Volume 145 — Missouri Reports

— Hon. John E. Ryland, Judge. (1) The evidence in this case is not of sufficient weight, potency, or probative force to support the verdict, and the trial court committed error in not setting aside the verdict and granting defendant a new trial.

— Hon. Henry C. Riley, Judge. (1) The court erred in overruling appellant’s motion to dismiss the appeal taken by respondent from the order of the county court. Session Acts of 1891, pages 152, 153, 154, amending Revised Statutes 1889, sections 5009, 5010, and 5011. If was not a judgment, but an administrative order of the court.

— Hon. D. W. Shackleford, Judge. (1) The action of the court below was violative of the defendant’s.rights under the Constitutions of the United States and of this State. R. S. 1889, sec. 2543 Const, of Mo., art. 2, secs. 20, 21 and 30, and art. XII, sec. 4; Const, of U. S., 14 amd., sec. 1.

<p>1. Condemnation: damages. The person who se land is taken for railroad purposes by the right of eminent domain, is entitled by way of damages to the land actually taken for the right of way, and the damages occasioned thereby to the balance of the farm of which it forms a part.</p> <p>2. -: -: instruction: double damages. An instruction that told the jury to allow defendant “the value of the land actually taken for the right of way/’ and the “further sum, if any, as the jury may find from the evidence to be the damages to the whole tract or farm, of which the right of way forms a part," is subject to verbal criticism, yet it is not erroneous as directing double damages.</p> <p>S. -: -: isolated lands. It is held in this case that in non© of the three instructions objected to by appellant, were the jury told that an isolated piece of land was to be considered by them as a part of the landowner’s farm, in their assessment of damages for the right of way and for the diminution in value to such farm from establishing the same through it.</p> <p>4. -: exclusive possession: right op owner op pee. When a railroad company condemns land for its right of way, it has the right to the exclusive possession of the entire part condemned, and it i§ only by consent of the company that the owner of the fee in the laud can use the surface for any purpose. Therefore, an instruction that told the jury that if a valuable pond could not be maintained because of the fact that “it extends onto the right of way condemned by the railroad company," they should consider that fact in estimating the damages, is not to be condemned.</p> <p>5. -: judgment: technical question. This court will not reverse a judgment beca-use questions of such a technical character that the rights of appellant could not have been prejudiced thereby, were asked and erroneously permitted in the face of objections.</p> <p>6. -: excessive damages. The estimation of damages is the province of the jury, and where their verdict is supported by substantial evidence and it has met the approval of the trial judge, this court will not interfere on the ground that it is excessive.</p>

— Hon. Charles L. Dobson, Judge. (1) A tax on capital stock or property of a corporation and an additional tax upon the shares in the hands of the stockholders is not a double .taxation. St. Joseph v. Railroad, 39 Mo. 480; State v. St. Louis Co., 47 Mo. 594; Ins. Co. v. St. Louis Co., 56 Mo. 515; Bank v. Richmond, 79 Va. 113. (2) When any statute is revised, or one act framed from another, some parts being omitted, the parts so omitted are to be considered annulled.

<p>Appellate Practice: transfer of cause: uncertain order. An order of the Kansas City Court of Appeals, transferring a cause to the Supreme Court because its decision in a cause therein is in conflict with a decision of the Supreme Court in the third volume of the Missouri Reports, without naming the case, is so indefinite and uncertain that it confers no jurisdiction upon the Supreme Court to hear and determine the ease and the case is accordingly remanded to said court of appeals.</p>

— Hon. Henry C. Riley, Judge. (1) A court of chancery has power to set aside a trustee’s sale under a deed of trust and permit the mortgagor to redeem where the conduct of the creditor toward the debtor is fraudulent, and this is true, although the land has been sold to another party, if the other party had knowledge of such fraud before paying the consideration.

<p>1. Appellate Jurisdiction: constitutional question: when invoked. Where no constitutional protection is claimed in the trial court, it can not be invoked here for the first time in such a way as to give this court jurisdiction of the appeal.</p> <p>2. -: -: federal question. Where the defense offered by appellant in the trial court was a compliance with the requirements of a United States statute, the validity of that statute is not so involved as to give this court jurisdiction of the appeal as a “ease involving the validity of a statute of the United States.”</p>

Louis Cotmty Circuit Court. — Hon. Eudolph Hirzel, Judge. (1) The natural configuration of the premises in question, and of the land adjacent thereto, was immaterial and not pertinent to the questions at issue, and testimony thereto should not have been admitted over plaintiff’s objection.

