Volume 170 — Missouri Reports

Louis City Circuit Court. — Hon. Franhlin Ferris, Judge. (1) It was the duty of the court to admit all the evidence concerning the acts, conduct and speech of both Cunningham and Toomey which would enable the jury to learn what the true feeling of Toomey was toward Dillerand the court should have instructed the jury as to the value of such testimony in determining the issues submitted to them.

Louis City Circuit Court. — Hoto. Jas. E. Withrow, Judge. (1) It is well settled that when a cause has once been before the appellate court, all matters passed upon by that court are res adjudicata on a second appeal. (2) The defense of estoppel was passed upon on the former appeal. If not, however, still there was no estoppel against plaintiff. State v. Sitlington, 51 Mo. App. 252; Eeichla v. Gruensf elder, 52 Mo. App. 43; Bank v. Frame, 112 Mo. 502.

— Ho». J. P. Butler, Judge. The court erred in giving instruction numbered one on behalf of the State, because said instruction does not contain the elements constituting the crime of grand larceny. An instruction which does not require the jury to find that the goods were taken and carried away with fraudulent and felonious intent, omits an essential element of larceny.

—Hon. Frank E. Burrough, Judge. The only claim to property seized under execution, by a person other than the execution creditor which the statute recognizes, is a claim existing at the time of the levy. R. S. 1889, sec. 4927; R. S. 1899, sec. 3183. The notices show a complete sale and a delivery of possession September 3, 1897, three days before the levy.

Louis City Circuit Court. — Eon. E. D. Wood, Judge.' (1)- Testimony showing that after the shooting the defendant delivered himself up, and what he then said, would be self-serving acts or declarations, and not admissible. State v. Musick, 101 Mo. 274; State v. Smith, 114 Mo. 424; State v. Taylor, 134 Mo. 154; State v. Strong, 153 Mo. 556.

— How. H. G. Pepper, Judge. In this case, we have nothing but the record proper. It is true, a purported bill of exceptions was filed, but it does not bear the signature of the judge. Indeed, if the bill was properly executed, it would be of no avail to defendant, as no exceptions were saved to the giving and refusing of instructions, nor to the action of the court in overruling the motion for a new trial.

Louis City Circuit Court. — How. H. D. Wood, Judge. (1) lipón the discontinuance of proceedings to condemn land for the use of the city of St. Louis, the íand- • owner, the defendant in the condemnation proceedings, is entitled to payment by the city of all the costs .of the ease, including counsel fees.

— Eon. J. G. Lamson, Judge. (1) (a) The evidence shows that at the time of the conveyance G-eorge W. was not seized in fee of the undivided three-sevenths. He had one-seventh by the deed from his mother, and later, in 1896, on the death of his mother, he inherited one-sixth in fee as one of her heirs. These interests of his should have been vested in defendant.

Louis City Circuit Court. — Hon. H. D. Wood, Judge. Held: that a proceeding against two or more reduced to a judgment may be null and void as to one, though good as to all the others. State ex rel. v. Tate, 109 Mo. 265.

Mandamus. (1) At tlie time of- the passage of the statute in question in 1839, the circuit court alone had jurisdiction to try all felonies, and all misdemeanors (except breach of the peace). Laws 1835, pp.'135, 372.

— Ron. W. W. Graves, Judge. (1) The. act contains hut one subject and it is clearly expressed in its title. Section 28, article 4 of the Constitution must be given a reasonable construction. Hannibal v. Marion Co.; 69 M'o. 572; State ex rel. v. Ransone, 73 Mo. 78; State ex rel. v. Shepherd, 74 Mo. 310; State ex rel. v. County Court, 102 Mo. 537; Alleghany County Homes Cases, 77 Pa.

— Son. W. S. Jackson■, Special Judge. (1) Plaintiffs’ petition is without equity, and fails to state any cause of action because: (a) It attempts to force on the defendant a new contract, to which he never assented. Norton v. Bohart, 105 Mo. 631; Fruin v. Railroad, 89 Mo. 405. (b) It attempts to retain the benefits derived from a contract, and to avoid the obligations arising from the contract.

