Volume 147 — Missouri Reports

Quo Warranto. (1) Municipal corporations in this country can only be created by legislative enactment. ITence it follows, that the county court of St. Louis county in declaring, by means of its so-called order of April 20, 1896, the city of Webster Groves incorporated was performing a purely ministerial or legislative function.

.Appeal from Pulaski Circuit Court. — Hon. L. B. Woodside, Judge. (1) The witness, James Shelton, being a co-defendant, jointly indicted for the same offense, was not subject to cross-examination except as to matters referred to in his direct examination. R. S. 1869, sec. 4218; State v. Chamberlain, 89 Mo. 129; Kelley’s Grim. Law [2 Ed.], sec. 269. (2) The court should have granted defendant a new trial. The conduct of the State’s counsel, W. IT.

— Hon. John W. . Wohford, Judge. (1) The indictment in this cause is fatally defective, in that it does not sufficiently charge the defendant with a public offense, nowhere sufficiently connects the defendant with the act complained of, but is vague, indefinite and repugnant. Kelly’s Grim, Law, 89; State v. Rector, 126 Mo. 328; State v. Herrell, 97 Mo. 105; State v. Foster, 25 Mo. 324.

<p>Appeal by State: information quashed. No appeal lies from a judgment quashing an information.</p>

Andrew Ellison, Judge! (1) The court takes the view and declares to the jury that excitement and agitation in the mind of the defendant, and a heated state of the blood produced by lawful provocation, could only be considered in reducing the homicide-from murder in the first degree to that of murder iu the second degree.

— Hon. R. E. Culver, Special Judge. (1) The Honorable Romulus E. Culver, judge of the criminal court of Buchanan county, had no jurisdiction or authority of law or qualification to try said case. He was, at the time of the trial, judge of the criminal court of Buchanan county. That court was established in 1885. The-act establishing it is found in the Revised Statutes,at page 2208. The amendment to that act, approved March 1, 1897,. is unconstitutional and void.

Louis Gity Circuit Court. — Hon. William Zachritz, Judge. (1) The record proper is in regular shape and the ease is shown to have been impartially and legally tried. The indictment correctly charges the offense. The evidence was ample to convict. Nor was an error committed in the rulings of the court upon its admission. The instructions were all that is required by law.

— Hon. L. B. Woodside, . Judge. (1) We are unable to appreciate the force of defendant’s motion to quash the indictment. It sets out a description of the property, and alleges it to have been stolen. It charges. the act to have been committed by the defendant feloniously,, and alleges ownership and value, as required.

<p>Appeal from Olay Circuit Court. — Hon. E. J. Broaddus, Judge.</p> <p>(3) Tbe evidence does not sufficiently prove tbe venue. Tbis in itself is ground for reversal. State v. Meyers, 64 Mo. 190; State v. Gordon, 4 Mo. 376; State v. Miller, 71 Mo. 89; State v. Hughes, 71 Mo. 833; State v. McGinniss, 74 Mo. 245; State v. Washburn, 48 Mo. 240; State v. Pennington, 124 Mo. 388; State v. Schuerman, 70 Mo. App. 518. (2) “Premeditation,” is a necessary element of the crime of murder, and it is the duty of the court to define all the terms of the crime with which the defendant stands charged, to the jury, by ample instructions. And such omission is fatal to this judgment and warrants a reversal. State v. Harris, 76 Mo. 361; State v. Wieners, 66 Mo. 25. (3) “Premeditation and deliberation,” are not synonymous terms, therefore to define the one, renders no aid to the proper understanding of the other. State v. Wieners, 66 Mo. 25. (4) The court should give all necessary instructions on behalf of the defendant, and a failure to cover the entire phase of the case will constitute reversible error. State v. Sharp, 106 Mo. 106; State v. Matthews, 20 Mo. 55; State v. Nelson, 108 Mo. 124; State v. Heinz, 66 Mo. App. 135; Laws 1895, p. 161, amending section 4208, E. S.. 1889.</p> <p>(1) The evidence sufficiently shows the venue. Nnderhill on Crim. Ev. (1898), sec. 21; State v. Pennington, 124 Mo. 388; State v. Forrester, 63 Mo. App. 530; State v. Sanders, 106 Mo. 188; State v. Hill, 96 Mo. 351; State v. West, 69 Mo. 401. The court will take judicial notice of the fact that a mile northeast of Prathersville would be in Clay countv, and the jury so found under proper instructions. State v. Pennington, 124 Mo. 388; Nnderhill on Crim. Ev. (1898), sec. 21. (2) We concede that premeditation is an element in the crime of murder and that the court should define the term. In this case this element is included by the court in the instructions given. State v. Wieners, 66 Mo. 1; State v. Jones, 78 Mo. 278; State v. Talbot, 73 Mo. 347; State v. Moxley, 102 Mo. 374.</p>