— Hon. W. W. Wood, Judge. (1) In this-case the question as to whether of not the defendant railroad was negligent in employing and keeping in their employ as engineer E. A. Dulin was clearly, under the evidence, one for the jury. Railroad v. Ives, 12 U. S. Sup. Ct. Rep. 679; O’Mellia v. Railroad, 115 Mo. 221; Wolff v. Campbell, 110 Mo. 120; Franke v. St. Louis, 110 Mo. 525; Gutridgev. Railroad, 105 Mo..520; Finch v. Ullman, 105Mo. 255.

— Hon. Richard Field, Judge.. (1) The deeds complained of should' have been set aside for fraud proven, and because made'without consideration. The evidence offered by appellant disproves the payments claimed to have been made therefor by respondent Youngs, and the appellant should have recovered on the weight of the evidence. Burgert v. Borchert, 59 Mo. 83; Cass Co. v. Green, 66 Mo. 510; Benne v. Sclmeeko, 100 Mo. 250.

— Hon. E. L. Scarritt, Judge. (1) The petition states a cause of action under sections 4426 and 4427, Revised Statutes 1889, and it was not necessary to allege or prove that deceased at the time of his death was the servant of plaintiff. Bu-ell v. Transfer Co., 45 Mo. 564; Owenv. BrockscJimidt, 54 Mo. 285; PJiilpott v. Railroad, 85 Mo. 164; Parsons v. Railroad, 94 Mo. 286; Tobin v. Railroad, 18 S. W. Rep. 997; Habel v. Union Depot Go., 140 Mo. 159.

<p>1. Appellate Practice: jurisdiction of trial court: when tion can be raised. The jurisdiction of any court over the d matter of the litigation is open to question in every case and, if apparent on the face of the record, may be raised for the first time in an appellate court.</p> <p>2. -: -: constitutional question. Before the Supreme Court can assume jurisdiction of an appeal on the ground that the case involves the construction of the Constitution, the record must show that the constitutional question was raised in the trial court, and that the protection of the Constitution claimed by the losing party was denied him.</p> <p>3. -: -: case stated. This ease was an action of replevin for the recovery of specific personal property of the value of $187.51. The property was claimed by the defendant as the assignee of one Ferris. The ease was tried by the court and the judgment was for the defendant for a return of the property or in default thereof for $187.50. The bill of exceptions recites that, “The cause being submitted to the court it was dismissed for want of jurisdiction and judgment rendered accordingly for defendant.” In the briefs of the counsel it is stated that the question of the constitutionality of the Act of 1891 (Laws 1891, p. 106) was the basis of the judgment dismissing the cause for want of jurisdiction. Reid, that a constitutional question is neither raised at the proper time nor in the proper manner and that the cause must be transferred to the St. Louis Court of Appeals, since the amount in controversy is not sufficient to give the Supreme Court jurisdiction. (Following Lang v. Callaway, 134 Mo. 491.)</p>

— Hon. E. L. Scabbitt, Judge. (1) We do not think this court has jurisdiction of this appeal. Two thousand five hundred dollars is claimed and no more. Plaintiff did not raise any constitutional question nor was he beaten on one. Plaintiff can not claim to be damaged by rulings against the defendant. The constitutional question must be fairly presented by the record. Bennett v. Railroad, 105 Mo. 642.

Robinson, Judge. -Hon. W. M. (1) The effect of the correspondence transmitting the money is purely a question of law. Bruin v. Bail-road, 89 Mo. 397; Milstead v. Mortgage Co., 49 Mo. App. 191; 1 Thomas on Trials, sec. 1370. (2) The meaning of the letters is not affected with any uncertainty, and there is no occasion to consider the surrounding circumstances. Kimball v. Brauner, 47 Mo. 399; Fruin v. Bailroad, 80 Mo. 405; Wolff v. Campbell, 110 Mo. 119.

