The examiner stated it was only necessary at the time to know that the amount was sufficient to entitle claimant to the maximum temporary total. Counsel for both parties agreed to the examiner’s statement. In the award made by Examiner Mauch on August 27, 1968, the first finding of claimant’s average weekly wage was made and determined to be $84.80, on claimant’s testimony; that she was working a forty hour week at $2.12 an hour. This is the award approved by the director, adopted by the trial court, and appealed from. Respondents complain the award of sixty-six compensable weeks of temporary total disability is excessive by 1.57 weeks. Respondents apparently base their calculations on the interim orders on temporary total disability made by Examiner Greenleaf. An examination of the 1966 and 1967 calendars discloses an interim of sixty-seven weeks between March 17, 1966, the date of injury, and June 28, 1967, the date of claimant’s release from temporary total disability. It appears Examiner Mauch, in finalizing the award on August 27, 1968, subtracted the statutory one week waiting period from the sixty-seven calendar weeks and awarded sixty-six weeks of temporary total. We find no material error in the examiner’s calculation. We find no error in the proceedings below, therefore, the judgment is affirmed.

The opinion of the court was delivered by Price, C. J.: This case grows out of a tax foreclosure action. K. S. A. 79-2804b provides that all actions to open, vacate, modify or set aside any tax foreclosure judgment or any sale made thereunder, must be commenced within twelve months after the date of confirmation of the sale, and that such time limitation is to be construed as a condition precedent to the bringing of any such action and not as a statute of limitations. Under applicable decisions of this court and of the supreme court of the United States the undisputed facts of this case establish that with respect to the service of notice of the tax foreclosure action certain property owner defendants in that action were denied due process of law. More than twelve months after confirmation of the sale in that action those defendants sought—in this action— to set aside the sale of their property as being void. The question here, therefore, is whether the twelve-months time limitation provision of 79-2804b bars them from attacking that sale. The trial court held such provision to be inapplicable and set aside the tax foreclosure sale in question. The purchasers at that sale have appealed. This case was submitted to the trial court on the pleadings and an agreed statement of facts. The background of the matter is this: For many years the Barber county land in question was owned by the Lies family. In 1957 Margaretha Lies owned an undivided one-half interest in both the surface and minerals, and the other undivided one-half interest was owned by her 14 children in equal shares. In that year Margaretha conveyed her undivided one-half mineral interest to her 14 children. Barber county levied a tax on such mineral interest for the year 1957. The tax was not paid. In 1959, 12 of the Lies children conveyed all of their interest in the land—both surface and mineral—to the other 2 children— Barthel N. Lies and Michael J. Lies. Margaretha died in 1966, leaving her interest in the surface of the property to Barthel and Michael. Proper newspaper publication notice of the above mentioned tax delinquency on the one-half mineral interest was given 1958, 1959, 1960,1961 and 1962. The Lies children resided at Andale, in Sedgwick county, and none had ever lived in Barber county. On July 31, 1963, Barber county filed suit to foreclose its tax lien on the mineral interest in question—and on many other tracts and interests not here involved. An exhibit attached to the petition listed all 14 of the Lies children as owners of the mineral interest and Barthel and Michael as the surface owners of record. Summons was issued to the sheriff of Barber county for the 14 Lies children. It was returned as “not found in Barber county.” No summons was ever issued to the sheriff of Sedgwick county and no personal service was attempted or obtained upon any of the Lies children, and they had no actual knowledge of the .pendency of the tax foreclosure action. Pursuant to the “not found” return of the sheriff as to the Lies children, publication service was had.' Without detailing it—it may be said that the affidavit for service by publication—the publication itself—and all proceedings thereunder, including the finding and approval by the court—were in the usual, regular and proper form. In due course the action proceeded to judgment of foreclosure and sale. The mineral interest in question was purchased at the sheriff’s sale by W. Luke Chapin and Ruth Chapin— who are plaintiffs in the present action. The sale to them was confirmed on December 5, 1963, and a sheriff’s deed was issued the next day. A week later Mr. Chapin wrote to the Aylward Drilling Co., the operating lessee, advising it of the tax sale so that Aylward’s records could be corrected accordingly. Aylward did not notify any of its co-lessees or any member of the Lies family about the tax sale after receiving the letter from Chapin. Real estate taxes on the land in question were paid by members of the Lies family at all times up to and including the year 1963 when the tax foreclosure action was filed as to the one-half mineral interest which had been conveyed by Margaretha to her children in 1957. While that mineral deed did not list the addresses of the grantees therein, and the records in the county treasurer’s office did not show their addresses on the mineral interest roll-book— nevertheless— “These addresses could have been discovered by county officials had they referred to the personal property tax rolls and personal property tax receipts as to taxes on the gas produced, or had they referred to real estate tax rolls. Tax receipts for the years 1960, 1961 and 1963 showing the address of members of the Lies family as Andale, Kansas, are attached as Defendants’ Exhibits F. G and H. (See Defendants’ Exhibit E).” In February 1967 the Chapins—the purchasers at the tax foreclosure sale in 1963, and who, in the meantime, had paid taxes on the mineral interest in question—brought this action against Aylward and Cities Service Gas Co. for damages for conversion of' gas produced and sold. For our purposes the issues between those parties need not be noted. Hereafter the Chapins will be referred to as plaintiffs. On June 1,1967, Barthel and Michael Lies, whose mineral interest had been sold to plaintiffs at the tax foreclosure sale, filed, as intervening defendants, an answer, which, by way of an affirmative defense, alleged their lack of notice of the tax foreclosure action until more than twelve months after the execution of the sheriff’s deed; that their addresses were at all times readily available to the county officials so that actual notice of the pendency of the tax foreclosure action could have been given to them personally; that the lack of personal notice to them was in violation of their rights under both the federal and state constitutions, and that the sheriff’s deed to the purchasers (plaintiffs) was therefore null and void. As stated, this case was submitted to the trial court on the pleadings and an agreed statement of facts—a portion of which is quoted, above. In its judgment the court found and ruled that under the authority of Pierce v. Board of County Commissioners, 200 Kan. 74, 434 P. 2d 858, the sale of the mineral interest owned by the intervening defendants Lies was void because they had not been given personal notice of the pendency of the tax foreclosure action as required by the federal and state constitutions; that defendants Lies had not been guilty of laches and were not estopped from asserting their rights and that Aylward (the operating lessee) was not their agent, and that the twelve-months time limitation provision of K. S. A. 79-2804b was not applicable to the case. Accordingly, it was held that the sheriff’s deed of December 6, 1963 issued to the plaintiffs in this action be set aside. Defendants Lies were directed to pay into court for the benefit of plaintiffs all mineral taxes assessed against the mineral interest in question for the years 1964, 1965, 1966 and 1967, with interest, plus their proportionate costs of the tax foreclosure case and their proportionate court costs of this action. It was further ordered that plaintiffs were not entitled to damages, and that Aylward and other named defendants had a valid and subsisting oil and gas lease as their interests were set out in the stipulation of facts. Plaintiffs appeal from that judgment. We thus have this situation: The undisputed facts are that the whereabouts and addresses of defendants Lies were at all times readily available so that they could have been personally served with summons in the 1963 tax foreclosure action. Instead—service by publication was had, but they had no actual knowledge of the pendency of that action. The precise question, therefore, narrows down to this: Did the lack of personal service amount to a denial of due process of law—and, if so—does the twelve-months time limitation provision of K. S. A. 79-2804b nevertheless bar them from attacking the tax foreclosure sale? In addition to the provisions of 79-2804b mentioned earlier in this opinion, the section provides that the petition in every such action shall show that it was commenced within the twelve-months time limitation, and that if any action is not commenced within that period or if the petition does not show it was so commenced—the court shall have no jurisdiction of the action. The sweeping provisions of the statute have been before this court in a number of cases. See Shell Oil Co. v. Board of County Comm’rs, 171 Kan. 159, 231 P. 2d 220 (opinion on rehearing, 171 Kan. 595, 237 P. 2d 257; appeal dismissed for the want of a substantial federal question, 342 U S 938, 96 L ed 698, 72 S Ct 562) and Phillips Petroleum Co. v. Moore, 179 Kan. 482, 297 P. 2d 183. Those decisions are authority for the proposition that the time limitation provision of the statute is absolute—regardless of any claimed infirmity in a tax foreclosure action. Adherence to the “absolute” rule