Volume 117 — Missouri Reports

Louis City Circuit Court. — Hon. Jacob Klein, Judge. (1) The land described in the petition is a part of the St. Louis & San Francisco Railway, so inseparably connected therewith that it has no independent value and was therefore included in the assessment made by the state board of equalization. That defendant paid all taxes levied upon its property assessed by the state board is admitted.

— Hon. Thomas H. Bacon, Judge. (1) Instruction number 3 of defendant’s series assumes that plaintiff did not exercise ordinary care, and is therefore erroneous.

— Hon. D. A. DeArmond, Judge. ' (1) The trustee, Keiffer, having made one sale and a deed good on its face to Frank Schanewerk, and said Frank Schanewerk having paid $500 for the same, had not the powers of the trustee or the sheriff acting in his place, ceased and was it not error to refuse the sixth declaration of law! Perry on Trusts [2d Ed], sec. 498 and cases; Lewin on Trusts, page 605, and cases; Wood v. White, 2 Keen 664; Ohnsorg v. Turner, 13 Mo.

— Hon. C. A. Anthony, Judge. (1) The court erred in refusing to give instruction number 1. This bar or island might fairly be considered an accretion in a state of formation’begun prior to United States survey, but continuing to develop until united with the main shore. Jones v. Soulard, 24 How. 41.

Louis City District Court. — Hon. L. B. Valliant, Judge. (1) In interpreting a statute, the whole of it must he considered, and if in one section provisions are introduced which show the sense in which the legislature employed a doubtful phrase used, that sense is. to be adopted in construing such phrase. Every part must be construed in connection with the whole so as to make all parts harmonize.

Habeas Corpus. The petitioner, a negro, charged with being a vagrant, was arrested and brought before J. J. Winscott, a justice of the peace of Salt River township, Audrain county, Missouri. The evidence adduced before the jury summoned for the occasion, supported the charge, and consequently a verdict was returned in accordance with the evidence.

Louis City Circuit Court. — Hon. L. B. Yalliant, Judge. (1) It is a fundamental principle that they who have no mind “ cannot agree in mind” with another, and as this is the essence of a contract, they cannot enter into a contract. Parsons on Contracts [7 Ed.], sec. 383. (2) If a person therefore enters into a contract while deprived of reason, and afterwards recovers his reason, he may repudiate that contract.

Certified from Kansas City Court of Appeals. (1) The requirement of the city charter in question is that “service of the notice shall be made at least six days before the jury shall be impaneled.” (Art. 7, Sec. 2.) Whether the service is had intime does not go to the jurisdiction.

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. (1) The allegation in the petition that ‘ ‘said defendant Warren claims some interest in said premises, the nature of which interest plaintiffs have no knowledge or information, but make the said Warren a party hereto, so if he has any right, title or interest in the said premises, that the court may determine the same as to the court may seem right and proper,” does not state any cause of action against Warren nor show…

Louis City Circuit Court. — Hon. J. E. Witheow, Judge. (1) The circuit court erred in excluding the ordinance provisions set up in the answer. (2) The judgment of the circuit court on the facts in evidence should have been for defendants. The evidence discloses that so far as the plaintiffs are concerned, the city had not for two years prior to the institution of this suit rented out any stands to hucksters in front of plaintiff’s property.

(1) The condemnation in controversy here can be collaterally attacked because the plain and positive provisions of the law were disregarded in the proceedings, in that a lump assessment was made of a tract of which Frederick only owned a part, and his part was not separately assessed.

— Hon. Judge. (1) The constitution pro vides that private property shall not be taken for public use without just compensation, and such provision deprives the order of the county court of any effect as a justification for defendant. (2) The law requires that a relinquishment of this right of way should be obtained, or that commissioners should be appointed and damages assessed and paid before any entry could be made on the land, and neither was done in this case.

