Volume 136 — Missouri Reports

— Hon. John A. Hookah ay, Judge. The assault attempted to be charged in this case, being a felony, it was indispensable that the indictment should charge that the act, to wit, the assault, was done with a felonious intent, which it fails to do, hence is fatally defective. State v. Wood, 124 Mo. 412; State v. Fairlamb, 121 Mo. 137; State v. Clayton, 100 Mo. 516; State v. Merrill, 97 Mo. 105; State v. Fmerich, 87 Mo. 110; 2 Bishop, Crim. Proc., secs. 79, 651, 653.

Louis City Circuit Court. — Hon. D. D., Fisher, Judge, (1) This court upon this appeal will only consider-the correctness of the grounds specified by the trial judge in sustaining the motion for a new trial. If they are unsound, the court will reverse and direct the trial court to enter up judgment on the verdict. Millar v. Madison Car Co., 31 S. W. Rep. 575; Candee v. Bail-road, 31 S. W. Rep. 1032. (2) There was no improper-admission of testimony offered by the plaintiff.

Louis Criminal Court. — Hon. H. L. Edmunds, Judge. (1) The indictment is in correct form and no error whatever appears in the record proper. Sec. 3489, R. S. 1889. (2) The instructions given were correct expositions of the law of the case, were in the most approved form and fully covered all the law of the case. (3) The case was, as is shown by the record, well tried, and no error committed by the court in the least prejudicial to the accused.

— Hon. D. P. Stratton, Judge. (1) The court erred in refusing to sustain either, of defendant’s applications for continuance. The witness whose testimony was sought to he obtained was a nonresident of the state and beyond the jurisdiction of the court. His immediate whereabouts could not be ascertained by defendant in the brief time allowed him to prepare for trial. The materiality is shown both by the applications and the testimony in the cause.

<p>Criminal Practice: appeal: record proper. Where defendant saved no exception to the action of the court in overruling the motions for a new trial and in arrest of judgment, and there is no error in the record proper, the judgment will he affirmed.</p>

— Hon. John E. Ryland, Judge. • (1)' Instruction number 2 given on part of state is erroneous in that it omits the element of felonious intent. State v. Campbell, 108 Mo. 611; State v. Moore, 101 Mo. 316; State v. Witt, 9 Mo. 392. (2) The evidence was insufficient to authorize the instruction on the presumption arising from recent possession of stolen property. State v. Crank, 75 Mo. 406; State v. Taylor, 111 Mo. 538; State v. Scott, 109 Mo. 226; State v. Wilks, 58 Mo.

— Hon. John A. Hockaday, Judge. (1) Defendant’s application for continuance was properly overruled because the witnesses alleged to have been absent were present and testified at the trial, and defendant was not prejudiced. The second application for a continuance is not preserved.

— Hon. E. M. Hughes, Judge. (1) The court’s instruction defining reasonable doubt to be “a substantial doubt growing out of and consistent with the evidence,” is erroneous, and as the defendant offered no evidence in this case is peculiarly hurtful and should be held reversible error. The doubt may grow out of the evidence or the lack of evidence.

Louis Criminal Court. — Hon. Henry L. Edmunds, Judge. (1) There is no error apparent of record. The indictment is in the usual form of one charging burglary and larceny, and in all respects sufficient. It is permitted by statute, and authorized by numerous decisions of this court that burglary and larceny may be charged in one count of the same indictment.Revised Statutes, sec. 3529.

— Hon. R. E. Culver, Judge. (1) It is the duty of the trial court to give all necessary instructions, whether asked to do so or not, and where instructions are offered which are objectionable, the court should give such as the law requires. State v. Stomm, 62 Mo. 596; State v. Palmer, 88 Mo. 568; State v. Banks, 73 Mo. 592. (2) The court erred in failing to instruct on the theory of self-defense as to each defendant.

— Hon. O. O. Bland, Judge. (1) The plea of former acquittal raised an issue of fact on which defendant was entitled to a jury trial. Com. v. Fredericks, 155 Mass. 455; 2 Van Fleet, Former Adjudications, sec. 661; Grisham v. State, 19 Tex. App. 504; Troy v. State, 10 Tex. App. 319; Wharton’s Orim. Law, p. 565; Cooley’s Const. Lim. .328. (2) Parol evidence is admissible to prove the identity of the two offenses.

— Hon. John E. Ryland, Judge. (1) The indictment is defective, and does not sufficiently charge any public offense against defendant. It charges “with intent the goods, chattels, personal property and valuable things” in the said store, etc. There is no charge that the intent was felonious. The indictment must charge that both the act and intent were felonious. State v. Feaster, 25 Mo. 324; State v. Herrell, 97 Mo. 105; State v. Green, 111 Mo. 585.