would mean that here the intervening defendants Lies were out of time, for their rights were not asserted until June 1, 1967, when they filed their intervening answer—which was some three and one-half years subsequent to the date of confirmation of the tax foreclosure sale. In Walker v. City of Hutchinson, 178 Kan. 263, 284 P. 2d 1073, the city condemned a part of Walker’s property for street purposes. The appraisers who were appointed to determine compensation were required by statute to give at least 10 days notice of their proceedings either in writing or by one publication in the official city paper. They chose the latter method of giving notice. Walker later sought an injunction to prevent the alleged trespass on his property alleging that he had not been notified of the proceedings, knew nothing of them, and that the publication .notice was insufficient to satisfy the Fourteenth Amendment’s requirements of due process. The trial court denied relief. On appeal, this court affirmed —holding that the notice by publication did not deprive him of due process of law. Upon appeal to the supreme court of the United States that court reversed (Walker v. Hutchinson City, 352 U S 112, 1 L ed 2d 178, 77 S Ct 200) and held that the newspaper publication alone was not adequate notice as required by due process, where, as the facts showed, the owner’s (Walker’s) name was known to the condemning city and was on the official records. In so holding the court followed the rule announced in Mullane v. Central Hanover Tr. Co., 339 U S 306, 94 L ed 865, 70 S Ct 652, to the effect that, if feasible, notice must reasonably be calculated to inform parties of proceedings which may directly and adversely affect their legally protected interests. It will be noted that our decision in the Phillips case, above, which gave sweeping approval to publication service in a tax foreclosure action where it was contended personal service could have been had—was handed down on May 5, 1956. The Walker case, above, was decided by the supreme court of the United States on December 10, 1956. In several respects the recent case of Pierce v. Board of County Commissioners, 200 Kan. 74, 434 P. 2d 858, relied on by the trial court, bears a striking similarity to the case now before us. Pierce lived on his property in Leavenworth county. In a tax foreclosure action summons was issued for him, but was returned by the sheriff of Leavenworth county as not served for the reason that, after diligent search, he was unable to locate him (Pierce) in the county. Thereafter, publication service was had and the action proceeded to judgment and sale of Pierce’s property. He later sued to set aside the sale, alleging that the tax foreclosure proceedings were void in that in the affidavit for publication service it was knowlingly and falsely alleged that personal service could not be had on him— when in truth and in fact he resided on the premises. Following a trial, the court set aside the sale. The purchaser at the sale, Davis, appealed. This court affirmed, and, in doing so, discussed in detail the requirements of due process as laid down by the supreme court of the United States in the Mullane and Walker, cases, above. While our decision recognized that K. S. A. 79-2801 et seq. provides a full, complete and comprehensive procedure for the foreclosure of tax liens and the sale of real estate thereunder, including the institution of actions or proceedings to open, vacate or set aside any judgment entered, or any sale made under the provisions of the act—to the exclusion of other statutes (K. S. A. 60-309) relating to the opening of default judgments rendered on publication service—it nevertheless was held that the failure to serve the landowner (Pierce) with personal notice in the tax foreclosure action resulted in his being deprived of his property without due process of law (syl. 8). There as here—the whereabouts and residence of Pierce could have been ascertained by the very simple expedient of examining the courthouse records. It is quite true, as urged by plaintiffs here—that in the Pierce case the action to set aside the sheriff’s sale was brought within twelve months from the date of confirmation of sale, and therefore this court was not called upon to decide the precise question presented here as to the application of the limitation period when the action to set aside is brought after that period. In the Pierce case, syl. 2 and corresponding portions of the opinion of the Phillips case were disapproved. Syl. 5 and 6 of the Pierce case read: “The requirements of due process contemplate that, where feasible, notice of legal proceedings be given by means reasonably calculated to inform all parties having legal rights which might be directly and adversely affected thereby. “Where the names and addresses of adverse parties are known or easily ascertainable, notice of pending proceedings by publication service, alone, is not sufficient to satisfy the requirements of due process under the 14th Amendment to the federal Constitution or § 2 of the Bill of Rights of the Kansas Constitution.” Notwithstanding the purpose and legislative intent of K. S. A. 79-2804b to bring about finality and stability to tax titles unless attacked within the twelve-months period—we hold that the provision in question must give way to a situation where the facts clearly establish a denial of due process of law. We do not mean to imply—nor has the supreme court of the United States ever declared—that constructive service by publication will never satisfy constitutional requirements of due process. Indeed, there undoubtedly are many instances where the notice provided by publication service is the only method possible. But—just as in the Pierce case—such was not true in the case before us. We hold, therefore, that as to the intervening defendants Lies— the proceedings in the tax foreclosure action resulted in their being deprived of their property without due process of law—and that the twelve-months time limitation provision of 79-2804b is inapplicable. Other questions raised in the pleadings and briefs thus become moot and require no discussion. The trial court was correct in ruling that the sale of the mineral interest owned by the intervening defendants Lies was void and that they were not barred from attacking it by the twelve-months time limitation provision of K. S. A. 79-2804b. The judgment is affirmed.

The opinion of the court was delivered by Schroeder, J.: This is a proceeding instituted pursuant to K. S. A. 60-1507 to vacate a judgment and sentence to life imprisonment upon the defendant’s conviction of murder in the first degree in the year 1956. Appeal has been duly perfected from the refusal of the trial court to grant relief. The underlying questions are whether a confession made by the appellant while in custody and prior to trial was properly admitted into evidence before the jury in the trial of the criminal action, and whether the error, if any, was waived by the appellant’s failure to take an appeal from the conviction. On the 3rd day of April, 1956, a complaint was filed in the district court of Sedgwick County, Kansas, by Detective Floyd Hannon of the Wichita police department. The complaint charged Robert E. Lee Barnes and his wife with first degree murder. Pursuant to a warrant Detective Hannon was dispatched to Miami, Florida, where Barnes and his wife were in custody. As a result of conversations between Barnes and Hannon at the Miami, Florida, police station, Barnes gave both an oral and a written confession which is the subject of this litigation. As a result of the statements made by Barnes in Florida the charges against Barnes’ wife were dropped and only Barnes was returned to the state of Kansas. Barnes contends by reason of threats designed to implicate his wife, and the statement of Hannon that their child would be placed in the custody of juvenile authorities, his confession was involuntarily made. At the trial of the criminal action the voluntariness of Barnes’ confession was determined by the trial court in a collateral proceeding, but the trial court admitted only the testimony of Detective Hannon, holding that all the state was required to do was make a prima facie showing that the confession was voluntarily made. The trial court refused to hear the testimony of Barnes in the collateral proceeding conducted in the absence of the jury. The trial court held if Barnes desired to present testimony challenging the voluntary character of his confession it was defensive matter for the jury to hear. It also ruled that if Barnes took the stand to testify he would be subject to cross examination on all matters in connection with the offense charged. This was the situation presented in State v. Milow, 199 Kan. 576, 433 P. 2d 538, where this court held such procedure violated the requirements of Jackson v. Denno, 378 U. S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774, 1 A. L. R. 3d 1205. There the Supreme Court of the United States held a collateral proceeding to determine the voluntariness of a confession, where the inquiry was not based upon a consideration of the totality of the circumstances, violated the due process clause of the Fourteenth Amendment to the Federal Constitution. In the 1507 proceeding presently before this court on appeal the trial court granted the appellant an evidentiary hearing at which he was present and testified. His court-appointed counsel also testified. The hearing was conducted on the 13th day of January, 1968, and the appellant was assisted by court-appointed counsel. As a result of such evidentiary hearing the trial court found “A proper hearing was not held” at the trial of the criminal action to determine the voluntariness of the appellant’s confession, as required by Jackson v. Denno, supra, and it ordered that such hearing be granted. On the date set for such, hearing, January 19, 1968, the trial court reconsidered its ruling and reversed its position, holding the appellant had waived the constitutional issue by failing to take an appeal from the conviction. The trial court said: “. . . In view of my finding that it was the movant’s decision to let the judgment and verdict stand as it was, I certainly can’t find that there were any exceptional or that