— Hon. Richard Field, Judge. (1) The entire evidence taken together proves the agency that estops the plaintiff from now denying payment of the debt. Gibson v. Zeibig, 24 Mo. App. 65; Franklinv. Jns. Co., 52 Mo. 461; Brooks v. Jamison, 55 Mo. 512; Edwards v. Thompson, 66 Mo. 482; Mitchum v. Dunlap, 98 Mo. 418; Hull v. Jones, 69 Mo. 587; Wheelerv. Mfg. Co., 23 Mo. App. 190; Greeley-Burnham Grocer Co. v. Capen, 23 Mo. App. 306; Gibson v. Zeibig, 24 Mo.

— Hon. Henry O. Riley, Judge. (1) The circuit court had jurisdiction to render the judgment of discharge; it also had jurisdiction of the defendant, and said judgment can not be attacked collaterally.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. (1) The property, which is the subject of the tax-bills sought to be canceled, is not property of the city ■of St. Louis as a municipal corporation, and is, and ever since Bryan Mullanphy’s death in 1851 has been, liable to taxation. It is as much liable as if Mr. Mullanphy, instead of appointing the city to execute the trust created by his will, had appointed some private individual as trustee.

— Hon. John A. Hogkaday, Judge. (1) The indictment is bad. It is too indefinite and uncertain, and does not state facts sufficient to charge the crime of murder in either degree. State v. Meyers, 99 Mo. 114; State v. Green, 111 Mo. 588; State v. Fairlamb, 121 Mo. 153; State v. Rector, 126 Mo. 340.

— Hon. W. H. Roney, Special Judge. (1) In order to confer jurisdiction upon the probate 'court to make an order of sale of lands for the payment of debts upon the petition of the administrator under section 22, page 489, Greneral Statutes 1865, it was necessary, first, that the petition should describe the lands for which an order of sale was asked; second, that an order be made notifying the parties interested that an order for the sale of said lands would be made at the…

— Hon. W. H. Roney, Special Judge, (1) This is not a suit for “use and occupation” of the land described in the petition, but it is a suit in trespass for the mesne profits received by the defendants while in the unlawful possession of the lands.

<p>1. Stenographer and Clerk: to furnish transcript free. A defendant, who appeals from a conviction of felony in the circuit court of a city having over one hundred thousand inhabitants, is, under section 8256, Eevised Statutes 1889 (providing that “in eases of appeal and on motions for new trials the transcripts of the evidence shall be furnished to the defendant upon the order of the court without costs to the defendant”), entitled to have the official stenographer furnish the evidence to the clerk without cost, and to have the clerk certify the same to defendant without cost. (Following State ex rel. Martin v. Wofford, 121 Mo. 61.)</p> <p>2. -: -: MANDAMUS on judge. And the Supreme Court will compel, by mandamus, the judge of the circuit court to make and enforce an order requiring the stenographer and clerk to furnish the transcript in such case without cost.</p>

— Hon. Henby O. Riley, Judge. (1) Where the wife files no claim of record for homestead, as provided by Revised Statute 1889, section 5435, the record of title to which is in her husband, a deed executed by the husband alone is valid. R. S. 1889, see. 5435; Greer v. Major, 114 Mo. 145; Eufschmidt v. Gross, 112 Mo. 655; Tucker v. Wells, 111 Mo. 403; Shores v. Shores, 34 Mo. App. 211.

— Hon. Yinton Pike, Special Judge. (1) The agreement in question is not opposed to public policy. It is not immoral, illegal, nor does it tend to obstruct the proper administration of justice; nor is it superfluous, as calling for the performance of something which could be done as well by the act of the parties, as through the intervention of the court. Railroad v. Saunders, 44 íá. W. Eep. 644; Cash v. Lust, 44 S. W. Eep. 725; McMahon v. McMahon, 100 Mo. 99; Waller's Adm'xv.

— Hon. - ' Henbn C. Rilen, Judge. (1) The burden of proof to show innocence of purchaser rests on respondent. Eoldsworth v. Shannon, 113 Mo. 508. (2) Respondent’s defenses are inconsistent, to wit: First, ‘ ‘Morrison and his wife have committed a fraud upon the public, therefore, I can commit a fraud;” second, lam an innocent purchaser without notice. Long v. Long, 112 Mo. 11; Brown v. Bowen, 90 Mo. 186.