D. W. Shackleford, Judge. (1) The evidence admitted by the court, tending to show other offenses or misconduct of defendant, should have been rejected, or stricken out on defendant’s motion, when offered. State v. Baubert, 42 Mo. 238.

Louis Criminal Court. — Hon. H. L._ Edmunds, Judge. (1) The court erred in refusing to allow defendant to show by Dr. Frank and Dr. Coryell that she had received injuries nine or ten months before the homicide which predisposed her to attacks of unconsciousness, hysteria, and other disorders of her powers of perception, reason, memory or will, when under the-influence of excitement from any cause.

— Hon. C. C. Bland, Judge. (1) The verdict is not against the evidence; the evidence on the part of the state abundantly justifies the verdict. (2) Instructions numbers 10, 11, and 12, asked for the defendant, were properly refused. They enunciated propositions which never were nor ever will be the law as long as civilized society stands. (3) Instructions numbers 2, 4, 8, and 11, given on the part of the state, properly declared the law in the case.

— Hon. W. N. Evans, Judge. ■ - (1) The verdict is against the evidence and is the result of passion and prejudice, and should be set aside. State v. Primm, 98 Mo. 368; State v. Lowe, 93 Mo. 547. (2) The court should have instructed the jury for the degrees of manslaughter on the testimony. R. S. 1889, sec. 4208; State v. Palmer, 88 Mo. 568. (3) Defendant’s testimony for the purpose of instructing the jury occupied the same footing as any other witness.

<p>Criminal Practice: murder: appeal. Where the defendant files no bill of exceptions and there is no error on the face of the record proper, the judgment will be affirmed.</p>

Louis Criminal Court. — Hon. Henry L. Edmunds, Judge. (1) There is no error apparent in the record proper. The indictment is sufficient in all respects and follows approved precedents. (2) The point made on the opening of the case against the reception of any 'testimony is not preserved in the motion for new trial, nor is there anything apparent of record to sustain it.

— Hon. Aegus Oox, Judge. (1) The indictment is drawn in the language of the statute and contains all the necessary averments to properly charge manslaughter in the second degree. Sec. 3468, R. S. 1889, as amended by Laws 1895, p. 154; State v. Fmerick, 87 Mo. 110. (2) The evidence was ample to support the verdict. State v. Fdmondson, 33 S. W. Rep. 17. (3) The instructions properly declared the law.

— Hon. W. N. Evans, Judge. (1) One of the issues in the case was the ownership of the steer alleged to have been stolen, and the jury should have been instructed to acquit unless they believed from, all the evidence in the case beyond a reasonable doubt that the steer killed by Whitaker and Q-oforth was the property of S. W. McNall, as alleged in the indictment.

— Hon. John S. Ryland, Judge. (1) Instruction 1 on part of the state is undoubted law, and has been so recognized for years. R. S. 1889, secs. 3526 and 3528. (2) Instruction 2, given on part of state, is unobjectionable? State v. Recox, 83 Mo. 531; State v. Riggins, 88 Mo. 354; State v. Grant, 76 Mo. 236; State v. Gasell, 30 Mo. 92. (3) Instruction 3, on part of state, properly declares the law. Kelley’s Criminal Law and Practice, p. 410, sec. 617..

The court will not consider the bill of exceptions which is embodied in the transcript in this case, for the reason that the same has not been signed by the judge who tried the cause. R. S. 1889, sec. 2167; Garth v. Caldwell, 72 Mo. 622.

— Hon. W. N. Evans, Judge. (1) The testimony in this case shows abundantly and beyond any question the guilt of the defendant, and the judgment should not be disturbed because of this allegation of alleged error. It is only where there is a total failure of proof that this court will interfere and reverse a judgment. State v. Fischer, 124 Mo. 462; State v. Punshon, 124 Mo. 448; State v. 'Banks, 118 Mo. 117. (2) The verdict is in harmony with the law as declared by the court.

— Hon. James H. Lay, . Judge. (1) The court committed error, first, in its rulings on the evidence, second, in not striking out the evidence of the witness Emma Martin. (2) The court also committed error in its rulings on the instructions.

— Hon. W. N. Evans, Judge. (Í) The testimony in this case clearly shows the exclusive possession by' the defendant of a portion of the goods taken at the time of the burglary and larceny. The defendant attempted to account for the possession and it was an issue for the jury to determine under the instructions whether or not he had satisfactorily obtained possession of these goods.

— Hon. W. W. Rucker, Judge. (1) The evidence is insufficient to support the verdict'of the jury and the judgment of the court. State v. Gibson, 108 Mo. 575; State v. Brinkman, 40 Mo. App. 284; State v. Himt, 91 Mo. 490; State v. Castor, 93 Mo. 242; State v. Daubert, 42 Mo. 242; State v. Mansfield, 41 Mo. 470; State v. Marshall, 47 Mo. 378; State v. Primm, 98 Mo. 368; State v. Pachvood, 26 Mo. 340; State v. Jaeger, 66 Mo. 173.