Louis City Circuit Court. — Hon. H. D. Wood, Judge. The indictment is fatally defective and does not state an offense. State v. Phelan, 159 Mo. 122. The indictment follows the language of the statute and sufficiently charges the offense, and is in every wa,y sufficient. The defendant relies upon State v. Phelan, 159 Mo. 122, as his authority for the charge of insufficiency of the indictment.

<p>Appeal from Greene Criminal Court. — Hon. J. J. Gideon, Judge.</p> <p>(1) The information in this case- is good. :It follows the statute, properly charges the crime and informs the defendant of the charge against him. Thus it is amply sufficient.’ State V. Turley, 142 Mo. 403. Nor is the information void from duplicity, as contended by appellant in his motion for a new trial. State v. Wilson, 143 Mo. 334. (-2) Defendant contends that under the law-he could only be c'onvicted of a misdemeanor. This contention'is not well taken. Under the statute under which the defendant was prosecuted, if the value of the property which he attempted to take was more than thirty dollars, he was liable to be convicted of grand larceny; if it was less than thirty dollars, then his punishment could ’only be imprisonment in the county jail not exceeding one year, or by a fine not exceeding one hunded dollars, or by both such fine and imprisonment. State y. Brossler, 139 Mo. 525. The information in this charge was filed and the prosecution based under the provisions of' section 1927, Revised Statutes 1899, or under section 2360, Revised Statutes 1899. The first section makes it a felony for one to, by false pretenses or representations, obtain money or property of another of the value of thirty dollars. The other section places the same penalty and makes an attempt to do the. things charged in the former section a felony. There is no question but that defendant was charged with a felony and properly convicted of a. felony.</p>

— Hon. Argus Cox, Judge. The plea in bar was not sufficient and was properly overruled. The defendant had a right to the possession of the draft to take it to Wright county to have it cashed. Up to the time he cashed it he was carrying out the purpose for which he was entrusted with the draft. A failure to have cashed it on his part would have been a neglect of the duty he assumed when he agreed to take it to Wright county and cash it.

— Hon. Geo. F. Long an, Judge. (1) The complaint here is, that the corporation being dissolved, the defendant Smith, as president and business manager, has fraudulently converted to his own use property and assets of the dissolved corporation, -which under the law he held in trust for the benefit of its creditors; that instead of using said property to pay the creditors he has entered into a fraudulent scheme to place the property beyond the reach of the creditors.

Transferred from. St. Louis Court of Appeals. (1) At the time the informations were filed, no jurisdiction attached to try defendant, because unverified. State v. Bragg, 63 Mo. App. 27; State v. Saymon,-61 Mo. App. 244; R. S. 1899, sec. 2477. (2) Defendant, being a merchant, could not he convicted under the dramshop act. State v. Alexander, 73 Mo. App. 606; Knox City v. Whittaker, 87 Mo. App. 472; State v. Witty, 74 Mo. App. 551; State v. Steele, 84 Mo. App. 318.

— Hon. Jno. W. Wofford, Judge. (1) The indictment in this case does not describe the offense and is insufficient. Held: and yet the game of policy is known to thousands where either of the above games is known to one. The phrase “scheme of drawing in the nature of a lottery” used in section 2219 is not descriptive of policy, but is the enumeration of another offense, separate and distinct from policy. For that reason the disjunctive “or” is used.

— Now. J. L. Fort, Judge. (1) (a) The “board gave notice in two issues of the Daily Citizen, on Thursday and Friday, before Monday, on which the board undertook to hear objections to the said… Held: save the convening and adjourning orders, there is evidence to the effect that defendant and others appeared and presented their complaints. The fact that the board made no orders, either raising or decreasing assessments, does not show that defendant was deprived of a hearing.

— Ho». W. L. Jarrott, Special Judge: The application for a continuance was properly overruled. It states that the witnesses defendant wished to have subpoenaed were all in Sedalia or residents thereof. The application does not show that he made any effort to have the witnesses subpoenaed until the seventh day of the November term of court or on the 11th day of November.