— Hon. E. J. Broaddus, Judge. (1) Dorton was a defacto officer, although he may never have taken the oath or given a bond as required by statute. State v. Carroll, 38 Conn. 471; Troop on Pub. Officers, secs. 629 and 630; State v. Dieberger, 90 Mo. 373; Montry v. JJMJuir, 20 Mo. 303; Cole Co. v. Dallmeyer, 101 Mo. 57; Mechem on Pub.

Transferred from St. Louis Court of Appeals. No causal connection was proved between the defect complained of and the injury sustained. The absence of the shoe on the hoister was a condition, not a cause. Wharton on Negligence [2 Ed.], sec. 85 et seq. There is no substantial evidence of the negligence charged.

Mandamus. (1) Whether the consolidation of two or more railroad companies under our statute creates a new company with new franchises, rights, privileges and immunities is yet an open question. Kinion v. Railroad, 39 M6. App. 385; Evans v. Railroad, 106 Mo. 601; Railroad v. Georgia, 92 U. S. 665; Railroad v. State, 152 U. S. 301; Railroad v. Georgia, 25 U. S. (L. Ó. P. Co.) 185.

— Hon. E. P. Oates, Judge. (1) The school laws of the State contemplate the existence of but one school district within a city, and that within its jurisdiction there shall at all times be embraced at least all qf the territory within the corporate limits of such city.

— Hon. Alex. Ross, Judge. (1) By reason of the death of John Painter respondents, Martha Holcomb and Thomas Clark, were incompetent to testify, and the court erred in overruling appellants’ objections to their evidence. (2) The evidence is not sufficient to establish a resulting trust.

— Hon. Charles L. Dobson, Judge. (1) Appellant’s mortgage upon its face is a legal and valid'mortgage. R. S. 1889, secs. 2418, 2419, 2420, 2434 and 2435; 4 Kent Com. [9 Ed.], marginal pages 140, 141, 142 and 143; Redfield, secs. 1016 and 1023; 1 Jones Mtgs., sees. 872, 373 and374 and notes; Bump Fraudulent Conveyances, p. 373, 179, 183, 185, 186, 187, 189, 190,194. An absolute deed given as security is a mortgage. (2) Defendant bank’s attachment is void.

<p>1. Taxation: succession tax: patent medicines. The case of State ex rel. Garth v. Switeler, 143 Mo. 287, is followed, and it is held that a tax levied on patent medicines under the collateral succession tax law of 1895 (Acts 1895, p. 278) is unconstitutional, for the reason in that case given, namely, because the tax therein provided for is not levied for a public purpose within the meaning of the Constitution, but for the use and benefit of a special class of students in the State University.</p>

— Hon. Cyrus A. Anthony, Judge. (1) The petition does not allege that the defendant Jordan ever had in his hands or that there was ever delivered to him, any properly certified and authenticated tax book, or any other legal warrant or authority to collect said tax. Unless such process was put into his hands by the proper authorities, he could not lawfully have collected the tax, nor could his sureties be held liable for his failure so to do.

— Hon. Charles L. Dobson, Judge. (1) While it is true, as a matter of fact, that no part of the real estate is mentioned in the ordinance cited in the statement of facts,, yet the ordinance was passed in terms taking and appropriating to public use, for the opening of saidTwenty-third street,the real estate described in petition and sought to be recovered in this action. The real estate was appropriated, and in law potentially taken.

Louis County Circuit Court. — Hon. Rudolph Hiezel, Judge. (1) Attornment can only be by word of mouth, or some act. 2 Coke upon Littleton [1 Am. Ed.], L. 3, ch. 10, sec. 551. (2) The relation of landlord and tenant does not arise between a purchaser and the occupants until the latter voluntarily attorns, or the purchaser exhibits his deed and demands an attornment.' Gray v. Rogers, 30 Mo. 258;' Lindenbower v. Bentley, 86 Mo. 515; Green v. Sternberg, 15 Mo.

— Hon. Dorset W. Shackleford, Judge. (1) The construction by the trial court of section 8312, Revised Statutes 1889, was erroneous. The statute does not disqualify a surveyor from testifying where the corners of lines dividing lands of adjoining owners are, as they were established and located by the authority of the United States; although such surveyor was not a county or a deputy county surveyor.