(1) The act of 1895 is remedial and should be liberally construed. (2) The motion to revote as a matter of law unquestionably challenges the sufficiency of the record to authorize the appointment of a receivér, and in that respect questions the correctness of the court’s action, although of a discretionary character. 2 Beach, Mod. Eq. Prac., sec. 720, notes 2 and 3, and sec. 936, notes 3 and 4.

Louis City Circuit Court. (1) “The law does not presume, from the simple fact of one man’s handing over money to another, that the transaction is prima facie a loan.” Gerding v. Walter, 29 Mo. 426; Coxv. Bennett, 18 W. N. C. 519; Carey v. Gerrish, 4 Esp. 9. (2) The plaintiff can not recover on mere conjectures; there must be either direct proof or facts shown from which legitimate and logical inferences may be drawn. Breen v. St. L. Cooperage Co., 50 Mo.

— Hon. C. A. Anthony, Judge. (1) Plaintiffs are bound by the contract they voluntarily entered into and can not recover more than the agreed valuation. Qwinv. Waggoner, 98 Mo. 315.; O’Brien v. Kinney, 74 Mo. 137; Railroad v. Cleary, 77 Mo. 634; Campbell v. Van Houton, 44 Mo. App. 238 -, Snider v. Ex. Co., 63 Mo. 376; Brown v. Railroad, 18 Mo. App. 573; Rothschild v. Frensdorf, 21 Mo. App. 321.

Louis Criminal Court. — Hon. Henry L. Edmunds, Judge. (1) The court erred in overruling defendant’s application for a continuance.

— Hon. James H. Lay, Judge. (1) The will of Calvin Atkins gave Margaret A. Atkins a life estate in the property he died possessed of with absolute power of disposal and any disposition she made of the property in her lifetime was a legal exercise of the power given her and vested a legal title in anyone to whom she gave it. Harris v. Knapp, 21 Pick. 416; Davis v. Bolls, 20 Ohio St. 550; Turner v. Timberlake, 53 Mo. 371; McKenzie’s Appeal, 19 Am. Rep. 525; Reindersv.

— Hon. C. A. Anthony, Judge. The plaintiff and defendant having entered into a written contract whereby they mutually agree upon a line between their adjoining lands which line had been plainly marked out by the¡ surveyor, and the location of said line well known to both parties, and they both took possession under the agreement and they are both bound by it, and even if there had been a mistake made by a third party in running the line neither party can afterward repudiate…

— Hon. A. M. Woodson, Judge. (1) The court erred in overruling the objections to the competency of the juror Campbell. The voir dire examination clearly shows that he was under the influence of impressions which would close, his mind to evidence. State v. Cunningham, 100 Mo. 382; State v. Brooks, 92 Mo. 542; McCarthy v. Railroad, 92 Mo. 536.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. The suit is to obtain a construction of the will of Mr. Joseph J. Mersman, deceased. It is a very long document. The following synopsis of certain sections of it and quotations of the material passages present a sufficient outline of the subject-matter of the controversy: THE MEBSMAN WILL. Section 1. General provision for payment of debts and funeral expenses. Sec. 2.

Original Proceeding for Contempt. The court should sustain the motion now pending for a writ directed to its marshal requiring him to seize the railroad in controversy and to turn it over to the receiver de jure and should also compel by attachment Louis Houck to deliver to such receiver the books, papers, etc., of the company. 2 Spelling’s Extraordinary Relief, sec. 1762; Ravemeyer v. Superior Court, 84 Cal. 327; State v. Court of Appeals, 97 Mo. 276; Thomas v. Mead, 36 Mo.…

— Robert E. Ball, Esq., Special Judge. The following statement is taken from one prepared by Judge Macfarlane during the progress of the cause in the supreme court.

<p>Appeal from St. Louis Criminal Court. — Hon. Henry L. Edmunds, Judge.</p>

— Hon. W. W. • Rucker, Judge. The defendant was fined $500, having been found guilty of attempting to bribe one Dickenson who had been summoned and selected as one of a panel of forty, who were summoned in the case of the state of Missouri against ¥m. P. and Gleorge E. Taylor, indicted for the murder of Glus Meeks.

(1) The defendant, King, was a trustee for the county of Vernon, the law authorizing him to collect the fees and requiring him to keep a strict and itemized account thereof; and having so collected and accounted he was authorized to retain the amount fixed by statute for his services. Constitution of the state of Missouri, sec. 13, art. 9; R. S. 1889, sec. 7450; Thornton v. Thomas, 65 Mo. 272.