— Hb». J. L. Fort, Judge. I have read the whole record and fail to find any prejudicial error in the action of the trial court in admitting or rejecting testimony. The court properly instructed the jury and there is, in my judgment, no reversible error in the record, and the judgment should be affirmed.

Buchanan Criminal Court. — Hon. Benj. J. Casteel, Judge. Held: was a city of over 100,000. They based their right to the panel of forty-seven jurors upon sections 2621 and 2622, Revised Statutes 1899,.which motion was overruled and excepted to by the defendants. They also excepted to the action of the court requiring them to select a panel óf twelve from the 'panel of forty.

— Hon. P. C. Stepp, Judge. (1) In the instruction given on the part of the State, over the objection of the defendant, the court, after attempting to define the offense charged in the indictment, directs the jury that if they find the defendant guilty they will assess his punishment at imprisonment in the penitentiary for a term not less than five years, nor more than ten years. This instruction constituted reversible error.

<p>1. Appellate Jurisdiction: mechanic’s lien: devise to trustees: suit AGAINST EXECUTORS. In a suit involving less than $4,500, brought against the contractor and executors only, to 'establish a mechanic’s lien upon land which has been devised to trustees for the use of certain beneficiaries, the appeal is not to the Supreme Court. The question of whether the executors or trustees are the owners does not so involve the title to real estate as to give the Supreme Court jurisdiction. That is only incidentally involved.</p> <p>-: title to land. The Supreme Court has jurisdiction of appeals on the ground that title to real estate is involved only when the judgment itself affects the title to land, and not simply when that judgment is adjudged to be a lien on land.</p>

— Ron. D. H. Eby. Judge. (1) The common-law rule relating to survivor-ship has been abolished except as to husband, wife and trustees. It requires an express declaration to create a joint tenancy. The effect of the decree of the circuit court is to retain and apply the ancient rule. R. S. 1899, sec. 4600; Rodney v. Landau, 104 Mo. 251.

<p>1. Adverse Possession: license: fences built “eor convenience.” A hedge was set twenty feet back from the division line because a strip that wide had been granted for a public road. This road was afterwards vacated, and thereupon defendant built his fenees across the strip and joined to the hedge. Held, if the defendant by permission or under license of the owner of the hedge built his fences to join thereto and thereby incidentally included the strip, that permission or license was revocable at any time, and the possession begun thereunder is presumed to have continued under that license and in subordination to the title of the owner of the hedge until open assertion by defendant to the contrary and notice thereof brought home to the other. But, an instruction that says that if the defendant built the fences across the strip “as a matter of convenience” then “the enjoyment of that convenience” was revocable, etc., and that, “if the jury believe that the adjacent landowners fenced across the strip as a matter of convenience,” does not require the jury to find that the fences were joined to the hedge by the permission of or under a license from the owner.</p> <p>2. Instruction: ambiguous: use oe participle. The use of the word “failing” in the clause, “and failing to show the finding should be for the plaintiff,” instead of “if he has failed,” etc., is not of itself reversible error as being a declaration by the court that defendant has failed to so show, but an instruction less liable to that interpretation should have been given.</p>

— Eon. Gallatin Craig, Judge. (1) The badges of private corporations are: (a) Formed by voluntary association, tbe court may exclude some lands, but tbe limits are fixed by tbe signers of tbe articles; no inquiry as to practicability; (b) Corporators, sbarebolders, property, votes, not men; (c) Limited as to time, public corporations perpetual; (d) Divested of all state and county supervision, not a political subdivision of tbe State.

Carroll Circuit Court. — Hon. John P. Butler, Judge. (1) Fraudulent misrepresentation does not furnish. ground for equitable relief, unless it formed a material inducement to the agreement sought to be rescinded. Powell v. Adams, 98 Mo. 598; Wannell v, Kem, 57 Mo. 478.

■Appeal from Pettis Circuit Court . — Hon. Geo. F. Lon' gan, Judge. Tire court erred in refusing to' instruct the jury to find for the defendant. There was no evidence to sustain the verdict rendered. The plaintiff was married to her present .husband in the year 1849. Within a year thereafter there was horn of this union a child which lived. The interest ■ she ■ now claims in the land descended from her father who died in October, 1868.