— Hour. P. C. Stepp, Judge. The indictment is insufficient, in that it does not charge that the jail was the dwelling house of any person, that is, there is no ownership alleged — this is necessary. Wharton’s Precedents and PL of Indictments, sec. 389; Wharton’s Crim. Law [8 Ed.], sec. 841.

— IIon. Richard Eield, J udge. (1) The plaintiff' did not keep and perform the conditions of the contract upon his part, and should not be permitted to recover thereon. There was a mortgage for $30,000 upon the land. It was necessary that this should be discharged, in order that defendant might acquire an unincumbered title to the undivided half interest, which plaintiff contracted to sell him.

— Hon. P. C. Stepp, .Judge. (1) Tbe circumstantial evidence made out a case against the defendant without the dying declarations of the deceased, Nathaniel Starks. It would be a case where the killing could be inferred without anything else appearing. The doctrine laid down in State v. Frazier, 181 Mo. 311, is applicable.

A.ppeal from Jaclcson Circuit Court. — Hon. J. H. Slover, Judge. (1) The English cy pres doctrine has no place in the jurisprudence of this State. The control of American courts of equity over charitable trusts is identical in the theory of its application with their power over other trusts.

Transferred from St. Louis Gourt of Appeals. (1) An association that requires assessments from time to time on death losses, the amount of which is regulated by their age, is, as regards such business, an insurance company. Crimes v. N. W. Legion of Honor, 64 N. W. Rep. 806; State ex rel. v. Merchants Ex., 72 Mo. 158; Bauer v. Samson Lodge K. of P., 15 Ins. Law Jour. 81; Supreme Lodge K. of P. v. Schmidt, 98 Ind. 374.

— TIon. James H. -Lay, Judge. Plaintiff’s instructions in this case were as follows: “1.

— Hon. W. W. Wood, Judge. (1) Under plaintiff’s own admissions, the undisputed testimony, and the physical facts, this court should, as a matter of law, declare that plaintiff was guilty ’of negligence directly contributing to her own injury, and is not entitled to recover.

— Hon. W. N. Evans, Judge. We take tbe position that the date of plea of guilty or conviction is the date to govern and not the date of sentence. See Session Acts 1897, p. 123. It will be noticed that the statute uses the word “conviction” and not “sentence” and Anderson’s Law Dictionary, page 256, says “conviction” is used to designate a particular stage of criminal prosecution triable by a jury.

Louis Giiy Circuit Court.- — -Hon. James E. Withrow, Judge. (1) The deed from O’Elahertv to Meegan, under which all parties claim title, should be given such construction as will effectuate the intent of the parties thereto, and to that end all its parts should be considered in gathering its meaning, as well as the circumstances under and the purposes for which it was made; and the construction given to it must be reasonable, so as to fairly give effect to its intent.

— Hon. George E. Longan, Judge. (1) Under tlie rule announced and adopted by this court in Bell v. Campbell, 123 Mo. 1, the threats of Dyer to prosecute plaintiffs constituted duress.

— Hon. E. L. Soarritt, Judge. (1) The alleged judgment of the circuit court of June 0, 1892, purporting to bar interpleader, was not a “final” judgment in law, but an interlocutory order. Interpleader’s rights to his money in the custody of garnishee, have never been adjudicated by due process of law; and inter-pleader’s motion to set aside the judgment of the court below reinstating such order in bar was erroneously denied.