(1) It seems that certiorari, as well as an alias writ of habeas corpus from the superior court, is a remedy, particularly in a case where a court, an inferior tribunal, adjudicates. Proceedings by certiorari in connection with habeas corpus are in the nature of an appeal, or writ of error, and should bring up the record and proofs as fully as on appeal or writ of error. It is so at common law, as counsel believe.

— Hon. John A. Hookah ay, Judge. (1) The court should have made an order staying the prosecution of this suit until the costs of the first suit had been paid. This is a rule of practice well established, and is founded upon the plain principles of justice. Buckets v. Railroad, 47 Fed.

Louis Court of Criminal Correction. Hon. David Murphy, Judge. This prosecution is based on an act of the legislature approved April 22, 1895, and found in the laws of Missouri of that year, pages 26 et seq., which act will be presently quoted.

— Hon. D. W. Shackle-ford, Judge. (1) Before the city could proceed to institute proceedings to recover the taxes alleged to be due against the property in the petition mentioned, it was required of the city collector to employ an attorney and his appointment or employment must first meet the approval of the mayor. R. S. 1889, secs. 7681, 2064. (2) There was no valid assessment of the taxes attempted to be collected.

Louis Court of Criminal Correction. — Hon. James R. Claiborne, Judge. This ordinance regulation was clearly within the charter powers of the city to enact, and the city would have had the right to enact such a police regulation, even if the charter had been silent on the subject. Dillon on Municipal Corp., sec. 405, and cases cited in note; Tiedeman’s Limitations of Police Power, p'. 438, sec. 122 e., and cases cited in notes.

Quo Warranto. Respondent’s commission issued in August; 1889, terminated at the general election in 1890, when all justices were elected for a term of four years by the terms of the statute; his commission issued in November, 1892, by its own terms and the law ended in November, 1894.