— Ron. David H. Ely, Judge. (1) The action for contribution was originally of exclusive equitable jurisdiction. When equity possessed jurisdiction anterior to a remedy at law, it is not ousted of such jurisdiction unless the statute giving the legal remedy expressly precludes the interposition of ■equity. Bispham’s Equity, p. 387, secs. 328, 329; Clark v. Admr. of Henry, 9 Mo. 201; Purdy v. Gault, 19 Mo.

— Wo«. Jas. T. Neville, Judge. (1) To determine the estate conveyed the intention of the parties must he gathered from the language used in- the whole instrument. Walton v. Drumtra, 152 Mo. 489. (2) Under the Missouri statute, sections 907 and 4590, and the language employed, the granting clause of this deed conveys the fee-simple title to the land described. Green v. Sutton, 50 Mo. 192.

Circnit Court. — Ron. Jno. A. 'Rockaday, Judge. (1) A sale under a judgment which has been paid passes no title even to an innocent purchaser. Huff v. Morton, 83 Mo. 402. (2) .If a purchaser at sheriff's sale practices any deceit or is guilty of any trick or device for the purpose of getting the property at less than its value, the sale will be set aside. Stewart v. Nelson, 25 Mo. 309; Keiser v. Caramon, 95 Mo. 217.

Transferred from St. Louis Court of Appeals. (1) The second defense set up by the answer was the only one submitted by the court, and the court excluded proper testimony tending to prove that issue, and committed error in giving demurrer to the evidence. Ring, Exr., v. Kelly, 10 Mo. App. 411; Peak v. Harris, 57 Mo. App. 467; Bldg. Assn. v. Kleinhoffer, 40 Mo. App. 388.

Louis City Circuit Court. — No». Wm. Zachritz, Judge. (1) The appellant is entitled to full and fair compensation for lier improvements. “Just compensation implies adequate compensation, a fair equivalent, a just indemnity.” Railroad v. McG-rew, 104 Mo. 289. “The paramount law intends that the owner shall he put in as good a condition pecuniarily by a just compensation as he would have been in if the land had remained entire as his own property.” 2 Lewis on Eminent…

— Hon. Wm. 8. Herndon, Judge. (1) Tire court erred in holding that the defendant had acquired title as against the railway company by adverse possession. R. S. 1899, sec. 4270; Railroad v. Totman, 149 Mo. 657; Slocumb v. Railroad, 57 la. 675; Railroad v. French, 43 S. W. 771; Pox v. Hart, 11 Ohio 414; Smyles v. Hastings, 22 N. Y. 217. (2) The deeds introduced in evidence show record title in plaintiff.

<p>Appeal from Oregon Circuit Court. — Ho». W. A. Evans, Judge.</p>

Louis City Circuit Court. — Hon'. Win. Zachritg, Judge. (1) Instruction 5 does not correctly state tbe law. The finder of a lost article is entitled to possession as against every one except the owner. 2 Kent, star page, 356; Lacy’s Ed., p. 453; Darlington on Personal Property, pp. 35-37 (note 1, p. 37); Hamaker v. Blanchard, 90 Pa. St. 377; Tatum v. Sharpless, 6 Phil. 18; Bowen v. Sullivan, 62 Ind. 281; Durfee v. Jones, 11 R. I. 588; Bridges v. Hawkesworth, 7 En.

<p>Appeal from Dent Circuit Court. — How. L. B. Wood-sidey Judge.</p>

— Ho». Argus Cox, Judge. (1) The indictment is bad for the want of an allegation that defendant represented the value of the mortgaged cattle, or that they were good security for the loan, or unincumbered. State v. ■ Barbee, 136. Mo. 440.

J. L. Forty Judge. (1) Declarations of a co-conspirator are receivable against Ms fellows when they accompany or explain acts done in pursuance of a concerted criminal purpose, if made (as these were) during the pendency of the common criminal enterprise. State v. Melrose, 98 Mo. 594; State v. McG-raw, 87 Mo. 161; State v. Duncan, 64 Mo. 262. (2) The court stated in the presence of the jury that there was some evidence tending to-show a conspiracy.