— Hon. Paris C. Stepp, Judge. (1) Before the deed from James H. Kerfoot to the First National Bank could take effect or pass the title to the bank, it, by its legally authorized agent, must accept the same, and there is no evidence that R. M. Cook had authority to accept this deed or that it was accepted.

<p> Transferred from Kansas City Court of Appeals. </p> <p> On Motion to Remand. </p>

— Hon. Henry C. Riley, Judge. (1) It was the duty of the court to submit the questions of fact to the jury, and it would have been error on the part of the court to give the peremptory instruction, had contestants failed to introduce a single witness. Schroeder v. Bailroad, 108 Mo. 322; Gregory v. Chambers, 78 Mo. 298; Bryan v. Wear, 4 Mo. 106; Franjee v.' St. Louis, 110 Mo. 516; Young v. RidenbaugJi, 67 Mo. 586; Norton v. Paxton, 110 Mo. 456.

— Hon. Henry O. Riley, Judge. (1) Harrison was a competent witness, and the court erred in refusing his testimony. R. S. 1889, secs. 3422 and 8918; Mississippi Co. v. Voioels, 101 Mo. 225; Fink v. Hay, 42 Mo. 622. (2) The court erred in admitting in evidence the will of Whitcomb and the deed from Geo. E. Whitcomb to Deal and the testimony of Deal relative thereto.

Jambs H. Lay, Judge. (1) The petition does not state a cause of action against these defendants and the court erred in admitting any evidence thereunder over defendant’s objections.

— Hon. A. M. Woodson, Judge. (1) The right was expressly left in parol. No deed was made or promised, and defendant refused to make one, if the subject was mentioned. Cook’s right was a mere license revocable at will in the very nature of the case. Railroad v. Stock Yards, 120 Mo. 563; Pitsman v. Boyce, 111 Mo. 396; Ruhr v. Dean, 26 Mo. 116; Desloge v. Pearce, 38 Mo. 588; Allen v. Mansfield, 82 Mo. 695. (2) If the contract was uncertain, it can not be enforced in equity.

Louis Court of Criminal Correction. — Hon. James R. Claiborne, Judge. (1) This being a constitutional question, the subject is open to examination notwithstanding the decision in the case of Murnane v. St. Louis, 123 Mo. 479; Railroad y. Morgan Co. Ct., 53 Mo. 156. (2) The decision in Murnane v. St. Louis is erroneous. (3) The boulevard law is constitutional.

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. (1) No rule of law is better settled than that the negligence proved must conform to that charged in the petition ; and a fortiori, that if the plaintiff fails to prove the negligence alleged against the defendant, a demurrer to the evidence should be sustained.

<p>The ease of Gannon v. Laclede Gas Light Company, ante p. 502, followed,, as controlling this.</p>

Mandamus. The questions presented for decision in this suit are quite simple. They are the following: (1) Has the city of St. Louis given its consent or permission to the National Subway Company of Missouri, its successors or assigns, to exercise the franchise granted to it by the State?

— Hon. William S. Herndon, Judge. (1) The only point involved in this appeal is whether or not the vote of two thirds of the qualified voters in Lee and Waldron townships, in favor of the proposition, authorized the increase of taxation in said townships for road purposes, or whether the provisions of article III of chapter 140 of the Revised Statutes of 1889 violate the terms of sections 11 and 12 of article X of the Constitution of Missouri.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. The ordinance of the city of St. Louis providing that when a physician or surgeon shall be called on by the coroner to conduct a post mortem examination, the mayor shall be authorized to allow such physician or surgeon a fee not exceeding $25 which shall be paid out of the treasury in the usual manner, creates an indebtedness against the city in favor of a physician or surgeon employed in the manner and for the purposes…

— Hon. Benjamin E. Turner, Judge. (1) Where the formal execution of a will is proved and the subscribing witnesses testify to the proper age and sanity of the testator, the law presumes that he was possessed of testamentary capacity, and without substantial evidence to the contrary the court should not submit the issue to a jury. McFadin v. Catron, 138 Mo. 197; Couch v. Gentry, 113 Mo. 248.

— Hon. Andrew Ellison, Judge. (1) To make a contract, the parties thereto must have knowledge thereof, the minds of the parties must meet, and “if from all the evidence in the case it is left in doubt whether the contract was concluded or not a court of equity will not grant specific relief.” Strange v. Crowley, 91 Mo. 295; Taylor v. Williams, 45 Mo. 86; Pomroy’s Spec. Perp., sec. 58.