<p>Appeal from Scotland Circuit Court. — Hon. Ben. E. Turner, Judge.</p> <p>(1) The defendant corporation is a person. People v. Budd, 117 111. 1; Bail-way Co. v. Beckwith, 129 U. S. 26; Bank v. Billings, 4 Peter, 514; Northwestern F. Co. v. Toxvn, 3 Biss. 480; Cooley, Const. Lim. [6 Ed.], 484; Leep v. Bailxvay Co., 58 Ark. 407; Bailway Tax Cases, 13 Fed. Rep. 722; Santa Clara Ho. v. Bailroad, 118 U. S. 394. (2) The statute violates the most fundamental principle of insurance, which principle is that the contract of insurance is one purely of indemnity; and enacts in its place a wager policy, which policy so enacted is contrary to the principles of insurance, which have always been construed to the effect that the insured will not be allowed to reap profits on account of casualty insured against. May on Insurance, sec. 2; Emerigon on Insurance, p. 13; Insurance Co. v. Hxighes, 10 Lea, 461. (3) The statute is contrary to public policy, promotes crime, and offers a premium for fraud and arson, and endangers private property, which would otherwise be safe, by offering premiums for setting fire to private property covered by insurance, and in all its tendencies is immoral. (4) The statute changes the rules of evidence within the meaning of the constitution of this state, and contrary to the course of the common law, in that the statute provides that regardless of the extent of the loss, and regardless of the common law rules of evidence, that no person shall recover except upon proof of damages sustained, and enacts in its place that the plaintiff shall not be required to prove the extent of his damages, neither shall the defendant be allowed to disprove the amount of his damages claimed, but by operation of the statute alone, the amount to be recovered in the case is adjudged, regardless of the damages sustained, the evidence, and the contract of the parties. Tiedeman on Limts. Police Power, p. 519; Tift v. Griffin, 5 G-a. 185; Railroad v. Payne, 33 Ark. 816; Abbot v. Lindenboiver, 42 Mo. 162; Young v. Beardley, 11 Paige, 93; Fast Kingston v. Towle, 48 N. H. 57; Allen v. Armstrong, 16 Iowa, 508; Conway v. Cable, 37 111. 82; White v. Flinn, 23 Ind. 46; GroesbecJc v. Seeley, 13 Mich. 329; Lem v. Charlton, 23 Wis. 478; Taylor v. Miles, 5 Kan. 498; Wright v. Ceadlebaugh, 3 Nev. 341; Constitution, see. 53, art. 4; Constitution, sec. 28, art. 2; Cooley on Const. Limt., p. 208; Railway Co. v. Payne, 33 Ark. 816. (5) The statute violates the first and most fundamental principle of the law of contracts, viz.: That there can, in fact, be no contract between parties unless the minds of the parties meet, and acquiesce in the thing contracted about. The statute makes the contract, without the meeting of the minds of the parties, regardless of the fact that the parties have agreed to a contract in terms directly opposite to what the statute compels. (6) The statute prevents parties from making their own contract in reference to a private matter of business, deprives the defendant of its property without due process of law and takes private property and funds held in trust and gives it to a private individual without consideration and contrary to the written contract deliberately entered into between the parties, and is not uniform in its operation. Ins. Go. v. Morse, 20 Wall. 485; Leep v. Railway Co., 25 S. W. Eep. 75; State v. Loomis, 22 S. W. Eep. 350. (7) It is clearly the duty of courts to hold every infringement of constitutional rights, and all constitutional provisions for the security of persons and property should be liberally construed. Boyd v. United States, 116 TJ. S. 616; Ah Kow v. Neuman, 5 Sawyer, 562; Ordronáux on Const. Leg., p. 418; Sedgwick, Stat. and Const. Law, p. 182; Marbury v. Madison, 1 Cranch, 137, 1 Kent, 448; Bonham’s case, 6 Eep. 118; Cooley, Const. Lim., 44; Magiar v. Kansas, 123 U. S. 661. (8) There is no power in the legislature to regulate private contract and prescribe the conditions under which it shall conduct its business, although the business be that of a corporation, unless such contracts pertain to a public use, or are injurious to the morals, health, safety, or comfort of the people. Ins. Co. v. Morse, 20 Wall. 445; People v. Budd, 117 N. Y. 1; Commonwealth v. Perry, 14 L. E. A. 325; Btitchers, etc., v. Cresent City, etc., Ill U. S. 746; New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650; Railroad v. McClure, 10 Wall. 511; Ins. Co. v. Lebolt, 16 Howard, 416; Sedgwick’s- Stat. and Const. Law, 637. (9) The effect of the statute is to deprive the defendant of its property without due process of law, within the meaning of the constitution of this state and of the United States, and the decisions in interpretation thereof. Story on Const. [5 Ed.], sec. 1943; Cooley on Const. Lim. [6 Ed.], 430; Railway Co. v. Humes, 115 U. S. 512; Bank v. Okley, 4 Wheat. 235; Wally’s Heirs v. Kennedy, 2 Yerg. 554; Story, Const. [5 Ed.], sec. 1590; State v. Loomis, 22 S. W. Rep. 351; Strong on Const. [5 Ed.], 1590, 1943; Cooley, Const. Lim. [6 Ed.], 430, 356. (10) The statute is in derogation of the right of contract and the legislature had no power to enact the statute under the police power of the state, and it violates the fundamental constitutional provisions. State v. Loomis, 22 S. W. Rep. 350; State v. Julow, 31 S. W. Rep. 781; Shaver v. Pennsylvania Go., 71 Fed. Rep. 931; Cooley on Const. Lim. 575; Low v. Printing Co., 41 Feb. 127; Millett v. People, 117 111. 294; Forer v. People, 141 111. 171; Ex parte KubacJc, 85 Cal. 274; Application of Jacobs, 98 F. Y. 106; People v. Gillson, 109 F. Y. 389; State ex rel. v. Laclede, etc., 102 Mo. 472; Tiedeman on Police Power, 210; Ueio Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650; Ex parte Whitwell, 19 L. R. A. 727; Ex parte Tuttle, 91 Cal. 589. (11) Even if the legislature had power to regulate and control insurance companies, yet the .act is unreasonable and consequently void. Pail/road <o. Minn.,134c U. S. 458; Reaganv. Co., 154 U. S. 162; Ames v. Railroad, 64 Fed. Rep. 165.</p> <p>(1) The statutes involved in this case should be held good on the ground of public policy. And similar statutes have been held constitutional in other states on this ground. Reily v. Ins. Co., 43 Wis. 449. (2) The statute was in force when this policy was issued. A law passed before a contract was made can not impair its obligation. Bronson v. Rinsey, 1 How. 311; Moor v. Fowler, Hemp, 536; Blair v. Williams, 4 Lit. 54; Robby v. Boswell, 23 Ga. 51; Powers v. Dougherty, Ibid., 65; Sparrow v. Railroad, 7 Ind. 369; Davis v. Bronson, 6 Iowa, 410; Bruns v. Crawford, 34 Mo. 330; Edwards v. Keory, 96 U. S. 600. (3) A law existing at the time the contract is made and by which the contract is enforced, enters into and becomes a part of the contract as much as if it was referred to and made a part of its terms and does not impair its obligation. Ellerbe v. Association, 114 Mo. 501; Havens v.Ins. Go., 123 Mo. 403; Barnard v. Ins. Co., 38 Mo. App. 106; Balier v. Ins. Go., 57 Mo. App. 559; Finney v. Finney, '81 Mich. 450. (4) And the constitutional prohibition relates to laws passed after the contract is made. Lehi Water Co. v. Easton, 121 U. S. 388; Aug don v. 'Saunders, 12 Wheat. 213. And it is immaterial where the law originated. Williams v. Bruffy, 98 TJ. 8. 176. '(5) And a law prohibiting the making of a contract is mot a law impairing the obligation of contract. Churchman v. Martin, 54 Ind. 380. (6) Nor a law varying the consequence without changing the essence and character of the contract or altering the nature or obligations therein. Gosey v. Nav. Go., 2 Watts & S. 156. (7) A state has full power to prescribe the conditions on which an insurance company may carry on its business therein (State v. Stone, 118 Mo. 388), and regulate foreign insurance companies doing business in a state. State v. Ships, 31 Pac. Rep. 1097; Paul v. Virginia, 8 Wall. 168; Ducat v. Chicago, 10 Wall. 410; Ins. Go. v. Mass., Ibid. 566. (8) The statute can not be stipulated away and any attempt to do so will be held invalid, and this character of a stipulation is what the statute of this state strikes at. R. S. 1889, sec. 5898. If it was otherwise, the public would not be safe, law would become a farce, the strong would take advantage of the weak. Hence it has been often held that no contract can change the law. Havens v. Ins. Co., supra, and cases cited at page 417. (9) Where a coi’poration recognizes a statute by doing business under it, it is estopped from denying its constitutionality when it finds that the law imposes a liability on it. Railroad v. King, 98 Miss. 852; Collier v. Morrow, 90 Oa. 148. (10) Insurance company waives its right by acting under the law. State v. Ins. Co., 15 S. Rep. 347. And a statute does not deny a corporation the equal protection of the law if it treats them all alike (151 U. S. 556); Railroad v. Bristol, 14 Sup. Ct. U. S. 437. (11) And a law which changes the rules of evidence relates to the remedy only and may be applied to cases existing at the passage of the act. O’Bryan v. Allen, 108 Mo. 227. (12) As to whether this is a local or special law, and, therefore, in contravention of section 53, article 4, constitution, has been settled by the following cases: Ex parte Swan, 96 Mo. 44, 50, citing and affirming State ex rel. v. Rond, 93 Mo. 606. And see State v. King, 74 Mo. 612; State v. Jachson, 80 Mo. 175.</p>