there are any exceptional circumstances excusing the failure to appeal. Based upon Rule 121 (c) and the cases cited by the state this morning, if there is not an exceptional circumstance excusing failure to take an appeal, then even constitutional issues have been waived.” At the evidentiary hearing in the 1507 proceeding both the appellant’s two court-appointed counsel and the appellant testified as to discussions concerning an appeal from the murder conviction. As a result of the evidence presented the trial court found the appellant’s final determination not to appeal was based upon the law involved and the evidence presented at the time of the trial in the criminal action, and his decision was not based upon lack of funds. The record discloses letters were written by counsel appointed for the appellant in the criminal proceeding for the purpose of obtaining money to file an appeal, but his 1956 counsel testified at the hearing in the 1507 proceeding the appellant was unable to obtain any money. These letters were proffered at the motion for rehearing of the 1507 proceeding but were not admitted. The record further discloses that early in 1960 the appellant wrote a letter to his court-appointed attorney in the 1956 trial who responded as follows: “. . . You will recall that no appeal was ever taken, largely because I defended you on an appointment basis for a total fee of $140.00, and at that time there was no provision for an appointment counsel for appeals. As a consequence so far as I know, no transcript of the case was ever prepared.” On appeal the appellant contends his right to due process of law as provided by the Fourteenth Amendment to the Federal Constitution was violated during the trial in 1956. This point is well taken in the light of Jackson v. Denno, supra, State v. Milow, supra, and subsequent federal decisions. Under State v. Seward, 163 Kan. 136, 181 P. 2d 478, and State v. Hayes, 106 Kan. 253, 187 Pac. 675, as construed in State v. Milow, supra, it was trial error under existing Kansas law to admit the appellant’s confession upon the limited evidence presented in the collateral proceeding. Viewed as of the time the appellant’s 1507 hearing was conducted before the trial court in 1968, the limited collateral proceeding conducted by the trial court at the appellant’s murder trial in 1956 to determine the voluntariness of the appellant’s confession also violated the appellant’s constitutional right because Jackson v. Denno, supra, has been given retroactive application. The Jackson decision was held applicable to another case involving a federal habeas corpus proceeding which was pending at the time it was rendered. (McNerlin v. Denno, Warden, 378 U. S. 575, 12 L. Ed. 2d 1041, 84 S. Ct. 1933.) In Johnson v. New Jersey, 384 U. S. 719, 16 L. Ed. 2d 882, 86 S. Ct. 1772, the Supreme Court said: “. . . Similarly, Jackson v. Denno, 378 U. S. 368 (1964), which involved the right of an accused to effective exclusion of an involuntary confession from trial, was itself a collateral attack. In each instance we concluded that retroactive application was justified because the rule affected ‘the very integrity of the fact-finding process’ and averted ‘the clear danger of convicting the innocent.’ Linkletter v. Walker, 381 U. S., at 639; Tehan v. Shott, 382 U. S., at 416.” (pp. 727, 728.) Further in the opinion the court stated: “Finally, we emphasize that the question whether a constitutional rule of criminal procedure does or does not enhance the reliability of the fact-finding process at trial is necessarily a matter of degree. We gave retroactive effect to Jackson v. Denno, supra, because confessions are likely to be highly persuasive with a jury, and if coerced they may well be untrustworthy by their very nature. . . .” (pp. 728, 729.) The appellant also contends his right to the effective assistance of counsel and equal protection under the due process clause of the Fourteenth Amendment to the Federal Constitution was denied and thereby deprived him of a constitutional right in 1956, because the Kansas law at that time did not authorize the appointment of counsel to assist him in the perfection of an appeal from his conviction and sentence. This point is well taken. In 1956 G. S. 1949, 62-1701 provided that an appeal to the Su preme Court of the state of Kansas may be taken by a defendant as a matter of right from any judgment against him, but no statute or rule of the Supreme Court of the state of Kansas required the appointment of counsel on appeal, except in a case where an indigent defendant had been found guilty of murder in the first degree and his punishment fixed at death. (Smith v. Crouse, 192 Kan. 171, 176, 386 P. 2d 295.) After the appellant’s conviction of murder in the first degree he filed no notice of appeal and made no request for the appointment of counsel to assist him in an appeal. The latter, of course, would have been futile. His then court-appointed counsel filed a motion for a new trial raising as one of the trial errors the admission of the appellant’s confession in evidence at his trial in 1956. At the hearing in the 1507 proceeding the appellant’s court-appointed counsel in 1956 testified they did not think the collateral hearing on voluntariness of the confession was sufficient to comply with Kansas law and might have constituted error. Since the appellant’s conviction in 1956 the Supreme Court of the United States in Douglas v. California, 372 U. S. 353, 9 L. Ed. 2d 811, 83 S. Ct. 814, rehearing denied 373 U. S. 905, 10 L. Ed. 2d 200, 83 S. Ct. 1288, ruled that it was a denial of the equality demanded by the Fourteenth Amendment to deny an indigent defendant the right to counsel to assist in the perfection of his appeal from an adverse judgment. The court there stated: “. . . There is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel’s examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself. The indigent, where the record is unclear or the errors are hidden, has only the right to a meaningless ritual, while the rich man has a meaningful appeal.” (pp. 357, 358.) The United States Court of Appeals elaborated on Douglas v. California, supra, in Chase v. Page, 343 F. 2d 167 (10th Cir. 1965), where it said: “We know that the State of Oklahoma may, consistently with Fourteenth Amendment due process, fail to provide for appeal in criminal cases, or it may provide for an appeal upon such terms as it deems appropriate. [Citations omitted.] But, once an appeal as of right is recognized, it must be afforded to the rich and the poor alike. To that end an indigent person is constitutionally entitled to the assistance of counsel to insure the equal exercise of the right. Specifically, the convicted person is entitled to advice of counsel on the issue of his financial ability to provide an adequate record to enable the appellate court to determine the merits of his appeal as if he were a non-indigent person. See Douglas v. People of the State of California, 372 U. S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811, rehearing denied 373 U. S. 905, 83 S. Ct. 1288, 10 L. Ed. 2d 200; Lane v. Brown, 372 U. S. 477, 83 S. Ct. 768, 9 L. Ed. 2d 892; Draper v. State of Washington, 372 U. S. 487, 83 S. Ct. 774, 9 L. Ed. 2d 899.” (p. 170.) The court there further said in speaking of the federal law: “. . . This court has recently held that the time for filing an appeal under Rule 37 (a) (2) of the Federal Rules of Criminal Procedure does not commence to run until a federally convicted defendant has been advised of his right to appeal and effective assistance of counsel afforded. And, a convicted, confined person who has not been afforded the assistance of counsel concerning his right of appeal and the exercise thereof may collaterally attack his judgment of sentence. . . .” (pp. 170, 171.) In accordance with the import of the Douglas decision, the Supreme Court of Kansas adopted Rule No. 56 on April 16, 1963, (now appearing in Prefatory Rule No. 1 [f], 201 Kan. xv), which reads: “ ‘When any defendant has been convicted of a felony and he is without means to employ counsel to perfect an appeal to the supreme court, he may make affidavit to that effect, stating that he intends to appeal and requesting the appointment of counsel. The judge of the court in which such defendant was convicted shall, when satisfied that the affidavit is true, appoint competent counsel to conduct such appeal.’ ” The effect of the Douglas decision was discussed in Porter v. State, 196 Kan. 732, 414 P. 2d 56. There it was held “the failure to prosecute a pro se appeal, . . . due to the lack of advice or assistance of counsel at any time concerning the appeal, constitutes a denial of due process.” (p.734.) (Emphasis added.) Furthermore, Douglas v. California, supra, has been given retroactive application. The Kansas Supreme Court in Smith v. Crouse, supra, ruled that Douglas v. California, supra, was not entitled to be applied retroactively, but was promptly reversed in Smith v. Crouse, Warden, 378 U. S. 584, 12 L. Ed. 2d 1039, 84 S. Ct. 1929, in a per curiam opinion. The retrospective application of Douglas v. California, supra, is also affirmed by Daegele v. Kansas, 375 U. S. 1, 11 L. Ed. 2d 44, 84 S. Ct. 89, which reversed the Kansas Supreme Court without an opinion, citing the Douglas case. For other federal decisions touching upon the point, see Spaulding v. Taylor, 234 F. Supp. 747 (D. Kan. 1964); and Donnell v. Swenson, 258 F. Supp. 317 (W. D. Mo. 1966). It follows any attempt the appellant might have made for the assistance of counsel to perfect an appeal from his murder convic tion in 1956 would have been futile. It cannot be said he had the effective benefit of counsel after his trial and conviction. The trial court found the appellant’s constitutional right to have counsel appointed to assist him in an appeal was immaterial because the appellant had decided to let the judgment and verdict stand without taking an appeal. Did the appellant waive any reviewable error by failing to perfect an appeal to the Kansas Supreme Court within tihe statutory period after the 1956 judgment of conviction and sentence? When the remedy afforded a prisoner in custody under sentence of a court of general jurisdiction, claiming the right to be released, may be