Volume 160 — Missouri Reports

— Hon. Henry C. Riley, ¿Judge. (1) The homestead is not subject to sale in any event during its continuance; neither the particular or general estate during the life of the particular estate. R. S. 1879, sec. 2693; Broyles v. Cox, 54 S. W. 488; In re Powell’s Estate, 57 S. W. 717; Bank v. Guthrey, 127 Mo. 196.

— Hon* G. B. McAfee, Judge. (1) Instruction 2 does not declare the law properly, since it makes the defendant the keeper of a bawdy house if women boarded with her and paid defendant a part of the money received by them from men for sexual intercourse whether the defendant had knowledge or not of their conduct with men; or had knowledge of how and for what purpose the money was obtained.

<p>Indictment: fame pretense. For the reasons given in State v. Vandenburg, 159 Mo. 230, decided on December 18, 1900, the indictment in this ease is held sufficient to charge defendant with having obtained a promissory note for $30 by means of false pretenses.</p>

Louis City Circuit Court- — Hon. Jacob Klein, Judge. (1) The trial court abused its discretion in refusing ■appellants a new trial on the ground of newly-discovered evidence. Held: as we think it should in this, that the improbability alone of the alleged newly-discovered evidence justified the trial court’s action in overruling the motion for a new trial: Schoenlan v. Friese, 14 Mo.

Louis Court of Criminal Correction — Hon. Willis H. Glark, Judge. (1) The act of March 5, 1897, is so ambiguous and defective in its terms as to convey no definite or certain meaning as to the duties and liabilities of the corporation or its agent and officers, and is therefore void. State v. Partlow, 91 N. C. 550, 49 Am. Rep. 652; Bishop on Stat. Crimes, sec. 41; Johnson v. State, 100 Ala. 32, 14 So. Rep. 629.

Lonis Court of Criminal Correction. — Hon. David Murphy, Judge. The St. Louis Court of Criminal Correction is a statutory-court, and there is no statute which permits the plaintiff in a case pending in said court to file a bill of exceptions eight months after the discharge of the defendant. R. S. 1899,, p. 2544; Ex parte O’Brien, 127 Mo. 487.

<p>Appeal from Buchanan Criminal Court. — Mon. B. J. Casteel, Judge.</p>

— Hon. P. G. Stepp, Judge. (1) This proceeding lies to test the right of school directors to hold their office. State ex rel. v. Eose, 84 Mo. 198. And is properly brought by relators. Sec. 4457, E. S. 1899. (2) Being an extraordinary proceeding, and our statute in relation to quo warranto being silent as to the mode of procedure, the common law must be looked to as our guide.

— Hon. E. J. Broaddus, Judge. (1) The law will not suffer a wrong or injury to be done to the person of another, or to his legal rights or vested interests, without furnishing the means or remedy to redress the same.

— Horn. E. L. Scarrilt, Judge. (1) If tbe mortgagee knowingly permitted the mortgagor to remain in possession of the mortgaged property, to sell the same in the ordinary course, and use the proceeds to pay other debts and for his own purposes, and he did not pay the proceeds over to the mortgagee, as required by the terms of the mortgage, this rendered the mortgage fraudulent and void as against creditors of the mortgagor. Russell v. Rutherford, 58 Mo.

Transferred from Kansas City Court of Appeals. Judge Culver had no authority to hold said term of said court or jurisdiction to try said cause, because said act approved March 1, 1897, Laws 1897, p. 79, is unconstitutional and void. It is an attempt by a general law to amend section 3 of special act creating a criminal court for Buchanan county, approved March 24, 1895. R. S. 1889, pp. 2208-2210. It violates section 53, paragraph 18, article 4, Constitution.

<p>Appeals: constitutionai question: how raised. ' A constitutional question is not raised by the mere statement in the reply of plaintiff, against whom judgment was rendered, that a statute that requires a city to sell the exclusive right to construct and operate a waterworks plant to the highest bidder at public auction, is unconstitutional, and void. That point must be raised by some of the instructions, or it must in some other way affirmatively appear that the determination of the constitutional question is necessary to a decision of the case, and that it was determined in the court below that the statute was in violation of the Constitution, and that that decision was adverse to the rights of the party who appeals.</p>