Louis Court of Criminal Correction. Hon. David Murphy, Judge. (1) The “bookmaking and pool selling act” of March 12, 1895, upon which the information herein is bottomed, grants special privileges and immunities in violation of section 15, article 2, and section 53, article 4, of the constitution of Missouri.

— Hon. J. T. Neville, Judge. (1) The liability of the .county to pay costs in criminal cases is strictly a statutory liability, and the question of justice or injustice to the parties claiming costs is not a matter for consideration here. State ex rel. v. Oliver, 116 Mo. 188; Bright v. Pihe County, 69Mo. 519; Person v. Ozarh County, 82 Mo. 491.

— Hon. W. S. Hebndon, Judge. (1) The court committed reversible errors in giving to the jury instructions numbered 1, 5, 6, and 8 on the part of the plaintiffs, because there was no evidence of Joseph D. Gilmore having exercised undue influence over the mind of the testator.

— Hon. James H. Lay, Judge. (1) Injunction is the proper remedy for the relief sought in this action, and the suit is properly brought at the relation of the prosecuting attorney. State ex rel. v. Hughes, 104 Mo. 459; 2 High on Injunctions, sec. 1327. (2) The act is void because it does not purport to enact anything, and it can not be ascertained where the recital ends and the act begins.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) Spear purchased the Wellington note after its maturity and with notice of its dishonor, hence he took it subject to all equities. Tiedeman on Commercial Paper, secs. 295-305; Kellogg v. Schnaahe, 56 Mo. 136; Chappel v. Allen, 38 Mo. 213; Livermore v. Blood, 40 Mo. 48; Brownlee v. Arnold, 60 Mo. 79; Turner v. Hoyle, 95 Mo. 337, and authorities there cited.

— Hon. E. J. Bboaddus, Judge. (1) The indictment is insufficient. It does not state any conditions on which the Farmers Bank of Polo was to pay money to or for defendant, nor does it state how any money was obtained by him. This was imperatively necessary. 1 Bishop on Crim. Pro. [3 Ed.], secs. 508, 509; State v. Bonnell, 46 Mo. 395; State v. Saunders, 63 Mo. 482; State v. Hathaway, 106 Mo. 239; Com. v. Strain, 10 Mete. 521; Com. v. Goddard, 4 Allen, 212.

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. (1) Kirkwood is an incorporated town, incorporated under a special charter, under which it necessarily levies an annual tax for road purposes, and Revised Statutes, Missouri, 1889, section 1674, provides that “such towns,” i. e., towns which are incorporated and levy a tax to maintain roads and streets within their limits (see 90 Mo. 166), shall be exempt from taxes for outside roads.