— Hon. James T. • Neville, Judge. (1) A homesteader or preemptioner can make a valid mortgage or deed of trust upon his interest in the land which he occupies prior to final proof or commutation, a mortgage or deed of trust not being a grant or conveyance or an alienation within the meaning of the homestead and preemption laws of the United States. R. S. U. S., sec. 2291; Lang v. Morey, 42 N. W. Rep. 88; Spies v. Newberg, 37 N. W. Rep. 417; Orr v. Stewart, 7 Pac.

— IIon. Rudolph Hirzel, Judge. (1) Hnder well established rules the delivery or gift of property by a father-in-law to his son-in-law, especially if made soon after marriage, is in law an advancement to the. daughter. In this case there is evidence that the father John Henry Doermann, had in mind making an advancement to his daughter, Louisa, as well as to his son, John. Bridgers v. Hutchins, 11 Ired. 68; AVilson v. AVilson, 18 Ala.

Prohibition. (1) In the determination of the questions involved in this case it must not be forgotten that the regular judge of the circuit was in no way disqualified from finishing the trial of the cause at Carrollton.

— Hon. James H. Slover, Judge. (1) The act of the legislature of first of April, 1893, (Acts of 1893, p. 43), should prevail instead of the park amendment of sixth of June, 1895. Ewing v. Hoblitzelle, 85 Mo. 76; State ex rel. v. ‘Railroad, 117 Mo. 1; State ex rel. v. Field, 99 Mo. 352; Davies v. Los Angeles, 86 Cal. 39.

— Hon. John A. Hockaday, Judge. (1) By section 4470, Revised Statutes 1889, all children of an intestate, who have received in his lifetime any real or personal estate by way of advancement, are required to report said advancements at the time they choose to come into partition with other parceners.

— Hon. George F. Pongan, Judge. (1) The contract or obligation set out in the deed of trust providing for the payment of monthly dues and premiums, and further providing for release and satisfaction at the end of one hundred months, is legal and binding and in harmony with the statutes of Missouri and the by-laws of said association. R. S. 1889, sec. 2813; Lime City Building and Loan Ass’n v. Wagner, 23 N. E. Rep. 689; Sawyer v. Loan and Building Ass’n, 103 Mich. 228.

Louis City Circuit Court. — Hon. P. R. Elit craft, Judge. (1) The note and deed of trust were executed in due form by tbe proper officers of the hardware company, pursuant to authority conferred by the board of directors. The trustee was in possession of the stock of goods from the date of the deed of trust, until dispossessed by the sheriff’s levy. Plaintiff, therefore, has a complete prima facie case.

— IIon. J. O. Lamson, Judge. (1) The contract upon its face narrates the relations and the purposes of the parties, and discloses its own special reasons why the plaintiffs are entitled to specific performance, upon tlieir having invested their money and tlieir exertions in the enterprise in which they united with the defendant.

— -IIon. D. P. Stratton, Judge. (1) The right of a wife to maintain an action for the loss of the consortium of her husband did not exist at common law, and its existence is only recognized in this State by virtue of the recent legislation giving the wife a separate legal existence. Glow v. Okapman, 125 Mo. 101; Nichols v. Nichols, 134 Mo. 187. (2) The loss of society alone is not a right which constitutes within itself an element of damage.