— Hon. E. M. Hughes, Judge. (1) Hncommunieated threats may be considered by the jury -as a circumstance tending to show that the deceased made an attack State v. Elkins, 63 Mo. 165; State v. Alexander, 66 Mo. 118; State v. Lee, 17 Mo. 167; State v. Sloan, 17 Mo. 611; State v. Keene, 50 Mo. 309; State v. Hayden, 83 Mo. 198; State v. Downs, 91 Mo. 21; State v. Harrod, 102 Mo. 609; State v. Bailey, 91 Mo. 316; State v. McNally, 87 Mo. 619; State v. Hopper, 112 Mo. 178;…

— Hon. H. O. Pepper, Judge. (1) Tbe indictment in this case is bad for the reason it does not state “the nature and cause of the accusation” against defendant. An accused person is presumed to be innocent of any crime charged against him, and wholly ignorant of any of the circumstances pertaining thereto. The business in which Brown & Son were engaged should have been stated in the indictment, and also that the defendant was authorized to receive money.

— Hon. Jno. G. Wear, J udge. (1) The Constitution is imperative to the effect that the stock and bonded indebtedness of a corporation shall not be increased without first giving sixty days’ public… Held: the last insertion to be not less than one, nor more than six days before the meeting. R. S. 1889, secs. 963 and 2500.

Transferred from Kansas City Court of Appeals. (1) The consideration for the release was not, on the conceded facts, open to question, in this case but was conclusively presumed, (a) This is true, first, because the release was under seal.

Certiorari. (1) Taxes are burdens or charges imposed by the legislative power of a State to raise money for public purposes, that is, for the support of the government and for all public needs. Cooley on Taxation (2 Ed.), p. 1; State ex rel. v. Switzler, 143 Mo. 287; Glasgow v. Rowse, 43 Mo. 479; Railroad v. Maguire, 49 Mo. 500; Sheehan v. Good Samaritan Hospital, 50 Mo. 158; Heal v. Mississippi Co., 107 Mo. 470.

Habeas Corpus. (1) This court bas decided that it will at any stage of criminal proceedings, and even after judgment, interfere by means of tbe writ of babeas corpus to look into and investigate tbe constitutionality of a statute. Ex Parte Smith, 1-35 Mo. 223.

— Hon. Wm. 8. Herndon, Judge. (1) The rule in Shelley’s case has long since been abrogated, and is no longer considered as authority in construing deeds and wills. Riggins v. McClelland, 84 Mo. 33; Tesson v. Newman, 162 Mo. 195. (2) Revised Statutes 1889, sec. 8836, reduces all estates in fee-tail to a life estate in the first taker, as a life tenant, and the fee in the remainderman.

<p>1. Elections: selection'or delegates: by mass-meeting: rescinding action or committee. Where a legal quorum of the committee of a political party in a congressional district in the city of St. Louis met and called a convention, ordering that delegates thereto be selected by mass-meetings, due notice thereof and of the convention being given, a certificate of nomination by the convention composed of such delegates, was valid, though the committee had formerly taken a different action as to the method of electing delegates to the nominating convention.</p> <p>2. -: -: -: legal. Under sections 7146 to 7161, Revised Statutes 1899, prescribing the methods to be followed in primary elections held in cities of over 300,000 inhabitants, mass-meetings for the election of delegates to a congressional convention are valid.</p>

<p>1. Elections: certificate of nomination. Where the county central committee divides into two factions, and each attempts to provide for the nomination of a county ticket, the county clerk should certify that the ticket nominated by the primary or convention ordered by a majority of the legally elected county committee, is the party’s ticket for the county.</p> <p>2. -: county committee: alternate. An alternate has no authority to act for his principal at a meeting of the county committee while his principal is piresent and acting in that or another committee meeting of the party.</p> <p>3. --: -: election of committeemen. Where a township committeeman has been duly elected, his predecessor, and the proxy of such predecessor, has no further' authority to act as committeeman from said township.</p>

Mandamus. (1) If it is contended that the general statutes do not apply to the court at Independence, then the statute leaves a discretion in the judge, as the statute (Laws 1879, p. 82, sec. 11) provides: “But if reason exist against both the judges of said court, then such change may be allowed to the circuit court of some contiguous county, unless otherwise disposed of according to law.” Since that time the number of judges has been increased to four, so that we presume…

Louis Court of Criminal Correction. — Hon. Willis H. Glarh, Judge. The act approved April 7, 1897 (Laws 1897, p. 100), is prohibited by sections 1 and 53, art. 4 of the Constitution of Missouri, and section 1, art. 14 of the amendments to the Constitution of the United States, (a) As to violation of amendment 14, Federal Constitution, see: Cooley, Const. Lim.