invoked under K. S. A. 60-1507 is set forth in Supreme Court Rule No. 121 (c) (201 Kan. xxxiii). Insofar as this proceeding is concerned Rule No. 121 (c) (3) is pertinent. It provides: “. . . (3) a proceeding under section 60-1507 cannot ordinarily be used as a substitute for direct appeal involving mere trial errors or as a substitute for a second appeal. Mere trial errors are to be corrected by direct appeal, but trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal, provided there were exceptional circumstances excusing the failure to appeal.” (Emphasis added.) The appellant argues the provisions of K. S. A. 60-1507 are relatively new to Kansas law, having been enacted as a part of the Laws of 1963, ch. 303, which became effective January 1, 1964. To implement the proceedings under 60-1507 the Supreme Court on the 16th day of October, 1964, promulgated Rule No. 121 (201 Kan. xxxii). The appellant argues there was no restriction on the filing of a motion for relief under the statute as is presently made by Rule No. 121 (c) (3), and he contends the limitations imposed by the rule cannot be applied retroactively to prohibit rights existing under the statute prior to October 16, 1964. (Citing McQueeney v. State, 198 Kan. 642, 426 P. 2d 114.) A similar contention was made in King v. State, 195 Kan. 736, 408 P. 2d 599. There the appellant contended Rule No. 121 (c) (2) should not have been applied- to him because it was adopted after his action was filed. There the court said: “. . . We find no merit in this claim, for we believe the rule is but declarative of the law which long has been applicable to actions of this character. “In our judgment, it was the intention of the legislature when it enacted K. S. A. 60-1507 that proceedings brought thereunder should be coextensive with habeas corpus proceedings. . . .” (p.738.) The court then points out the law in habeas corpus was in accord with the rule. The scope of collateral attack under habeas corpus prior to the enactment of Rule No. 121 was the same as the rule. (Strong v. Edmondson, 177 Kan. 247, 277 P. 2d 585; and Lee v. Hoffman, 179 Kan. 303, 293 P. 2d 1010.) The exception to the rule noted by the court in Perrin v. State, 196 Kan. 228, 410 P. 2d 298, and in McQueeney v. State, supra, was based on a portion of the rule which was not declaratory of the law in existence. Prior to the rule there was no form in habeas corpus proceedings prescribed by law requiring the petitioner to list all of his grounds for relief. Here the scope of the petitioner’s remedy was not changed by Rule No. 121. The errors with which we are concerned in the instant case affect the appellant’s constitutional rights, and the immediate question posed is whether there are exceptional circumstances excusing the appellant’s failure to appeal. The appellant analyzes the cases in which Rule No. 121 (c) (3), formerly No. 121 (c) (4), has been cited, and concludes that no definition or standard has been set forth concerning “exceptional circumstances.” Without burdening our opinion by a review of these cases, it may be conceded our decisions under this rule have heretofore established no definite guidelines to follow. This has been occasioned by several factors. The statutory provisions of K. S. A. 60-1507 are relatively new; recent decisions of the United States Supreme Court regarding indigent persons accused of crime have changed existing law; and the United States Supreme Court has enlarged the federal constitutional rights of persons accused of crime by construction of the United States Constitution. These changes have resulted in the presentation of unique questions in criminal appeals and in appeals from proceedings instituted pursuant to 60-1507, supra. To avoid proliferating litigation and give meaningful review in such cases, this court has attempted to consider points raised by persons accused of crime at the first opportunity, where it appears they are entitled to a review. Accordingly, the “exceptional circumstances” affording review in a 1507 proceeding, where the errors have not been raised on appeal, have in the past been rather loosely construed. (For the most recent cases, see Holt v. State, 202 Kan. 759, 451 P. 2d 221; Bush v. State, 203 Kan. 494, 454 P. 2d 429; and Peterson v. State, 203 Kan. 959, 457 P. 2d 6.) On this point what the Supreme Court of Pennsylvania has said in Com. ex rel. Harbold, Appellant v. Myers, 417 Pa. 358, 207 Atl. 2d 805, is expressive of the action heretofore taken in Kansas. The court there said: “. . . This Court has exercised particular vigilance to see that, on both direct and collateral review, claims of federal, as well as state, constitutional rights are comprehensively and justly entertained and decided by our state courts. Federal rights concern us as much as any other rights which we are charged to enforce. This practice has frequently been maintained even where established post-trial procedures may have been negligently or inadvertently ignored. Indeed, the practice has been followed even where there has been some possibility of a conscious choice to forgo the usual direct review provided, but where the record nevertheless does not clearly support a finding of intelligent, understanding waiver of orderly review procedures. . . .” (p. 366.) As the criminal law becomes more settled, guidelines will gradually emerge. This court in State v. Richardson, 194 Kan. 471, 399 P. 2d 799, recognized that 60-1507, supra, was new to Kansas law and followed the language of a federal statute. (28 U. S. C. § 2255, originally enacted in 1948.) The court then said, “It may therefore be said the body of federal law which has developed under § 2255, supra, should be given great weight in construing the provisions of 60-1507, supra, in the Kansas law.” (p. 472.) Looking then to the federal law to see whether the appellant’s failure to appeal his 1956 conviction constituted a waiver of his constitutional rights which had been denied him, as heretofore indicated, we find some landmark cases in point. In Johnson v. Zerbst, 304 U. S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019, the court was confronted with the question as to whether a petitioner had waived his constitutional right. In the opinion the court summarized the federal law to be: (1) That courts will indulge every reasonable presumption against a waiver of fundamental rights, and do not presume acquiescence in their loss; (2) that a waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege; (3) that the determination of whether there has been an intelligent waiver must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused; and (4) that federal habeas corpus is available to a defendant who, without having effectively waived his constitutional rights, has been convicted and sentenced, and to whom expiration of time has rendered relief by an application for a new trial or by an appeal unavailable. The Supreme Court of the United States in Fay v. Noia, 372 U. S. 391, 9 L. Ed. 2d 837, 83 S. Ct. 822, after an exhaustive discussion of the question of waiver and the citation of many prior decisions of that court, held that a defendant who had been convicted by the use of a coerced confession in a state court could obtain relief in a federal habeas corpus proceeding, notwithstanding the fact of a procedural defect in the state courts which barred any challenge to the conviction in state courts. In the opinion the court said: “. . . We therefore hold that the federal habeas judge may in his discretion deny relief to an applicant who has deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies. “But we wish to make very clear that this grant of discretion is not to be interpreted as a permission to introduce legal fictions into federal habeas corpus. The classic definition of waiver enunciated in Johnson v. Zerbst, 304 U. S. 458, 464—‘an intentional relinquishment or abandonment of a known right of privilege’—furnishes the controlling standard. If a habeas applicant, after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate by-passing of state procedures then it is open to the federal court on habeas to deny him all relief if the state courts refused to entertain his federal claims on the merits—though of course only after the federal court has satisfied itself, by holding a hearing or by some other means, of the facts bearing upon the applicant’s default. Cf. Price v. Johnston, 334 U. S. 266, 291. At all events we wish it clearly understood that the standard here put forth depends on the considered choice of the petitioner. Cf. Carnley v. Cochran, 369 U. S. 506, 513-517; Moore v. Michigan, 355 U. S. 155, 162-165. A choice made by counsel not participated in by the petitioner does not automatically bar relief. Nor does a state court’s finding of waiver bar independent determination of the question by the federal courts on habeas, for waiver affecting federal rights is a federal question. E. g., Rice v. Olson, 324 U. S. 786. “. . . Our decision today swings open no prison gates. Today as always few indeed is the number of state prisoners who eventually win their freedom by means of federal habeas corpus. Those few who are ultimately successful are persons whom society has grievously wronged and for whom belated liberation is little enough compensation. Surely no fair-minded person will contend that those who have been deprived of their liberty without due process of law ought nevertheless to languish in prison. . . .” (pp. 438-441.) The state relies upon Thornton v. United States, 368 F. 2d 822 (D. C. Cir. 1966), and quotes at length from the language in the opinion. In a five to three decision in Kaufman v. United States, 394 U. S. 217, 22 L. Ed. 2d 227, 89 S. Ct. 1068, the United States Supreme Court rejected the rule announced in the majority opinion in Thornton and adopted the reasoning of the dissent. In Kaufman the court held: (1) That a federal prisoner’s claim that he was convicted on evidence obtained in an unconstitutional search and seizure was cognizable in a postconviction proceeding under 28 U. S. C. § 2255, it not being necessary that there be a showing of special circumstances; and (2) that failure to appeal from a conviction did not deprive a federal postconviction court of power to adjudicate the merits of constitutional