The trial court held upon demurrer thereto the following count to an indictment insufficient, to-wit: “And the grand jurors aforesaid, upon their oaths aforesaid, do further present and charge that George E. Taylor, alias J. T. Gash, and ¥m. P. Taylor on the seventh day of February, 1890, at the county of Adair, in the state of Missouri, did falsely, fraudulently and feloniously sell, exchange and deliver, for the consideration of two thousand dollars, to the First National…

— Hon. B. H. Field,. Judge. (1) That the title offered by the sellers, as shown by the abstract as certified by Schueler & Company, under date of March 24, 1888, on page 82 of the abstract, was-not such a good and marketable title as the sellers-were bound by their contract to furnish, see Pomeroy on Contracts, p. 278, sec. 198 to 203. Duckett v. Williamson, 31 Mo. 54; Taylor v. Williams, 45 Mo. 80; Mastin v. Grimes, 88 Mo. 478; Hymers v. Branch, 6 Mo.

(1) The plaintiff should have been require to produce the family Bible in which the date of his birth was recorded. That was the best evidence. (2) The court erred in permitting the witness Stanley to testify as to speed of the train. He expressly admitted that ho knew nothing about such matters, and was then permitted to guess at it.

Habeas Corpus. (1) This is not a proceeding to determine the question of the .guardianship of this child, but one touching hór custody, and is prosecuted before this, court under the express authority of the statute. Revised Statutes, 1889, sec. 5415; Be Laura Doyle, 16 Mo. App. 159. Were it a proceeding to adjudge the guardianship of the child, the probate court alone, and not the circuit court, as is contended by respondent’s counsel, would have the right to determine it.

Louis City Circuit Court. — Hon-Daniel Dillon, Judge. By this equitable proceeding, instituted March 4,. 1886, the plaintiff sought relief in equity as follows: To establish as against the defendant a trust in an undivided one-fifteenth of a tract of land in the city of St.' Louis, known as United States survey number 2500; the cancellation of certain deeds obtained as alleged by defendant of one Darby through fraud and a gross breach of trust, while acting as the trusted…

— Hon. Joseph Cravens, Judge. (1) The indictment is in the language and form-approved in this state, and clearly charges the crime-of which defendant stands convicted. Revised Statutes 1889, sec. 3535. (2) The instructions, when read together, correctly declare the law applicable to the-case as made by the testimony to the jury. They are exceedingly favorable to the defendant.

— Hon. J. R. Edwards, Judge. * (I) Error was committed by the trial court in permitting Jarrett Fowler, jointly indicted with the defendant, but not put upon his trial with him, to testify on behalf of the state and against the defendant. Revised Statutes, 1889, see. 4217; 1 Bishop on Criminal Prosecutions, sec. 1020-, State v. Chyo Chiagk, 92 Mo. 396; State v. Clump, 16 Mo. 383; State v. Underwood, 57 Mo. 40; State v. Walker, 98 Mo. 103.

— Hon. O. H. S. Goodman, Judge. The indictment charges the defendant with the murder of Nettie Hall in Linn county on the nineteenth of January, 1889, and this cause comes to this court for the second time. See 100 Mo. 628, where a reversal of the judgment occurred because of error in some of the instructions.

(1) Instruction number 2 given at the instance of respondent is erroneous, for the reason that it limits the right of the interpleader, Carlisle, “to take and receive a note, and have it secured by deed of trust on the property of Eugene White for any Iona fide debt or liability of said White to him” (Carlisle).

— Hon. E. M. Hughes, Judge. (1) The indictment charges the defendant with unlawfully and feloniously obtaining a negotiable promissory note with the intent to cheat and defraud. Sec. 3826, Revised Statutes, 1889. (2) The form prescribed by the statute being carefully followed, and the material requisites alleged, the indictment is sufficient.

— Hon. John E. Ryland, Judge. The indictment clearly charges the crime in language and form often approved by this court, and is not subject ,to the criticism suggested by appellant’s motion to quash, which was properly overruled.

— Hon. Joseph Cravens, Judge. The defendant should have been arraigned- after the withdrawal of his plea of not guilty, and overruling the demurrer. 'State v. Beeves, 97 Mo. 668. The record in this case fails to show that defendant was arraigned or entered a plea to the indictment at any time during either trial of this case. Under the repeated ruling of this court, this is essential, and the cause must be reversed and remanded.

— Hon. E. L. Edwards, Judge. The court committed error in giving the first instruction asked by the state.