— Hon. E. J. Broaddus, Judge. (1) There must be a person in esse to receive a conveyance in order make a deed good of an immediate estate. On April 12, 1889, respondent was not a person in esse. 3 Wash on Real Prop. [5 Ed.] 282; Arthur v. Weston, 22 Mo. 378; Thomas v. Wyatt, 25 Mo. 24; Bouthitt v. Stinson, 63 Mo. 268; 2 Blackstone’s Com. [Chitty’s Ed.] 296.

Paris C. Stepp, Judge. (1) In the description of lands fixed monuments or boundaries control distances and quantity. If the field was sold then the fact that it did or did not make sixty-four feet five inches off of lot 12 was immaterial.. 2 Wash, on Real Prop. [Ed. 1862] 631; Harding v. Wright, 119 Mo. 1; Myers v. St. Louis, 82 Mo. 367; Smith v. Catlin Co., 117 Mo. 438; West v. Bretelle, 115 Mo. 653; Whittelsey v. Kellogg, 28 Mo. 404; Orrickv. Bower, 29 Mo. 210.

<p>Appeal from Buchanan Circuit Court. — Hon. A. M. Woodson, Judge.</p>

— Hon. Paris C. Stepp, Judge. (1) The statute of frauds could not be relied on as a defense, for the reason that it was not specially pleaded. It is true that this court has recently held that the statute of frauds need not be specially pleaded where the answer is a general denial, but that is not the case here. The answer denies every allegation, “except what is specially admitted or explained,” which this court has held does not constitute a general denial.

— Hon. Phineas H. Holcomb, Special Judge. (1) An express trust ean not be proved by parol evidence, but only by a writing executed by the parties to be charged as trustees. R. S. 1889, sec. 5184; 1 Perry on Trusts, sec. 79; Woodford v. Stephens, 51 Mo.443. (2) There is no evidence that E. W. andN. B. Coleman or either of them ever executed any written memorandum or declaration whatever tending to prove or establish any trust in or to the land in controversy.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) The claim of plaintiff was liquidated, ascertained and undisputed. Payment of only part thereof is not payment of the whole, and plaintiff can maintain its action for the balance, and have the justness of defendant’s counter-claim inquired into, notwithstanding a formal receipt in full.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. The alleged errors assigned by the .defendant in his motion for new trial, can not be considered by this court, for the reason that the motion for new trial is not properly preserved and incorporated in the bill of exceptions.

— Hon. John O. Lamson, Judge. (1) The cross-examination of the defendant’s wife, Mrs. South, on facts not referred to in her testimony in chief, was error for which the judgment against him should be be reversed under the statute. R. S. 1889, secs. 4218, 6568. (2) The prejudgment of the defendant by the juror, J. B. Maness, as shown by the affidavits of E. D. Snow, P. D. Worley and Melvin Snow should work reversal in this case.

— Hon. John C. Lamson, Judge. (1) There is quite as much ground for argument that Tate was present, aiding and abetting in the assault on Meadows,, as that he had advised and counseled it before. But that there is any substantial evidence of either fact however slight, we deny. State v. Chambers, 87 Mo. 406; State v. Tice, 90 Mo. 112; Union Nat.

— Hon. Andrew Ellison, Judge. (1) If this indictment was found without evidence, as alleged in the motion to quash, then the action of the lower court in quashing said indictment was proper. The evidence is not called for or preserved in the bill of exceptions.' It therefore follows that this court has not before it, the case on which the lower court passed.

— Hon. Argus Cox, Special Judge. (1) The indictment fails to charge defendant with “feloniously and burglariously bursting and. breaking” as required by statute. And does not allege that the smokehouse was then and there situated, or then and there being a building within the curtilage of the dwelling house of the said W. E. Thrower. And does not allege that the building broken into did not form a part of the dwelling house.

— Hon. John W. Wofford, Judge. (1) The instructions given are complained of, but they are such as have met with the approval of this court. Practically the identical instructions have been passed.upon by this court. State v. Smith, 114 Mo. 406. (2) The instructions refused were properly refused, (a) There is no evidence in the ease upon which to give an instruction for manslaughter in the second degree. In fact, defendant’s testimony is along the line of self-defense.