claims. It is the state’s contention that Kansas follows the Thornton rule— that there must be exceptional circumstances excusing the failure to appeal, to authorize collateral attack upon a judgment, even as to errors affecting constitutional rights. The effect of a change in constitutional law or a change in the interpretation of constitutional law on waiver has been considered in a number of cases. After the exclusionary rules announced in Mapp v. Ohio, 367 U. S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684 (1961), applied retroactively to cases that had not become final at the time of the decision, courts have held that failure to object to the introduction of illegally obtained evidence did not constitute a waiver of the accused’s right. (See United States v. Maroney, 339 F. 2d 710 [3rd Cir. 1965]; and Dillon v. Peters, 341 F. 2d 337 [10th Cir. 1965].) The decided cases apply the same principle of nonwaiver to constitutional changes of law or interpretation brought about by the Jackson v. Denno decision which is retroactively applied. Perhaps the most persuasive authority for the proposition that Jackson v. Denno is to be applied to convictions already finalized, even though no specific objection was made that the judge did not rule on voluntariness prior to submitting the confession to the jury, is Jackson v. Denno itself. Jackson was convicted in 1960 or 1961. Although an objection was made as to the confession of Jackson, the objection was on the ground that the confession was involuntary, not the jury determination of voluntariness on which Jackson was ultimately decided. An appeal was taken, but this point was not raised until later during federal habeas corpus proceedings. In fact, the dissenting opinions commented on the failure to raise the question at trial and on appeal and on the fact that the question was not properly before the court or properly briefed. Before the Jackson v. Denno decision was a day old, it was relied upon to reverse eleven cases in which the Jackson v. Denno principle was not the principal point, if raised at all. (See Jackson v. Denno, supra, footnote 9, p. 406.) Justice Black, with whom Justice Clark joined, dissenting in part and concurring in part, stated: “. . . Certainly if having the voluntariness of their confessions passed on only by a jury is a violation of the Fourteenth Amendment, as the Court says it is, then not only Jackson but all other state and federal prisoners already convicted under this procedure are, under our holding in Fay v. Noia, 372 U. S. 391, entitled to release unless the States and Federal Government are still willing and able to prosecute and convict them. Cf. Doughty v. Maxwell, 376 U. S. 202; Pickelsimer v. Wainwright, 375 U. S. 2. . . .” (p. 406.) Without further burdening this opinion with federal decisions, counsel for the appellant in a commendable brief cite numerous federal decisions in which relief was granted on writs of habeas corpus from pre Jackson v. Denno trials, and also in which relief was granted on appeals from pre Jackson v. Denno trials. The brief may be found on file in the state library for those interested. In connection with this point two cases deserve mention. In Proctor v. Anderson, 361 F. 2d 557 (D. C. Cir. 1966), the matter came before the court on a writ of habeas corpus raising the Jaclcson issue. The petitioner had been tried and sentenced in 1963 and appealed raising the contention that a statement had been taken in violation of Mallory v. United States, 354 U. S. 449, 454, 1 L. Ed. 2d 1479, 77 S. Ct. 1356. Although Jackson v. Denno, supra, had been decided before the appeal was completed, it was not considered because the petitioner at no stage of the proceedings sought a hearing and determination on the issue of voluntariness of his confession. Two weeks after that decision the petitioner filed a petition for rehearing en banc. There was no suggestion whatever of a claimed Jackson v. Denno issue. The petition for rehearing en banc was denied and the petitioner sought certiorari. One month before the Supreme Court denied certiorari, the petitioner raised the Jackson v. Denno issue by filing a supplemental petition for rehearing en banc. In it he claimed, for the first time, that the district court had erred in submitting to the jury the issue of voluntariness of his confession. The supplemental petition was denied in Proctor v. United States, 343 F. 2d 317 (D.C. Cir. 1955), and no appeal was taken from that order of denial. In the dissenting opinion Judge Bazelon stated: “. . . This claim, it is further alleged was not argued on appeal because it was not supported by then-existing law, and was not argued in the earlier petition for rehearing en banc because counsel was not then aware of the Supreme Court decisions in Jackson v. Denno, 378 U. S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 1028 (1964); and Muschette v. United States, 378 U. S. 569, 84 S. Ct. 1927, 12 L. Ed. 2d 1039 (1964). Petitioner’s claim appears to have substantial merit. . . .” (p. 317.) One month later in Proctor v. Anderson, supra, the petitioner filed a petition for a writ of habeas corpus again raising the Jackson v. Denno issue. That petition was treated as a motion for relief under § 2255, and the United States Court of Appeals for the District of Columbia Circuit held that relief should be granted. In the opinion it was stated: “It appearing that the trial judge referred the question of voluntariness of the confession to the jury without first making that determination himself. “It is ordered that this case be, and it is hereby, remanded to the District Court for hearing on voluntariness of the confession admitted in evidence. Jackson v. Denno, . . .” (p.558.) A case decided by the Supreme Court of Michigan bearing on the point presently before this court is People v. Ubbes, 374 Mich. 571, 132 N. W. 2d 669. The appellant had no appeal from his conviction as a matter of right because the trial took place in 1961. The court granted leave to appeal upon application, but limited the appeal to three questions raised in the application: (1) Was defendant’s confession obtained while defendant was held in custody without being taken before a magistrate admissible? (2) was defendant’s confession involuntary as a matter of fact? and (3) was there an illegal search and seizure? The court stated: “Diligent defense counsel, both after the preliminary examination and in advance of trial, by proper motion, raised all the obvious constitutional issues: illegal search and seizure, illegal arrest, and illegal confinement, and by motion sought to suppress the admission of the arc welder and defendant’s alleged confession.” (p. 575.) Further in the opinion it was said: “While we granted a limited review of this case on application for leave to appeal, the advent of the decision of the United States Supreme Court in Jackson v. Denno, . . . mandates our expansion of the scope of review. Under the rule we adopted after Jackson, supra, (see our decision on rehearing in People v. Walker, 374 Mich. 331), we perforce must remand here, at least for a separate determination of the issue of voluntariness. . . .” (pp. 575, 576.) (Emphasis added.) A good discussion on the waiver of the Jackson v. Denno issue may be found in United States v. Brierly, 269 F. Supp. 753 (E. D. Pa. 1967). In view of the federal decisions we are not inclined to dispose of the Jackson v. Denno issue presented on any theory of waiver. In spite of the trial court’s finding, we hold the state has not as a matter of law met the heavy burden cast upon it to show that the appellant intentionally relinquished or abandoned a known right or privilege. In 1956 at the time of the appellant’s trial, Stein v. New York, 346 U. S. 156, 97 L. Ed. 1522, 73 S. Ct. 1077, was the law of the land. Among other things it held due process was not violated by state law under which the question of voluntariness of an accused’s confession is left to a jury for ultimate determination by a general verdict, even though a general verdict of guilty afforded no basis to determine whether the confession issue was decided in the accused’s favor. In 1956 Kansas law was governed by the evidentiary rule set forth in State v. Seward, supra, which is said to support the “Wig-more” or “Orthodox” rule whereby the judge makes a ruling on voluntariness prior to admission into evidence, and the jury considers voluntariness as it affects credibility or weight to be given to the confession. However, the opinion in State v. Seward, supra, does not go into the degree or manner in which evidence is to be received in the collateral proceeding, and it cannot be said with certainty the ruling on voluntariness made by the trial judge in the trial of the appellant in 1956 would have been stricken down as an inadequate hearing prior to the Jackson v. Denno decision. The trial judge in the appellant’s 1956 trial did hold a collateral hearing out of the presence of the jury and made a finding of voluntariness. (This is argued by the state to uphold the trial court’s decision.) A collateral hearing almost identical to that given the appellant in 1956 was first stricken down by the Kansas Supreme Court in State v. Milow, supra, in 1967. In Milow the state in its brief argued and contended that such hearing met the necessary requirements of Jackson v. Denno on voluntariness. In Milow this court specifically ruled for the first time that the trial court must hear more than the state’s evidence in determining voluntariness. At the hearing granted the appellant in his 1507 proceeding there was no testimony, nor was any offered, which comes close to meeting the requirements o£ waiver set forth in Fay v. Noia, supra, and Johnson v. Zerbst, supra. There has been no testimony or evidence that the specific issue concerning the lack of a Jackson v. Denno hearing was raised during the trial, in the motion for a new trial, or if discussed with the appellant. In other words, there is no showing that the appellant was informed of the issue—that he had been denied due process of law in the 1956 trial—and it cannot, therefore, be said he made an “intentional relinquishment or abandonment of a known right or privilege,” (p. 464) as required by Johnson v. Zerbst, supra. Courts indulge every