.Appeal from Lafayette Criminal Gowrt. — Hon. John E. ! Ryland, Judge. This court can consider nothing in this case except the record proper, on which the judgment should be affirmed. Neither the motion for new trial, nor any exceptions to the overruling of same, are contained in, referred to, or called for, in the bill of exceptions.

— Hon. Joseph Cravens, Judge. (1) The instructions covered the whole case and properly declared the law. (2) No reversible. error was committed by the prosecuting attorney in his argument to the jury.. (3) The objections to the juror, Johnson, were not made in time nor were the objections to him properly saved. State v. Brewer, 109 Mo. 652. (4) The court properly admitted the threats of Brown, the associate of the defendant in the crime.

Louis Criminal Court. — Hon. J. C. Normile, Judge. (1) The testimony of the witness, Mrs. Harmon, as to her conversation with officer Williams, to the effect that her house had been broken into, and that she thought the man. had gone down the back way, was clearly erroneously admitted, as well as her statement that the window could be opened by a stick or a knife, from the outside, as she had once opened it in that way, herself.

JError - to Henry Circuit Court. — Hon. Jas. H. Lay, Judge. (1) This right of action is both penal and compensatory, and minority of deceased has nothing to do with the amount of damages to be recovered. Phillpott v. Railroad, 85 Mo. 164. (2) On the question of an established custom of train men, in contradiction of positive rule. Barry v. Railroad, 98 Mo. 62. (3) On the question of contributory negligence. Wagner v. Railroad, 97 Mo. 512, and cases cited.

— Hon. J. H. Slover, Judge. Plaintiff had judgment on the circuit, and defendant appealed at a subsequent term, after his motion to set aside the judgment (filed more than a month after the latter was rendered) had been overruled. That motion was as follows, viz: ‘ ‘Now comes the defendant and moves the court to set aside the judgment rendered at the present term of this court, in the above entitled cause, and as the grounds of its motion states: “1.

<p>X. Conveyances: evidence. • Where several deeds are made at the same time and refer to each for boundaries of the land eonveyed, they will be read as one instrument.</p> <p>2. -: distances: monuments. Distances mentioned in a conveyance will yield to monuments, and this is true where the calls are for boundaries of adjoining owners.</p>

— Hon. R. H. Field, Judge. (1) The court should not have allowed the questions, asked by the city, of witness Hyer to be asked or answered. He was not shown in any way to be qualified to express his opinion. Lewis on Eminent Domain, sec. 437; Railroad v. Vance, 115 Pa. St. 325.

— Hon. Thomas H. Bacon, Judge. (1) The court erred in the admission of the certified copy of the deed of trust mentioned. No sufficient foundation was laid for its admission. Plaintiffs simply testified that the original was not in his possession or under his control. It does not appear that plaintiffs made any effort to get the original. West v. West, 75 Mo. 204. (2) Fraud must be proved, and must not be presumed.

<p>'Deed, Delivery of. A grantor in the presence of his son D. handed to his wife a deed for land worth about $7,500, saying “Here is D.’s deed. I want you to take it and take care of it for him.” D. also expressed his willingness to accept the conveyance. Held, that the wife having taken possession of the deed, there was a valid delivery, though she did not give it to the grantee until after the grantor’s death. (Sneathen v. Sneathen, 104 Mo. 209, followed.)</p>

Certified from St. Louis Court of Appeals. This case was certified from the St. Louis court of appeals upon a division of opinion in that court. The opinion of Judge Biggs and the dissenting opinion of Judge Rombaube are set out in this report and the dissenting opinion approved as properly declaring the law. (1) The trial court should have sustained the motion to make the petition more definite and certain.

<p>1. Religious Societies: property rights: jurisdiction op the courts. Civil courts may not properly interfere with church management so far as concerns the spiritual discipline of the members; hut where rights to property are involved, the courts may determine such rights.</p> <p>2. -: -: -. In the ascertainment of rights of property devoted to church purposes, the courts will give effect to the usages- and regulations of the church itself, if not inconsistent with the-constitution and laws of the land.'</p>

— Hon. J. L. Thomas, Judge. (1) All of the deeds offered in evidence by the plaintiff, if supported at all, were supported by the register of lands’ deed for delinquent taxes, which being void on its face, could not operate to pass a title. Moore v. Harris, 91 Mo. 616; Large v. Fisher, 49 Mo. 306.