<p>1. Mandamus: officer. One asking for a writ of mandamus against a public officer must have a clear legal right to the specific service which he seeks to have performed.</p> <p>2. Election: nominations of officers: elector’s certificate: secretary op state. Unless an elector’s certificate of the nomination of candidates foirpresidential electors and state officers is properly certified and acknowledged by the requisite number of electors, the secretary of state will not be compelled to file it and place the names purporting to be certified on the official ballot.</p> <p>3. -:--: -- — :--. After a certificate of nomination of “silver party” candidates which called for presidential electors who “will appear on the democratic ticket” had been signed by a number of voters, four of the democratic electors resigned and their places were filled by nominees of the populist party. Then a new silver party certificate of nomination was prepared, which contained the names of all the democratic electors, including the four democratic-populist candidates, and to this certificate was annexed the signatures which had been detached from the original petition. H'eld, the names so attached could not be considered in determining whether the' new certificate had the one thousand names required by section 4763, Revised Statutes, 1889.</p>

— Hon. W. W. Rucker, Judge. (1) The act of the law rendering it impossible for the bail to produce the principal in court will excuse the security. Belding v. State, 99 Am. Dec. 214; People v. Bartlett, 3 Hill, 570.

Louis City Circuit Cou,rt. — Hon. John A. Harrison, Judge. Transferred from St. Louis Court of Appeals. (1) The bond sued upon was void as being without any consideration or upon a consideration which was against the law. “A sheriff may take a bond to keep himself harmless in doing that which he ought to do, but if he takes a bond to keep himself harmless in-doing that which he ought not to do, the bond is void and against the law.” Bloclcett v. Crissop, 1 Ld.

<p>Swamp Lands: drainage: county court: additional tax: mandamus: warrant: limitation. The ease of State ex rel. Frazer v. Molt County Count, 135 Mo. 533, involving the question of the drainage of swamp lands, the levying of an additional tax for the construction of ditches and other matters incident thereto, followed and affirmed.</p>

— Hon. James Gibson, Judge. (1) The section is unconstitutional because it is a tax which is not uniform in its operation over the same class of subjects. Constitution of Missouri, sec. 3, art. 10; Cooley on Taxation, p. 172; Cody v. Spiegel, 75 Mo. 145; Haus v. Louisville, 5 Dana, 28; Pruitt v. Com’rs, 94 N. C. 709; Mayor v. Altrop, 5 Cold. (Tenn.) 555; Cooley, Const. Lim., p. 607.

— Hon. Chas. L.. Dobson, Judge. {1) There was not a scintilla of evidence to show that.the land in dispute was in lot 1. In ejectment it is essential to plaintiff’s case that he show such a right as is necessary to a recovery under our law. Duncan v. Noble, 99 Mo. 188. (2) The court erred in its rulings on the instructions.

— Hon. D. P. Stratton, Judge. (1) In cases like this, of alleged municipal contracts, based on election and special vote by the people, under a statute, the authority to make them could not exist apart from the expressly voted assent to the contract. The vote and proposition constitute the very charter of authority with its limitations.

— Hon. E. M» Hughes, Judge. (1) The deed of trust executed by Roy was inoperative, as Roy had confessedly no interest in the land which could be affected by the deed, and it does not assume to be the deed of Baker by Roy as his agent or attorney. Sec. 2395, R. S. 1889.

— Hon. Argus Cox, Judge. (1) The fraud of Bennington will warrant the setting aside of the deeds. Bailey v. Smock, 61 Mo. 213; Dunn v. White, 63 Mo. 181; Caldivellv. Ilenry, 76 Mo. 254; Cottrill v. Krum, 100 Mo. 397. (2) That the deed to appellant’s land was obtained by fraud was shown by the evidence and neither denied by answer or testimony, and was therefore admitted. 18 Am. and Eng. Ency. of Law, p. 498 (1); Kortzendorfer v. City, 52 Mo. 204.

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. (1) The trial court should have directed the jury to return a verdict for the defendant, as requested. Where there is no evidence to uphold a verdict, or to sustain any material allegation of the petition, the supreme court will reverse a judgment founded on the verdict, and the interposition of a demurrer at the close of the case requires this court to review the evidence taken as a whole.

Mandamus. (1) Mandamus will lie to compel the performance of ministerial duties. Such duties need not be specifically stated in the law. It is sufficient if they are imposed by implication from a fair and reasonable construction of the law. People v. Green, 64 N. Y. 499; Merrell on Mandamus, sec. 13.