<p>1. Negligence: evidence: ordinance: effect of. The reading in evidence, without objection, of a city ordinance, requiring electric cars to be stopped as soon as possible after the motorman discovers' a vehicle on the track or moving towards it, establishes the fact that such an ordinance had been adopted by the city, but it did not establish its legal effect and binding force upon the railway company. That was a question of law for the court to determine.</p> <p>2. -: -: -: collision: cause of action: necessary proof. A petition charging- an electric railway with negligence, based on a violation of an ordinance requiring the motorman to “keep a vigilant watch for all vehicles on the track or moving toward it, and on the first appearance of danger to such vehicle, to stop the car in the shortest time and space possible,” does not state a cause of action unless it further alleges that the railway company, in consideration of its franchise from the city, undertook and agreed to obey the provisions of said ordinance. The agreement of the railway company to comply with the ordinance created a contractual liability on its part, which did not exist at common law, and without which the city was without power to bind it. The petition, therefore, in such case, must allege such agreement. And that defendant made such agreement, must be proved, or else the injured person does not make out a prima facie case.- Such agreement can not be inferred from the fact that the company was operating its cars oh the streets of the city. *</p> <p>3. -: -: -: police powers. The city does not have the right under its police powers to adopt such an ordinance. Laws controlling the liability of citizens inter sese, must emanate from the Legislature, in whom alone such power is vested by the Constitution.</p>

— Hon. Chas. L. Dobson, Judge. (1) Tbe ordinance by which tbe city sought to extend its limits, was a nullity; it bad no more effect on tbe territory outside of tbe city than if it bad not been passed. Tbe other ordinances have no extra-territorial effect; they were not intended to have it and could not have bad it bad there been such intent. What then?

— How. John A. Hocicaday, Judge. (1) The plaintiff was not entitled to recover in this case because, under the lease in evidence, whose validity is unquestioned here, the plaintiff assumed the risk of fire to the entire plant, whether located on defendant’s land or not. Eailroad v. Eailroad, 108 Ho. 298; Taylor on Landlord and Tenant [5 Ed.], sec. 161; Woodfall on Landlord and Tenant [1 Am.

Transferred from Kansas Gity Gourt of Appeals.- (1) Tbe defendants in error, having asked no damages in their pleadings, and no damages having been allowed or decreed, can not afterward maintain a motion for an ad-ditional judgment for damages. A motion to assess damages may be allowed where damages had been called for by the pleadings and decreed. State ex rel. v. Beck, 36 Mo. App. 117; Hoffelmann v. Franke, 96 Mo. 533; Moore v. Bank, 58 Mo. App. 470.

<p>1. Practice: new trial: four previous trials no bar. A party should not be denied a new trial on the ground that the case had already been tried four times, if prejudicial error was committed against him on the last trial.</p> <p>2. negligence: qualification of motorman: opinion. It is error to permit a witness to state that in his opinion the motorman in charge of the car on which plaintiff was riding at the time he was injured, was jn every way competent and one of the best on the road. He could state the facts showing competency, but not his opinion.</p> <p>3. Practice: error: presumption. Error is presumptively prejudicial to the party against whom it is committed.</p>

Transferred from St. Louis Oourt of Appeals. (1) This section of the ordinance when taken at what it says does not contemplate that any part of the burden of maintenance shall be put upon the property owners, but that they shall pay the cost of reconstruction fairly let, and the city the cost of maintenance; and that both could to the mutual advantage of property owner and city be let at the same time.

— LIon. John A. Ho ok ad ay, Judge. (1) The circuit court erred in charging the defendants personally with the shortage of treasurer Gillespy in his accounts with this fund. Held: that an officer’s bondsmen were only liable for the performance by him of such duties as the law imposes, and not for such duties as individuals might see fit to confer upon him. Fourth.

— Hon. P. O. Stepp, Judge. (1) The court committed a manifest error in overruling defendant’s application for a continuance. It will be conceded tbat in its formal parts the application was sufficient, and it only remains to be considered whether proper diligence had been used, and whether the testimony of the absent witness as set out in the application was material.