<p>1. Kecessary Parties: legatees under a will: widower’s statutorv interest. The legatees named in the will of a married woman who died without children or other descendants and left a will by which she expressly cut out her husband and gave her property to others, are necessary parties to a suit by the executor to determine what interest her surviving husband took under the statute of 1895.</p> <p>2. --: PRACTICE: determination OF ISSUES raised. The Supreme Court was not organized for the purpose of deciding mere abstract propositions of law. It will not determine the effect of a statute until all persons who will directly be affected by its decision are made parties, if it is patent from the face of the record that necessary parties have been omitted. Therefore, as a complete determination of the question of what interest the surviving husband takes under the statute of 1895 in the estate of his wife who died without descendants and by will gave her property to others, can not be had without bringing in such legatees, the court will not decide, in a suit by the executor against the husband alone, whether or not that statute applies to husbands who were married, prior to its enactment or to estates inherited by the wife prior to its enactment, nor whether or not the husband’s interest in his wife’s estate can be cut off by the wife’s will, but will remand the cause so that the trial court may order the necessary parties to be brought in by an amendment of the petition, or by a supplemental petition and a new summons.</p>

— Eon L. B. Woodside, Judge. (1) The court erred in giving instruction 7 on the part of the State. The defendant stands charged with having assaulted Bennett with intent to kill him.

J. L. Fort, Judge. (1) That the hoard of equalization had jurisdiction of the subject-matter there can be no doubt. Sec. 7517, R. S. 1889; State ex rel. v. Buchanan Co. Board, 108 Mo. 243. (2) The parties appeared before the board in obedience to the notice given, and thereby waived all informality of notice given, if there was any. State ex rel. v. Buchanan County Board, supra; Brown v. Weatherly, 71 Mo. 152; Taber v. Wilson, 34 Mo. App. 97; Mining Co. v. Neptune, 19 Mo.

<p>Appeal from Butler Circuit Court. — Ho». J. L. Fort, Judge.</p>

— Hon. Jas. E. Hazell, Judge. Instruction 9, given on part of the State, is erroneous. This instruction, in effect, told the jury that if defendant by any acts, that is, by the use of approbrious or insulting language toward the witness, Harris, brought on the difficulty, if assaulted by Harris, he was deprived of the right of self-defense.

' Appeal from Dent Circuit Court. — Eon. L. B. Wood-side, Judge. (1) The court erred in refusing defendant’s instruction in the nature of a demurrer; the evidence of Augusta Capps.fails to make a case of seduction; she testifies to no arts, blandishments and wiles, nothing done by defendant to gain her affections, pollute her thoughts, corrupt, deceive and draw her aside from the path of virtue. No testimony that the promise of marriage was used for that purpose.

— If cm. Argus Cox, Judge. This case was properly submitted to the jury, under competent evidence with no prejudicial error against the defendant, and the instructions given were a clear and fair declaration of all the law of the case, and defendant having had a fair and impartial trial, the judgment should be affirmed.

— How. Jno. A. Eockaday, Judge. The first instruction correctly defined murder in the first degree. State v. Cushenberry, 157 Mo. 168. Instruction number two was a proper declaration of law as to murder in the second degree. Instruction number twelve correctly stated the law as to the right of the defendant to act when he apprehended and had cause to apprehend deceased was about to inflict upon him some great bodily injury.

Jas. E. 'Hasell, Judge. (1) The court erred in failing to instruct the jury upon all the questions of law arising in the case, which was necessary for their information in giving their verdict.

Louis City. Circuit Court. — Ho». Franklin Ferris, Judge. (1) The court erred in not giving an instruction on murder in the second degree, as the facts found by the jury on due consideration of the evidence might have been such as would constitute that degree of guilt under the law. Wharton, Crim.