— Hon. Joseph Cbavens, Judge. (1) Even upon the hypothesis that the mortgage by J. D. and Mary Shields to Kunkel had not been satisfied or fully paid, the evidence, clearly tending to prove at least a partial payment, entitled defendants, under the pleadings, to an ascertainment of the balance due, and administration of their rights by suitable directions and rulings.

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. (1) Defendant’s answer does not state facts sufficient to constitute a defense to the notes sued on, and the proof is not broader than the answer. (2) It requires the same character of proof on defendant’s part to sustain his defense here as it would to maintain an action to recover back money actually paid, had he paid the $5,000 in cash instead of giving the notes sued on.

— Hon. R. H. Field, Judge. (1) The deed of trust of March 10,1888, was not well acknowledged, and the record thereof was not constructive notice to Crawford when latter took his leases; Laws, 1883, p. 20; Huse v. Haines, 104 Mo. 103; 1 Revised Statutes, 1879, secs. 681, 743, 672; Hughes v. Morris, 19 S. W. Rep. 481; Owen v. Baker, 101 Mo. 407; Agan v. Shannon, 103 Mo. 661; Hughes v. McDivitt, 102 Mo. 77; Wilson v. Quigley, 107 Mo. 100; 1 American and English Encyclopedia of…

— Hon. B. E! Turner, Judge. (1) The assessments under which the sale was made must have been against the record owner or the proceedings would be void. Abbott v. Lindenbower, 42 Mo. 162; Gaines v. Fender, 82 Mo. 497; State exrel. v. ■Bailroad, 82 Mo. 683; Hubbard v. Gilpin, 57 Mo. 441.

— Hon. J. M. Sandusky, Judge. (1) The commissioners having determined that these defendants were each equally entitled to a one-sixth interest in the award, it was error for the court to render judgment in favor of defendant, Anderson Elliott, for the full value of the lots as found by the jury. Revised Statutes, 1889, sec. 2736; Lewis on Eminent Domain, sec. 515.

— Hon. J. W. Henry, Judge. (1) No sale was effected by the payment of $500' earnest money. Mastín v. Grimes, 88 Mo. 478; Ramsey v. West, 31 Mo. App. 676; Kelly v. Thuey, 102 Mo. 522. (2) Plaintiff varied from his authority, and the contract he made he was not authorized to make. First. He cannot recover here as upon a quantum meruit. Fgerman v. Cemetery Ass’n, 61 Mo. 489; Lewis v. Slack, 27 Mo. App. 119; Davis v. Brown, 67 Mo. 313;. Halpen v. Maurey, 33 Mo.

— Hon. Andrew Ellison, Judge. (1) The evidence in the case was clear, direct and •conclusive that the defendant’s intestate was indebted to the plaintiff from the year 1863, to the time of his, said James W. Wells’, death.

Louis Criminal Court. — Hon. J. C. Normile, Judge. (1) The court erred in sustaining the state’s .challenge to juror Alterange on the sole ground that” he could not read and write the English language. Constitution, art. 2, sec. 28; Nolen v. State, 9 Tex. App. 419; Trinidad v. Simpson, 10 Cent. L. J. 149. (2) The court erred in overruling defendant’s challenge to juror Charles Scott. State- v. Brooks, 92 Mo. 542; State v. Culler, 82 Mo. 623; State v. Bryant, 93 Mo. 279.

— Hon. E. M. Hughes, Judge. On the first day of November defendant’s appeal was allowed, and he was given forty days in which to file his bill of exceptions, which time expired on the tenth day of December, 1890.

<p>1. Criminal Law: abducting female under eighteen years of age: instructions. A series of instructions on the trial of defendant for taMng away a female under the age of eighteen years for the purpose of concubinage, approved.</p> <p>2. Parol Evidence: contents of a record. Parol evidence is inadmissible to show the contents of a court record where the record itself is in existence.</p> <p>3. Practice: evidence : presumption on appeal. Where evidence is offered out of time and is excluded by the court, it will be presumed on appeal to have been excluded because so unseasonably offered.</p> <p>4. Supreme Court Practice: weighing evidence. The supreme court will not undertake to determine the weight of the evidence, and. whether a conviction is sustained thereby or not.</p>

— Hon. C. A. Anthony, Judge. • The defendant killed Patrick H. Thompson by heating him with his fist and kicking him to death.