Louis City Circuit Court. — Hon. H. D. Wood, Judge. (1) The deed from Signiago to Paula Cadematori’s trustee does not create a separate equitable estate in tbe land in ber, because it in no sense excludes tbe interest of ber husband in tbe property eonveyed. Klenke v. Koeltge, 75 Mo. 239; Turner v. Sbaw, 96 Mo. 22;. Deming v. Williams, 26 Conn. 226; Huber v. Huber, 10 Ohio 371; 1 Bishop Married Women, see. 838; Tremmel v. Kleiboldt, 75 Mo. 255.

— Hon. Jno. W. Wofford, Judge. The instructions asked for can find no support in any of the decisions of this court. It matters not what defendant intended to do with the money. That question does not enter into the controversy and constitutes no part of the crime. It is not an element of the crime.

Louis City Circuit Court. — Hon. Jas. E. Withrow, Judge. (1) The facts alleged in the amended petition and admitted in the answers show a perfect legal title in the administrator to the personal property in question, and establish his right to recover.

B. F. Boy, Judge. (1) The evidence shows that Dudley Butler wished to 'give his daughter, Catharine Evans, 40 acres of, land, and that at the same time he refused to deed it to her husband, Thomas W. Evans.

— Hon. John W. Wofford, Judge. (1) The verdict of the jury is against the evidence. (2) The verdict is against the lav?, as declared in the instructions given by the court. (3) (a) The court erred in refusing to give instruction 1 asked by defendant People v. Fong Ah Sing, 64 Cal. 253; State v. Howell, 100 Mo. 664; State v. Taylor, 134 Mo. 152.

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. (1) The court improperly allowed the appellee to file its second amended petition, giving crossings to the defendant at some future date, and should have sustained the appellant’s motion to strike out the clause designated therein. Plaintiff’s instruction numbered four, in so far as it covered the same question, was clearly erroneous. Railroad v. Clark, 121 Mo. 197.

— 3on. B. J. BroadduSj Judge. They got possession of all the land; got defendant’s $400 paid in extinguishing a lien on said land; sued for $100 damages and got judgment for $225 ; in other words, got the land back and got nearly as much money in damages as the defendant was compelled to pay for the land. This is a straight case of getting something for nothing and $225 to boot.

— Eon. E. J. Broaddus,. Judge. (1) Where part of a tract of land is taken in a condemnation proceeding, the measure of damages is the difference between the market value thereof before, and what its-market value will be after the appropriation. Railroad v..

'Appeal from St. Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. (1) Plaintiffs replication shows it had not complied with the law; for this reason appellants’ motion in arrest of judgment should have been sustained. (2) The evidence shows that plaintiff had been for many years, and was at time of trial, doing business as a corporation, through its agent in Missouri, and that it had never pretended to comply with the law.

<p>Appeal from Stoddard Circuit Court. — Hon. J. L. Fort, Judge.</p>

— Hon. E. B. McKee, Judge. (1) Tie instruction in tie nature of a demurrer to tie evidence as against tie defendant Thompson should not have been given. Tie evidence, both for plaintiff and defendant, showed that Thompson as attorney for Graves, was consulted and fully advised of the case.

<p>Indictment: appeal: no bill of exceptions. Where an appeal has been taken from an order sustaining a motion to quash an indictment, but no bill of exceptions is filed, the appeal will be dismissed.</p>

— Hon. L. B. Woodside, Judge. (1) Under the evidence tbe defendant could have only been convicted of petit larceny, as is shown by the evidence. The -property of each owner was located in different places, some in wagons, some in mangers, and Smith’s in the shed loft.

Louis Court of Criminal Correction. — Hon. WHlis H. Ciarle, Judge. (1) The act in question conflicts with the provision of section 28, article 4,- Constitution of Missouri, which provides that no bill “shall contain more than one subject which shall be clearly expressed.” Kansas v. Payne, 71 Mo. 159; State v. Burgdoerfer, 107 Mo. 1.

— Hon. W. N. Evans, Judge. The instruction is erroneous in that it allows the jury to convict if they find that defendant was at the time he married Rosa Buchanan, a married man and had a living wife, without requiring any proof as to who that living wife was, whether the “Sarah” named in the indictment or some other woman.