reasonable presumption against waiver of fundamental constitutional rights. It cannot be overlooked that at the time of the appellant’s trial in 1956 the state of Kansas had no procedures or laws in existence by which the appellant, an indigent, could have had the assistance of counsel on appeal, or a copy of the transcript of the trial. Another facet of this case parallels Fay v. Noia, supra. On November 14, 1956, the appellant was tried for first degree murder in Wichita, Kansas. Following the trial and before argument on the motion for a new trial, the rumor spread that eleven members of the jury voted for the death penalty on the first ballot; ten on the second ballot; and on the third ballot all jurors voted in favor of the life sentence. This was confirmed by notes made on the jury sheet of the appellant’s trial counsel. In the November 28, 1956, issue of the Wichita Reacon newspaper, an article appeared which stated: “An all male jury found Barnes guilty of first degree murder November 20 after deliberating but four hours. “The hangman’s noose hung over Barnes with eleven men on the twelve man jury voting in favor of the death penalty for the first half hour. “The second ballot shówed ten men in favor of the death penalty.” This must have been known to the appellant although the record does not disclose that he did. The record does not disclose the reasons for the appellant’s failure to take an appeal. The existence of exceptional circumstances in such a situation is illustrated in Fay v. Noia, supra, where the defendant had intentionally chosen not to appeal, but the waiver was held not to be binding on him. In the opinion the court there said: “The application of the standard we have adumbrated to the facts of the instant case is not difficult. Under no reasonable view can the State’s version of Noia’s reason for not appealing support an inference of deliberate bypassing of the state court system. For Noia to have appealed in 1942 would have been to run a substantial risk of electrocution. His was the grisly choice whether to sit content with life imprisonment or to travel the uncertain avenue of appeal which, if successful, might well have led to a retrial and death sentence. See, e. g., Palko v. Connecticut, 302 U. S. 319. He declined to play Russian roulette in this fashion. This was a choice by Noia not to appeal, but under the circumstances it cannot realistically be deemed a merely tactical or strategic litigation step, or in any way a deliberate circumvention of state procedures. This is not to say that in every case where a heavier penalty, even the death penalty, is a risk incurred by taking an appeal or otherwise foregoing a procedural right, waiver as we have defined it cannot be found. Each case must stand on its facts. In the instant case, the language of the judge in sentencing Noia, see note 3, supra, made the risk that Noia, if re-convicted, would be sentenced to death, palpable and indeed unusually acute.” (pp. 439, 440.) Noia had stated that while he was aware of his right to appeal, he did not appeal because he did not wish to saddle his family with an additional financial burden and he had no funds of his own. The gist of his lawyer’s testimony was that Noia was also motivated not to appeal by fear that if successful he might get the death sentence if convicted on a retrial. The trial judge, not bound to accept the jury’s recommendation of a life sentence, had said when sentencing him, “ 1 have thought seriously about rejecting the recommendation of the jury in your case, Noia, because I feel that if the jury knew who you were and what you were and your background as a robber, they would not have made a recommendation. But you have got a good lawyer, that is my wife. The last thing she told me this morning is to give you a chance.’” (Fay v. Noia, supra, footnote 3, p. 397.) If the belief that the jury almost hanged the appellant entered into a decision not to appeal, exceptional circumstances exist under the doctrine of Fay v. Noia, supra, and waiver cannot be found. But the appellant’s choice was more tragic than Noia’s, because the record discloses, according to members of the jury who were recently found and questioned, the rumor was totally untrue. While the question of the voluntariness of the appellant’s confession has not reliably been determined, the point is inextricably interwoven with the question of waiver. For if any part of the appellant’s determination not to appeal was based upon the fear that his wife, though not involved, would be drawn into the second trial as a co-defendant—a circumstance which the appellant contends so completely destroyed his ability to maintain his constitutional right against self-incrimination, when presented with the proposition by Detective Hannon that if the appellant did not confess his wife would be retained in custody on the first degree murder warrant— a voluntary waiver by the appellant of his right to a review of constitutional errors must be ruled out in this postconviction proceeding. Under all of the facts and circumstances presented by the record in the instant case exceptional circumstances are shown to exist which meet the requirement of Rule No. 121 (c) (3), and upon review of the constitutional issues presented in this proceeding we hold the appellant is entitled to relief. We now turn to a consideration of the disposition of this case. The provisions of K. S. A. 60-1507 specifically authorize the appellate court to grant the appellant a new trial, upon finding that the judgment in a criminal case is open to collateral attack or that, there has been a denial or infringement of constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack. The disposition of the case, therefore, in accordance with the opinion and directions in State v. Milow, supra, is indicated. At this point the appellant has not yet had an adequate evidentiary hearing productive of reliable results, to which he is constitutionally entitled, concerning the voluntariness of his confession. Accordingly, the case is remanded to the sentencing court with directions to proceed in accordance with the decision in State v. Milow, supra.

The opinion of the court was delivered by Fontron, J.: The defendant was charged with second degree burglary and larceny. On January 25, 1968, he appeared before the district court of Sedgwick County, Kansas, with retained counsel, and entered a plea of guilty to both charges. He was thereupon sentenced to the Kansas State Industrial Reformatory for terms of five to ten years for burglary and one to five years on larceny, the sentences to run concurrently. This appeal followed. On appeal the defendant contends the trial court erred in the following particulars: (1) Failing to ascertain adequately whether his plea was entered voluntarily and with understanding of its consequences; (2) failing to ascertain whether there was a factual basis for his plea of guilty; (3) accepting the plea and imposing sentence thereon when the crime was the subject of a controlling federal statute. We shall consider the first two contentions together pausing first to observe, parenthetically, that Reid does not argue that his guilty plea was entered involuntarily or induced by improper means. The record reflects that the following proceedings were had at the time of arraignment, plea and sentence: “The Court: Case No. CR 4765, The State of Kansas vs. Eulysess M. Reid, R-e-i-d. “The Defendant: (Standing before the Court.) “The Court: Is that your correct name? “The Defendant: Yes. “The Court: And Mr. Watson is your attorney? “The Defendant: Yes. “The Court: You waive arraignment? “Mr. Watson: We waive arraignment and waive a jury trial, Your Honor. “The Court: How does your client desire to plead? “Mr. Watson: My client desires to plead guilty at this time, Your Honor. “The Court: Mr. Reid, you are charged with, on the 28th day of December of last year, entering in the nighttime a boxcar of the Santa Fe Railway located up at approximately 3333 North Mead here in the City of Wichita and stealing sugar from the car. “How do you plead, guilty or not guilty? “The Defendant: Guilty. “The Court: Pleading guilty because you are guilty? “The Defendant: Yes. “The Court: In other words, you did actually break into the car and in the night time take the sugar? “The Defendant: Yes. “The Court: How old are. you? “The Defendant: Twenty-two. “The Court: Twenty-two? “The Defendant: Yes. “The Court: Do you know of any legal reason why the Court should not pronounce sentence at this time? “Mr. Watson: There is none, Your Honor. “The Court: It is the sentence of this Court that you be taken from this courtroom to the Sedgwick County jail, there to be held by the Sheriff until such time as he can transport you to the Kansas Industrial Reformatory at Hutchinson, there to serve not less than five (5) nor more than ten (10) years on the burglary and not less than one (1) nor more than five (5) years on the larceny, the two sentences to run concurrently. “Mr. Watson: If it please the Court, could we cause the sentence imposed to run with the possible parole revocation and — “The Court: From where? “Mr. Watson: —and perhaps the Court should sentence him to Lansing. “He doesn’t want to go to Lansing. “The Court: I will sentence him to Hutchinson and let it run concurrently with any parole revocation he may have. “Is this an institutional parole? “Mr. Watson: Institutional parole. “The Court: From Hutchinson. “The Defendant: Sir, what happened, I was sixteen when I got this charge, and I went to Hutchinson, and consequently I got—there was a mixup, too—I was sentenced to Lansing. Then they sent me to Hutchinson. And I got to Hutchinson and then they sent me to Lansing. I used to be the youngest inmate at Lansing. I don’t want to go through that again. I would like to go to Hutchinson if possible. “The Court: I am going to send you to Hutchinson. If the Board of Administration decides to transfer you to Lansing, I can’t help that. “Mr Watson: For the record, I would like it to be put on the record you were aware of the fact that I was not going to make an application for parole on this sentence and plea, is that correct? “The Defendant: Yes.” Although the dialogue between the court on one hand, and the accused and his