— Hon. J. W. Woe-ford, Judge, (1) The court erred in refusing the fifth instruction asked by the defendant. The burden is upon the state to prove, beyond a reasonable doubt, all essential ingredients of the offense charged in the indictment.

— Hon. C. H. S. Goodman, Judge. , Section 4622 of Revised Statutes,1889, under which defendant is indicted is unconstitutional and void, for the reason that it compels defendant to furnish evidence tending to convict himself. State ex rel. v. Simmons Hardware Co., 109 Mo. 118; Const, art. 2, sec. 33; Amendment to Const.

— Hon. Joseph Cravens, Judge. The alibi established the good character of the defendant, as proved, and the contradictory statements of the prosecuting witness require a reversal of the-judgment. (1) The indictment is sufficient. State v. Meinhart, 73 Mo. 562; McComas v. State, 11 Mo. 117. (2) The supreme court has exclusive appellate jurisdiction in felony cases (Constitution, art. 6, sec. 12, and amendments relative to courts of appeals, sec. 5), and this is a felony case.

<p>Criminal Practice: dependant and his wife as witnesses: instruction. An instruction., on a criminal trial, that defendant and his wife are competent witnesses for the defendant and that the jury should not discard their testimony for the reason alone that one is defendant on trial and the other is his wife, but such facts may be considered by the jury in determining the credit to be given to their ' respective testimony, is erroneous in that it' tells the jury by implication to disregard defendant’s and his wife’s testimony on some ground, but not alone because he is the defendant on trial or because she is his wife. (State v. Austin, 113 Mo. 538 followed.)</p>

— Hon. W. M. Robinson, Judge. (1) The conversation between the prosecuting witness and Mrs. Swartz in relation to what occurred at the time the rape was charged to have been committed was competent as a part of the res gestee. Brownell v. Railroad, 47 Mo. 239; State v. Sloan, 47 Mo. 611; H'arriman v. Stowe, 57 Mo. -96; Leahey v. Railroad, 97 Mo. 165. The giving of instructions which are misleading is error.

— Hon. J. E. Hale, Judge. (1) The court committed error in sustaining the demurrer of the defendants, Livingston and Livesay. Even though the indictment was fatally defective, yet this could not serve to discharge or relieve the sureties.

— Hon. G-. D. Burgess, Judge. (1) The court erred in excluding the question asked Johnson Burnett on cross-examination as to what he said to Bates Johnson at the barn (Brown being present) immediately before Johnson and Brown left the barn. (2) There was no evidence to show that defendant Baptiste was present, aiding and abetting, the homicide.

— J. C. Lampson, Judge. (1) The indictment does not state of what the cheat, the .fraud, the trick, the deception, the false and fraudulent representations and the bogus instrument of writing consisted, and does not furnish the accused the nature and cause of the accusation against him. It is a sacred right of the accused that he may know from the indictment of what he is charged and be prepared to meet the exact charge presented against him.

Appeal .from Montgomery Circuit Court. — Hon. E. M. Hughes, Judge. (1) The motions to quash and in arrest should have been sustained. It is difficult to determine whether it was intended to charge defendant under section 3654 or 3780 or 3826 of the Revised Statutes of 1889. This case falls within State v. Terry, 109 Mo. 601; see, also, State v. Porter, 75 Mo. 171.

— Hon. J. E.Ryland, Judge. The defendant, a negro, was eonvieted of murder in the first degree, the charge being that he killed Johanna Sehollman, a white girl, by stabbing her with a knife. In substance, the salient facts developed at the trial are these: The deceased was employed as a domestic in the family of Mayor Stevens, of Sedalia. The defendant was also in the employ of Mayor Stevens, and slept in a room at the barn.

— Hon. T-. H. Bacon, Judge. (1) The court erred in refusing the defendant a continuance. He had shown due diligence and the testimony was material to his defense, and it was a clear abuse of the trial court’s discretionary power and should not be upheld nor indorsed.