<p>1. Indictment: description of wound. It is not necessary in an indictment to describe the wound nor to state upon wliat particular part of the body it was inflicted.</p> <p>2. Juror: competency: opinion as to defendant’s guilt. A juror stated that he had a conditional opinion, yet his evidence on his voir dire clearly demonstrated that he had not conversed with any witness or with any person who claimed to know the facts, but that his impression was obtained from newspaper reports and public rumor, and was not such as to prevent him from returning a fair and impartial verdict. Held that the juror was not incompetent.</p> <p>3. -: -: unchallenged. If no challenge is made of a juror at the time of his acceptance, defendant can not afterward complain of his incompeteney.</p> <p>4. Insanity: opinion op non-expert witnesses. Non-expert witnesses may give their opinions as to sanity or insanity of a person when they first disclose the facts on which their opinion is based.</p> <p>5. -: murder in second degree. Where the only defense is defendant’s insanity, and the evidence shows that the homicide was without provocation, and had been deliberately planned, no instruction for murder in the second degree should he given.</p>

Louis City Circuit Court. — EIon. William Zaci-iritz, Judge. The indictment uses the word “ballot” and the statute the words “ballot paper.” Appellant maintains that there is a vast and vital difference between these terms.

— Hon. W. S. Stockwell, Special Judge. (1) Defendant’s seventh instruction should have been given. In a case of this character, where the sympathies and prejudices of the jury are naturally on the side of the prosecution, the court should declare in clear and unmistakable terms that the accused is not bound to prove his innocence. No other instruction embodying this proposition was given. The refusal of this instruction was, therefore, reversible error.

— Hon. William S. Herndon, Judge. (1) The court erred in admitting and refusing to strike out the testimony of witnesses Whiteley and Dunagan, “That the place whore the shooting occurred was within Platte county.” That was a fact for the jury to find. (2) The court erred in admitting, over objections of defendant, the ■dying declarations, because no proper ground was laid, and because they were incompetent, irrelevant and fragmentary.

<p>Appeal from 81. Louis City Circuit Court. — Hof. John M. Wood, Judge.</p>

Louis City Circuit Court. — TIon. Leroy B. Valliant, Judge. (1) The statements and answers in the application are warranties, and the court erred in holding that such statements were only representations. Planford v. Mass. Ben., 122 Mo. 58; Whitmore v. Sup. Lodge, 100 Mo. 47; Jacobs v. Omaha Life, 142 Mo. 49; Haynie v. Knights Templar, 139 Mo. 416; Sparks v. Knights Templar, 61 Mo. App. 109; Theobald v. Supreme Lodge, 59 Mo. App. 87; Richards v. Ins. Oo., 68 Mo. App. 585.

Transferred from Kansas City Court of Appeals. (1) If the contractors were at any time paid by the school district in excess of the eighty per cent as provided by the contract, the sureties on the bond were released. Evans v. Graden, 125 Mo. 77; Taylor v. Jeter, 23 Mo. 250; 2 Brandt Suretyship and Guaranty, sec. 397; Burley v. Hitt, 54 Mo. App. 275. (2) One who sues on a contract made for his benefit can have no greater rights than the person to whom the promise was made.

— Hon. James T. Neville, Judge. There was no consideration paid by the defendant for the deed, and the facts and circumstances proven and surrounding tbe transaction, establish fraud on the part of the defendant, in the procurement of the deed, and it should be set aside and the land restored to the appellants, heirs of the grantor in said deed. Dickson v. Kempinsky, 96 Mo. 252.

— Hon. Richard Field, Judge. (1) The possession of Tilomas L. Gorbam and his grantees is the possession of a life estate by curtesy by marriage with Sarah F. Gorham and the interest of the appellant is her fee in remainder, and the life tenants’ possession is not and can not be adverse to the remainderman. -Rumsey v. Otis, 133 Mo. 85; Dyer v. Witler, 89 Mo. 81; Sutton v. Casseleggi, 11 Mo. 397.

— Hon. James T. . Neville, Judge. (1) Tbe deed was made and delivered to Mrs. Nunn by Meigban, and recorded before judgment was obtained by Perkins against Meigban. Hence, tbe complete legal title was vested in Mrs. Nunn; and tbe deed will stand unless set aside for tbe causes alleged in tbe petition. Parker v. Bank, 97 Mo. 132; Caffee v. Smith, 101 Mo. 233. (2) Eraud may be inferred ; but this does not mean that it may be assumed.