— Eon. Jno. IF. Wofford, Judge. (1) Evidence of other alleged crimes in the trial of a criminal cause is incompetent; and the testimony in regard to the Hudspeth cattle should have been excluded. Buck v. State, 38 S. W. 993; Shears v. State, 46 N. E. 331. (2) The language of the prosecuting attorney, “This is an alibi defense, the felon’s defense, the thief’s defense,” was improper, and the refusal of the court to direct the jury to disregard the language was error.

— Hon. W. S. Herndon, Judge. (1) The court erred in instructing the commissioners to disregard the present value of the land. The commissioners in this case should set out homestead in the same manner as in the case of executions. R. S. 1899, sec. 3624. In the case of executions the homestead is limited by section 3616, to the value of $1,500, at the time of setting it out, and the commissioners had no right to exceed that value at the time of setting it out.

Louis City Circuit Court. — Hon. H. D. Wood, Judge. (1) At common law and in tbe absence of statute, a broker wlio is privy to a wagering contract is particeps criminiSj, and can not recover for services rendered or losses incurred therein. This is upon the theory that the broker is not an agent, as there can be no agency in the perpetration of a crime or a misdemeanor. Eeam v. Hamilton, 15 Mo.

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. Held: that the publication was not privileged, but completely erred in accepting the answer as a sufficient plea of justification.

— Hon. Jno. W. Wofford, Judge. (1) Applying tbe provisions of tbe statute to tbe facts as contained in tbe record, it will be readily observed that no error was committed by tbe court in overruling tbe defendant’s application for a discharge. State v. Steen, 115 Mo. 474; State v. Copeland, 65 Mo. 497; State v. Ware, 145 Mo. 186. (2) No objection was made to tbe introduction of tbis testimony on tbe part of -tbe defense, and no exceptions likewise saved.

— Hon. Reuben F. Roy, Judge. ' (1) Tbe evidence- substantially tends to show for tbe time being general disablement of testamentary volition at the occasion of the alleged will, combining with symptoms of acquired mental enfeeblement the symptoms of mental perversion. Am. Bible Soc. v. Price, 115 111. 642; Ins. Co. v. Rodel, 95 U. S. 232; Ins. Co. v. Broughton, 109 U. S. 121. (2) Mere eccentricity is not insanity, and yet eccentric feats may be a symptom of insanity.

Louis City Circuit Court. — lion. D. D. Fisher, Judge. (1) Where the injury complained of is the result of the concurrent acts of two persons, each is jointly and severally liable for tbe whole. Shearman & RedfLeld on Negligence (5 Ed.), secs. 31, 39; Hunt v. Railroad, 14 Mo. App. 160; Bridge Co. v. Miller, 138 111. 477; Phosphate Co. v. London, etc^, Dock Co., L. R. 9 Cham Div. 503; Banks v. Railroad, 40 Mo. App. 458; Waller v. Railroad, 59 Mo.

— Eon. A. M. Woodson, Judge. (1) It was error in the trial court, under the pleadings, to permit any evidence (if there was any) tending to show that the release was conditional, as the answer denied the existence of any release. Wright v. Eonda & Higgins, 44 Mo.

Louis City Circuit Oourt. — Hon. Jacob Klein, Judge. (1) The peremptory instruction to find for the defendant, asked at the close of the whole case, brings up the entire evidence for review. Hilz v. Railroad, 101 Mo. 36; Hite v. Railroad, 130 Mo. 132. (2) The condition of the floor was incident to appellant’s business. Respondent assumed all risks of her work arising out of the condition of the floor.

— Hon. Jno. A. Hockaday, Judge., (1) Instruction 2, given upon the request of plaintiff, transfers tbe burden of proof to defendant without requiring the jury to find that the plaintiff was without fault at the time of receiving his injury. This was plain error. Och v. Railroad, 130 Mo. 51; Shafer v. Railroad, 128 Mo. 70; Burnish v. Railroad, 102 Mo. 453; Hipsley v. Railroad, 88 Mo. 352; Lemon v. Chanslor, 68 Mo. 354; Miers v. Railroad, 64 Pa.

— Ron. D. W. Shackleford, Judge. (1) The suit is against the “Merchants Bank of Jefferson City,” while the alleged assessment is against “Merchants Bank.” This is no more defendant’s name than if it had been assessed against the “Savings” or “Jones Bank.” R. S. 1889, secs. 7553, 7555, 7556; Hubbard v. Gilpin, 57 Mo. 441; Abbott v. Lindenbower, 42 Mo. 162; St. Louis v. Wen¡neker, 145 Mo. 239; R. S. 1889, secs. 7679 and 768. (2) The vital point in the case is the assessment.