counsel on the other, was not as extended as some we have examined, and may be more cursory than we might commend, still we cannot say the brevity of the proceedings is so extreme as to impugn the validity of the defendant’s plea of guilt. There are a number of reasons which compel this conclusion. It is obvious that Mr. Reid was thoroughly advised as to the offenses with which he was charged and, when queried in detail about them, admitted the crimes. The court had every reason to believe that the defendant’s personal plea of guilty was entered because he was, in fact, guilty. In other words there was a factual basis for the court’s acceptance of the defendant’s plea of guilty. In this respect the circumstances are quite similar to those found in Sharp v. State, 203 Kan. 937, 457 P. 2d 14; Mathues v. State, 204 Kan. 204, 460 P. 2d 545: and Griffin v. State, 204 Kan. 340, 461 P. 2d 550. While it is true the record reveals no advice by the court as to the effect and meaning of a guilty plea, or as to the defendant’s right to trial by jury, the defendant was accompanied throughout the arraignment and sentencing procedures by his retained counsel. It is fair to presume that counsel, whose competency is not questioned, had adequately informed the defendant as to his legal rights and of the effect and consequences of a guilty plea. (Toland v. State, 200 Kan. 184, 186, 434 P. 2d 814.) It is significant, in this connection, that defense counsel expressly waived a jury trial on behalf of and without objection by his client. Moreover, at the time of allocution, when the court inquired if there was any legal reason why sentence should not be pronounced, defendant’s counsel replied, with no remonstrance from his client, “There is none, Your Honor.” In Walsh v. State, 195 Kan. 527, 407 P. 2d 516, this court spoke in words we deem appropriate here: “The allocution affords an accused the chance to present before sentence, either in person or through his counsel, whatever grounds he claims may exist for impugning the integrity of the proceedings. No inference can be drawn from the record in this case that either the accused or his counsel, whose competency is not here in question, ever proposed any reason whatsoever why sen tence should not be pronounced in accordance with the plaintiff’s plea of guilty.” (p. 529.) The defendant was not exactly a novice in the area of criminal procedure when he appeared in court for arraignment. On at least one prior occasion he had pleaded guilty to identical charges and had been sentenced to the reformatory. Thus he must have been fully aware, from bitter personal experience, of the meaning of his guilty plea and of the consequences which would flow therefrom. We do not suggest that the procedure followed in this case be adopted as a model for future use. Nonetheless we consider it sufficient, under the circumstances shown here, to guard against substantial prejudice to the defendant’s legal rights. The final point raised by the defendant, i. e., that error was committed in accepting his plea because of a controlling federal statute, is strictly without merit. We assume the statute to which the defendant refers is 18 U. S. C. § 659 which makes it a federal offense to steal from any railroad car any goods or chattels which are part of or which constitute an interstate shipment of freight, express or other property. This statute, however, contains the following specific provision: “A judgment of conviction or acquittal on the merits under the laws of any State shall be a bar to any prosecution under this section for the same act or acts. Nothing contained in this section shall be construed as indicating an intent on the part of Congress to occupy the field in which provisions of this section operate to the exclusion of State laws on the same subject matter, nor shall any provision of this section be construed as invalidating any provision of State law unless such provision is inconsistent with any of the purposes of this section or any provision thereof.” We find no errors to the prejudice of the defendant’s substantial rights and the judgment of the trial court is affirmed.

The opinion of the court was delivered by Schroeder, J.: This is an action by the plaintiff to recover permanent and total disability benefits of $6,500 under a group insurance policy issued by the Aetna Life Insurance Company (defendant-appellee). The case was submitted to a jury which returned a verdict in favor of the defendant Aetna. Appeal has been duly perfected by the plaintiff. The only issue presented is whether the trial court applied the proper rule of law to determine if the appellant was totally disabled within the meaning of the group insurance policy issued by Aetna. Willis D. Woods (plaintiff-appellant) is forty-two years of age with a formal education consisting of the first seven grades and two weeks of the eighth grade. In 1961 he received a certificate equivalent to a high school diploma. Prior to military service his occupation consisted of hauling freight, service station work, and a few months as a welder’s tacker. In 1945 he entered the Army and worked as a supply clerk. He was released from active duty with the Army in 1951 as a Corporal, but joined the Army Reserve in 1954 and attained the rank of Staff Sergeant. In 1951 the appellant went to work for the Boeing Company at Wichita, Kansas. He worked regularly for Boeing until August, 1963, except for two occasions when he was hospitalized for approximately one month on each occasion for a back condition diagnosed as rheumatoid spondylitis, also known as Marie-Striimpell’s arthritis. X-ray treatments arrested the disease, but it was necessary for him to return to the hospital for treatments. His last date of employment with Boeing was August 13, 1963, after which he was hospitalized from August 23, 1963, to October 11, 1963. Upon release Boeing placed him on the inactive payroll because of his lifting restrictions of not over thirty to thirty-five pounds, which were later reduced to lifting not more than ten to fifteen pounds. At all times material hereto the appellant was subject to the provisions of a disability insurance policy issued by Aetna providing for a lump sum benefit of $6,500 in the event of total disability. Pursuant to the appellant’s application for workmen’s compensation benefits, he was examined by an orthopedic surgeon, Dr. Robert A. Rawcliffe, Jr., in February, 1964, who stated in an opinion that he then thought claimant was disabled from doing any but light desk-type work. His disability was then rated about thirty-five to forty percent, and he was awarded maximum compensation payments of $42 weekly payable for 415 weeks. Dr. Rawcliffe again examined the appellant as of June 24, 1967, and stated: “I took a history from plaintiff during my 1967 examination of him during which he told me he had gotten worse since my 1964 examination. During my 1967 examination, however, I found no evidence of muscle atrophy, but that plaintiff did not exert normal strength during the test for muscle power in the upper extremities. Since he had no muscle atrophy, there is no reason he could not exert normal strength unless he did not want to do it. Plaintiff also registered inconsistencies in leg raising tests designed to ascertain nerve irritation, when the results of the different tests should have been consistent. Plaintiff also claimed to have a sensory loss in the lower extremities, but I could find no medical basis for it. Incidentally, arthritis does not usually produce any change in sensation in the extremities in any event. These findings during my examination suggested to me a deliberate attempt on the part of plaintiff to exaggerate his disability. “It is my medical conclusion that 'there are a number of Findings on the physical examination which suggest a deliberate attempt on the part of the patient to exaggerate his disability. The finding of decrease in sensation cannot be explained on the basis of rheumatoid arthritis. The patient very obviously does not attempt to exert normal muscle power when I am testing for muscle strength, and this suggests a deliberate attempt to exaggerate his disability. On the basis of these findings, it is my impression that this patient very definitely does not have total disability. In other words, it is my opinion that this person is not totally and permanently disabled according to the definition given as being “unable to engage in employment or occupation for compensation or profit.” I do believe that the patient has some partial disability, but I am not convinced that this would keep him from engaging in any type of occupation. Furthermore, there is some evidence that the patient deliberately exaggerates his symptoms; and to this degree, at least, he is deliberately malingering.’ . . .” At the time of trial Dr. Rawcliffe was of the opinion the appellant could do heavier work than he had concluded in 1964. On July 6, 1964, the appellant was examined in behalf of the Social Security Administration by an orthopedic surgeon, Dr. Eugene E. Kaufman of Wichita, Kansas, for the purpose of evaluating him for social security benefits. Pursuant to the findings and examinations of Dr. Kaufman the claimant was granted compensation for himself, his wife and four children totaling $296.40 monthly. Subsequent to the appellant’s release from the hospital on October 11, 1963, Boeing on at least two occasions requested a status report from the appellant in order to maintain him on Boeing’s inactive payroll. Status reports were requested in a letter dated July 6, 1965, indicating that the appellant had not contacted Boeing since April, 1964, and in another letter dated October 10, 1966, indicating that Boeing had not heard from him since July, 1965. In addition to examinations by Dr. Kaufman on July 6, 1964, and June 17, 1965, and the examinations of Dr. Rawcliffe, the appellant was examined by Dr. Gerald E. Cronk of Tulsa, Oklahoma, Dr. Charles Phillip Rhodes and Dr. Jack E. Moseley, both of Wichita, Kansas. All of the medical examiners concurred with the diagnosis of Marie-Striimpell’s arthritis of the sacroiliac, also known as rheumatoid spondylitis; that the appellant could not do the heavy type of lifting work he was previously doing at his job with the Boeing Company, but that he could do some type of light work and obtain gainful employment. The record discloses Dr. Moseley’s notes which show that on March 14, 1966, the appellant told the doctor he was working twelve to fourteen hours a day that Boeing did not know about. Dr. Kaufman, who examined the appellant in 1964 and 1965, stated the appellant could lift more than fifteen pounds to which Boeing restricted him, and there was no reason why he could not do light work. Dr. Charles Phillip Rhodes, a specialist in internal medicine, who examined the appellant in 1967, testified the appellant’s condition of rheumatoid spondylitis was arrested or inactive, and that the appellant was certainly not totally disabled for many types of work. He also concluded the appellant was “probably malingering.” Dr. Cronk, who examined the appellant in 1964, stated the appellant certainly could be gainfully employed at some type of work and would make a good candidate for vocational rehabilitation. A doctor’s certification dated December 10, 1963, from L. G. Schulze of the Veterans Administration discloses the appellant was released by the doctor “as able to work” on October 14, 1963. The appellant is currently receiving more from workmen’s compensation and social security than he has ever earned at employment in his lifetime, according to his own testimony. He presently owns five lots in Ketchum, Oklahoma, and raises thirty-five to forty rabbits as a hobby. He has averaged a dozen or more hunting trips during the past three hunting seasons. He fishes and is able to start the thirty horsepower, manual start motor, on his sixteen-foot boat. He is able to work in his garden, mow his yard, and do repair jobs on his house. He admits there are all kinds of jobs available that he has not even explored, investigated or attempted to undertake. He has made no inquiry about becoming a welder, for which he has had some training, a bailiff, a salesman servicing racks in drug stores, or about undertaking similar jobs. He openly admits he could probably do such jobs as being a night watchman where he could sit and walk around at his leisure. The appellant’s real complaint is that he could not return to the identical job he had at Boeing, and he will not work for less money. After being fully instructed the case was submitted to the jury, and it returned a verdict for the Aetna Life Insurance Company. The issue to be determined on this appeal is focused in the following instruction submitted to the jury: “You are instructed that the Boeing Company group policy with defendant provides a lump sum benefit of $6,500.00 in the event an employee, such as Willis Woods, proves that he has become: “ ‘. . . totally disabled by illness or injury and that the disability has existed continuously for a period of six months or more and will presumably prevent the employee, for life, from engaging in employment or occupation for compensation or profit.’ “You are instructed that a total disability is one which results from an illness or injury and which makes it impossible for a person to follow continuously a substantially gainful occupation at any kind of work for which he is competent or qualified, physically and mentally, or for which he could qualify himself by a reasonable amount of study and training. Total disability, within the meaning of insurance policies, does not necessarily mean utter helplessness, nor inability to perform any task, or even in some cases, usual tasks for a limited period. An insured need not be absolutely helpless before he is entitled to the benefits for total and continuous disability. It is only necessary that the disability render him unable to perform the substantial and material acts of his business or occupation in the usual and customary way. The word ‘continuously’ means with reasonable regularity. It does not preclude periods of disability which are ordinarily incident to activities of persons in generally sound health, for nearly all persons are at times temporarily incapacitated by injuries, or poor health, from carrying on an occupation. A disability is permanent when it is of such a nature that it is reasonably certain it will continue throughout a person’s lifetime.” (Emphasis added.) The provision of the insurance policy in question is correctly set forth in the above instruction. It does not limit the meaning of total disability merely to the inability of the insured to perform the work of “his” former occupation, nor does it mean he must receive the same monetary benefits. This was recognized by the trial court which, after stating the provision of the policy in question, instructed as indicated in the first italicized portion of the above instruction. It is this portion of the instruction to which the appellant objected at the time of trial, and for which he now contends the trial court erred. The appellant relies upon Wolf v. Mutual Benefit Health & Accident Association, 188 Kan. 694, 366 P. 2d 219, contending the meaning of total disability was settled therein once and for all. The language in the Wolf case upon which the appellant relies is as follows: “Total disability, within the meaning of insurance policies, does not necessarily mean utter helplessness, nor inability to perform any task, or even in some cases, usual tasks for a limited period. It has been said, to hold otherwise would be to penalize every effort of the insured person to rehabilitate himself. (Hodgson v. Mutual Benefit H. & A. Ass’n, 153 Kan. 511, 112 P. 2d 121.)” (p. 706.) The appellant contends the court then broadened its interpretation of total disability in the Wolf decision by the following statement: “. . . An insured need not be absolutely helpless before he is entitled to the benefits for total and continuous disability. It is only necessary that the disability render him unable to perform the substantial and material acts of his business or occupation in the usual and customary way. (Pearson v. Prudential Ins. Co., supra [214 La. 220, 36 So. 2d 763].)” (p. 710.) (Emphasis added.) The appellant contends the trial court in the first italicized portion of the instruction quoted interpreted the words “total disability,” as defined in Berry v. United States, 312 U. S. 450, 85 L. Ed. 945, 61 S. Ct. 637. The Berry case was cited in Hodgson v. Mutual Benefit H. & A. Ass’n, 153 Kan. 511, 112 P. 2d 121, with approval, and the definition of “total disability” set forth in the Berry case was quoted with approval in Wolf v. Mutual Benefit Health & Accident Association, supra, at page 707. The appellant argues the Wolf case merely acknowledged the foregoing definition of total and permanent disability in Berry, but refused to follow the broad term “any kind of work,” and required that the disability render the workman unable to perform “his business or occupation.” He contends the requirement provided by the Hodgson and Berry cases of “any kind of work” has now been modified by the Wolf case to “his business or occupation.” The appellant has misconstrued the decision in Wolf by taking the expression in Wolf upon which he relies out of context. Contrary to the situation in the case at bar, there was nothing whatever in the record in Wolf to disclose whether the insured could work at any other occupations which would not require him to be on his feet for long periods of time. Without such evidence before it the court, in determining whether the insured was totally disabled, had only one occupation to refer to—the insured’s occupation at the time the alleged disability occurred. On the facts in Wolf it was natural for the court to refer to “his” occupation, without intending to limit the test for total disability to the ability to perform “his” former business or occupation. This interpretation of the Wolf opinion is apparent when consideration is given to syllabus ¶ 5, where the court defines “total dis ability” as the inability to perform “a” business or occupation, rather than the ability to perform “his” business or occupation. The most significant aspect of the Wolf holding is its reliance upon the definition of “total disability” contained in Berry v. United States, supra. In Berry the United States Supreme Court approved the following instruction which this court quoted in Wolf: “ ‘ “A total disability is any physical or nervous injury which makes it impossible for a person to follow continuously a substantially gainful occupation at any land of work for which he was competent or qualified, physically and mentally, or for which he could qualify himself by a reasonable amount of study and training. . . (p. 707.) (Emphasis added.) The holding of this court in the Wolf case is consistent with its prior holdings in Maresh v. Peoria Life Ins. Co., 133 Kan. 191, 299 Pac. 934; and Fricke v. Mut. Life Ins. Co., 152 Kan. 525, 106 P. 2d 677. The facts in the Fricke case are similar to those in the instant case. Actually the instruction given by the trial court in the instant case, as heretofore quoted, is more advantageous to the appellant than it should have been. The second italicized portion quoted makes reference to “his” business or occupation, thus making it inconsistent with the rest of the instruction. The appellee objected to this portion of the instruction in the trial court, but it was given over objection. We hold the instruction given by the trial court did not prejudice the appellant in the trial of this action. There was abundant evidence to support the jury’s finding that the appellant was not totally disabled within the meaning of the test for total disability consistently applied by this court in such decisions as Fricke and Wolf—that the appellant was not disabled to such an extent that he was prevented from performing any work for compensation, gain or profit. Upon the record presented the jury may well have believed the appellant was not totally disabled, but was in fact a malingerer. Under the circumstances it would have been error for the trial court to take the issue from the jury and direct a verdict for the appellant. (Baker v. Western Casualty & Surety Co., 196 Kan. 345, 411 P. 2d 711; McKinney v. Cochran, 197 Kan. 524, 419 P. 2d 931; and Bingham v. Hillcrest Bowl, Inc., 199 Kan. 40, 427 P. 2d 591.) The judgment of the lower court is affirmed. Fatzer, J., dissenting.