— Hon. Reuben E. Roy, Judge. (1) Tbe court committed reversible error in overruling plaintiff’s motion to strike out defendant’s answer. It was not averred in tbe answer that plaintiff participated in tbe acts of alleged coercion by defendant Daniel of bis wife Josephine in tbe execution of tbe deed of trust to Thomas Cocke, nor that plaintiff bad any knowledge of such acts. Therefore it should not be affected by them. Perkins v. Bakrow, 45 Mo.

Transferred from Kansas Gily Court of Appeals (1) Tbe court bas jurisdiction of these cases because tbe plaintiff’s title is directly involved. That is tbe only question in tbe case. To so bold would not overrule tbe former rulings of tbis court. (2) To tbe plaintiff there is involved over $4,000 in tbe question presented by tbis record.

— ITon. J. H. Slover, Judge. (1) The case of Lynch v. Donnell, 104 Mo. 519, having been by a bill in equity, and having been submitted to the Supreme Court for review on its merits, the decision thereon and judgment dismissing the bill had the force and effect of a judgment at law, and was, therefore, res ad judicata as to all matters in issue therein. 21 Am. and Eng. Ency. of Law, 272; Railroad v. Levy, 17 Mo. App. 507; Offut v. John, 8 Mo. 120; Laffoon v. Eretwell, 24 Mo.

<p> Transferred from Kansas Oily Oourt of Appeals. </p>

— Hon. W. N. Evans, Appellant has not complied with rules 11, 12 and 18 of this court and has no standing in this court, and we ash that the appeal be dismissed or judgment of the trial court be affirmed. The court will not look to the transcript, but there must be a clear and concise statement of the evidence. Walser v. Wear, 128 Mo. 652.

<p>1. County Court: petition to build jail: designating time of election. A county court is not justified, in failing to order an election to increase the county debt for the purpose of building a county jail, simply because the petition to the court designates the time within which the petitioners wish the election to be held. Such request does not divest the court of its authority to fix the time.</p> <p>2. -: -: ministerial discretion. The discretion of the court to fix the time for such election, is purely ministerial. And when the court in the exercise of its jurisdictional functions, has found that all the jurisdictional facts are set out in the petition and those facts have been made to appear, it can not withhold its ministerial discretion.</p> <p>3. -: -: PRACTICE: DEMURRER: ADMISSION: PRESUMPTION. In a proceeding by mandamus to compel the county court to order an election to increase the county debt for the purpose of building a jail, the county court, by demurring to the alternative writ on the ground that it does not state a cause of action, admits the facts therein set out, namely, “that the petitioners before the county court were qualified voters of the county and taxpayers therein,” and it can not nullify that admission by invoking the presumption that the eourt did its duty and acted correctly in making an order refusing to order the election, and that it must be inferred from that order, as a part of such presumption, that the court thereby found that the petitioners were not qualified voters. In the face of such demurrer, no such presumption can be invoked.</p>

— TIon. John G. Wear, Judge. (1) By tbe assignments tbe plaintiffs acquired title to tbe debts assigned, subject to any defense tbe debtor might have against tbe assignor “at the time of bis being notified of the assignment.” If prior thereto, the debtor had paid the assignor, it was an affirmative matter of defense. R. S. 1889, secs. 2390 and 8161; Rice v. McEarland, 34 Mo. App. 404; Bartlett v. Eddy, 49 Mo. App. 32; Murdock v. Einney, 21 Mo. 139; Ins.

Louis City Circuit Court. — Hon. Pembrook R. Elitcraft, Judge. (1) This court upon an appeal from a judgment granting a new trial, will only consider the correctness of the grounds specified in writing by the trial judge for sustaining tbe motion for a new trial. If they are unsound this court will reverse and direct tbe trial court to enter up judgment on tbe verdict.

Louis City Circuit Court. — Hon. Leroy B. Vauliant, Judge. (1) Trial courts can only grant new trials on tbeir own motion, or otherwise than on motion of the proper party; “Eirst, where the triers of the fact shall have erred in a matter of law; second, where the jury shall be guilty of misconduct,” The giving of instructions irregularly does not come within this statutory authority. R. S. 1889, secs. 2210 and 2211; State ex rel. v. Adams, 81 Mo. 316.