Louis County Circuit Court. — Hon. . Rudolph Hirzel, Judge. (1) The purchase by an officer of a corporation of corporation property at an execution sale will enure to the benefit of the corporation. McAllen v.Woodlock, 60 Mo. 1Y4; Roberts v. Mosely, 64 Mo. 10Y. (2) Sessions, Johnston, Wm. D. Waters and Frank A. Waters were guilty of fraud in selling the land to the corporation at an over-valuation. Joplin Land Co. v. Case, 104 Mo. 5Y9. (3) The judgment in favor of Wm.

— Hon. W. W. Rucker, Judge. (1) In order to entitle a party to specific performance, tbe contract must be a certain, mutual one, capable of being enforced against either one of the parties. There being no means of enforcing the contract sued on against the plaintiff, it lacked mutuality, and as there was no equity in the bill, it should have been dismissed.

<p>Appellate Practice: no judgment or sentence: motion for rehearing. When the appellate court’s attention is called to the fact, for the first time in a motion for rehearing, that no judgment was rendered against, and no sentence passed upon, defendant in the trial court, the submission of the ease will be set aside, the motion for rehearing denied, and the cause remanded to the trial court with directions to enter up. judgment on the verdict and pass sentence on defendant, as required by law.</p>

— Hon. W. N. Evans, Judge. ; (1) The possession of the defendants would not extend beyond the land actually occupied and inclosed. Crispen v. Hannavan, 50 Mo. 536; Turner v. Hall, 60 Mo. 271; Wilson v. Purl, 148 Mo. 449; Herbst v. Merrifiteld, 133 Mo. 267. (2) The deed admitted in evidence, which is dated September 5, 1870, is void on its face, and conveys no title.

<p>Appeal from St Louis City Circuit Court. — Hon. H. D. Wood, Judge.</p> <p>(1) The court- erred in its instructions to the jury. Barr v. Kansas, 105 Mo. 559 ; Cameron v. Hart, 57 Mo. App. 142; O’Hara v. Aid Soc., 184 Pa. St. 417; Maine Ben. Assn. v. Parks, 81 Me. 79; Whitemore v. K. & L. of H., 100 Mo. 36; Numerich v. K. & L. of H, 3 N. Y. Supp. 552; Cobb v. Ben. Assn., 153 Mass. 176. (2) The court erred in refusing instructions 1, 2, 3 and 4 offered by the defendant. Aloe v, .Life Assn., 147 Mo. 561; Hanford v. Ben. Assn., 122 Mo, 50; Haney v. Indem. Co., 139 Mo. 416; Jacob v. Life Assn., 142 Mo. 49; Richards v. Ins. Co., 68 Mo. App. 585. (3) The office-book of witness- Hr. Barker, showing dates that De Mars visited his office for treatment, was competent testimony; the court erred in excluding it from the jury. Anchor Milling Co. v. Walsh, 108 Mo. 277; Robinson v. Smith, 111 Mo. 205;' Seligman v. Rogers, 113 Mo. 642.</p> <p>(1) The instruction given by the court set forth the same defense as those offered by appellant, and cured any possible error there may have been in refusing the latter. Whittemore v. Supreme Lodge, 100 Mo. 47.' (2) Appellant can not complain of an error in an instruction given by the court, when the instruction asked by appellant contained the same error. Noble v. Blount, 77 Mo. 235; Bettes v. Magoon, 85 Mo. 580; Johnson-Brinkman Co. v. Central Bank, 116 Mo. 559; State to use v. O’Neill, 151 Mo. 81. (3) The Supreme Court will not weigh the evidence and disturb the verdict of the jury, unless there is no evidence at -all upon which to base it. Baum v. Eryrear, 85 Mo. 151; Williams v. Railroad, 109 Mo. 483; James v. Life Ass’n, 148 Mo. 15. (4) (a) In the absence of satisfactory explanation of appellant’s failure to offer the office-book of witness Dr. Barker, as a part of its evidence in chief, there was no error in the refusal of the trial court to admit it in rebuttal. This was the exercise of discretion with which -this court will not interfere. Jackson v. Railroad, 118 Mo. 221. (b) The use made of said book at the trial was, in fact, an introduction in evidence. Charles v. Patch, 87 Mo. 467.</p>