— Hon. Reuben F. Roy, Judge. Respondent was in default in leaving boxes and other obstructions on the platform of the baggage car; appellant had the right to pass over this platform as the public are generally permitted to use the ends of such cars next to the passenger cars. He therefore made out a prima facie case and the issue should have been submitted to the jury. Dougherty v. Railroad, 128 Mo. 33; Fichorn v. Railroad, 130 Mo. 575; O’Mellia v. Railroad, 115 Mo. 205.

— Howard Gray, Esq., Special Judge. (1) The evidence did not warrant the action of the court in finding that the lease from. Clark, Cochran & Phelps to J. P. McCoy and the royalties derived therefrom were partnership property, and as result thereof decreeing that the administratrix of the partnership estate of Bell & McCoy was entitled to said leasehold interest, and the rents and royalties arising therefrom.

— Hon. Richard Field, Judge. (1) There is no allegation in the petition or reply that plaintiff is not responsible, and before plaintiff is entitled to have that question passed upon it should be pleaded. Want of capacity must be pleaded. Pom. Code Rem.., sec. 711. (2) The court should have instructed a verdict for the defendant either at the close of plaintiff’s case or at the close of all of the evidence.

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. (1) At the time deceased was injured he was not discharging to the defendants any duty he owed them under his employment. Held: however, that there was evidence tending to show that the stone was being run at a dangerous rate of speed, still defendants are not liable; for the deceased himself determined and fixed the rate of speed, and' could, if he had seen fit, have changed to a slower and maybe a safer speed.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. The terms of the letter of appellant dated June 11, 1889, in answer to one from respondents dated June 4, 1889, did not constitute a contract between the parties, as in order to convert a proposal into a contract the acceptance must be absolute and unconditional. Lawson on Contracts, sec. 15; Eggleston v. Wagner, 46 Mich. 610; Pollock on Contracts [Wald’s Ed.], p. 22; Railroad v. Dane, 43 N. Y. 240.

Mandamus. (1) Mandamus is the proper remedy for relator in this case. Mansfield v. Fuller, 50 Mo. App. 338; State ex rel. v. Joplin Waterworks, 52 Mo. App. 312; Barnes v. Gottsclialk, 3 Mo. App. 111. (2) The relator has done all that is required of him by the law, and the issuing of the certificate is a mere ministerial act, the performance of which maybe compelled by mandamus. State ex rel. v. Hathaway, 103 Mo. 22; State ex rel v. Strother, 42 Mo.

— Hon, E. O. Ceow, Judge, (1) The question of plea in bar as to whether defendant had once been tried for the same offense was a question of fact and properly triable by jury. Briggs v. Railroad, 111 Mo. 168; Const, of 1875, art. 2, sec. 28.

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. (1) Challenge by defendant to venireman J. T. Williams should have been sustained. This case is not within the long line of cases of which State v. Elkins, 101 Mo. 344,. is one. To change opinion of this juror defendant would be compelled to prove his innocence. Section 4197, Revised Statutes, 1889, should control.

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. * (1) The verdict in this case is supported and warranted by the law and the evidence. The evidence shows that the killing was murder in the first degree; that it was perpetrated in the consummation of a prearranged conspiracy to rob, and under the instructions given by the court, the jury could do nothing but return .a verdict ' of murder in the first degree.

— Hon. J.-H. Sloyek, Judge.- (1) The authority of the city to build sewers is given for a public purpose; not for the private benefit of the corporation, and the city is not liable for the negligence of its officers and employees. Murtaugh v. St. Louis, 44 Mo. 479; Carrington v. St. Louis, 89 Mo. 208; Kiley v. Kansas City, 87 Mo. 103; 15 Am. and. Eng. Ency. of Law, 1141, sec. 16.

<p>Appellate Practice: abstract of record: printing. Allowance b;&wkey; tbe supreme court, under Revised Statutes, 1889, section 2253,’ for cost of printing tbe abstract of record requires judicial action, and tbe application tberefor must be made at the term of court at which the final judgment is rendered or within the ten days thereafter allowed for filing motions for rehearing or for modifications of judgments.</p>

— Hon. J. C. ■ Lamson, Judge. The indictment in this case is sufficient and contains all the necessary averments to inform the defendant of the offense with which he is charged. Section 3526, R. S. 1889; State v. Hecox, 83 Mo. 534; State v. Edwards, 109 Mo. 318.

— Hon. J. J. G-xdeon, Judge. (1) The defendant’s application for a continuance should have been sustained. State v. Maddox, 117 Mo. 667; State v. Loioe, 98 Mo. 609; State v. Dawson, 90 Mo. 149. (2) Defendant was* entitled to a change of venue under the law as it stood at the time he was charged with committing the crime. Kring v. Missouri, 107 U. S.'221; Duncan v. Missouri, 152 U. S. 377.