<p>Appellate Jurisdiction: interstate commerce. In a suit by a ship'per against a common carrier for damages to goods in transit, no construction of the Eederal or State Constitution is so involved as to give the Supreme Court jurisdiction of the appeal by an assignment of error in the motion for a new trial and in the brief that the judgment is in conflict with the Interstate Commerce Act, unless it is stated in what particular it is in.conflict therewith.</p>

Louis City Circuit Court. — Row. P. Spencer, Judge. (I) The provisions of the amendment of the charter of the city of St. Louis and of the ordinance of that city, in so far as they authorize and direct the cost of the construction of this proposed sewer to be assessed against the lots in this joint sewer district, in the proportion that the area of each lot hears to the area of the whole district are in violation of the Constitution of this State and the Constitution of the…

— lío». Andrew Ellison, Judge. (1) The defendant’s expert witness gave evidence tending to show that it was impossible for the engineer to save the child after it got upon the track. The plaintiffs on cross-examination asked these witnesses if in their opinion the engineer could have saved the child if he had seen her running on the platform in a manner indicating that she was going to run upon the track.

<p>1. Railroads: fellow servant: liability. Under the Missouri statute declaring “that every railroad corporation owning or operating a railroad in this State shall he liable for all damages sustained by any agent or servant thereof while engaged in the work of operating such railroad, by reason of the negligence of any other agent or servant thereof,” an employee of the company who is injured “while engaged in the work of operating such railroad, by reason of the negligence of any other servant,” may recover from the company.</p> <p>2. -: -: constitutional. Said statute is constitutional. It is not such a narrow classification of the employments of railroad servants as to make it violative of the fourteenth amendment to the Federal Constitution.</p> <p>3. -: -: section hand. Under the Missouri statute a section hand, who was injured while engaged at work as such, may recover from the railroad company for injuries resulting from the negligence of other section hands. The statute does not limit the recovery to injuries inflicted by an engineer or other employee while actually moving a train.</p> <p>4. -: -: -: while operatonq boad. Plaintiff was a member of a section gang that was engaged in repairing the track by taking out old ties and putting in new ones. When the old ties were taken out they were thrown down from a bridge fifty feet high over a street. Plaintiff was stationed below to warn passers-by and to remove the ties from the street. When the gang on the bridge were ready to throw down a tie they notified the plaintiff and he signified to them that “the coast was clear,” and they were not to throw the tie down until he so signified, but when a small child appeared on the street and was in a place of peril, plaintiff went to her, and while engaged in removing her, the gang on the bridge, without giving him any notice and without any notice from him to them, threw down a tie which struck the plaintiff on the leg and so injured it that it had to be amputated. Held, that plaintiff was within the meaning of the fellow-servant statute, in- . jured “while engaged in the work of operating such railroad”; and under that statute the railroad company is liable for his injuries.</p> <p>6. -: -: what SERVANTS are included. Under the fellow-servant law (sec. 2873, R. S. 1899) section gangs on railroads are included in the class of servants embraced in the act, and a member of such a gang who is set to warn passers-by of the danger incident to the throwing by its other members of ties from a high bridge over a public street and to remove the ties from the street after they have thus been thrown over, is included in that class.</p> <p>6. -: -: “operating railroad”: instruction. The question of whether a section hand is engaged “in the operation of a railroad” when injured, is a mixed question of law and fact, and hence an instruction which requires the jury to find the fact to be that the plaintiff was “a 'section hand laborer, aiding in the work of operating defendant’s road”, and declaring that if such was the fact he is entitled to recover, is not erroneous in submitting a question of law to the jury, although perhaps not as clearly worded as might be desired.</p>

Prohibition. (1 ) On April 15, 1901, these relators complied 'with the provisions of an act passed by the General Assembly of the State of Missouri during the session •of 1901, known as the “Beer Compromise Act,” and paid into the State Treasury for the benefit of the •state revenue fund the sum of $191,250, being ten cents •on each and every barrel of beer of the capacity of thirty-one gallons and in the same proportion for any other quantity of beer sold for consumption in…

Louis City Circuit Court. — Noto. Jas* E. Withrow, Judge. (1) The judgment, as entered on April 29, 1898, is in accordance with the prayer of the plaintiff’s petition‘and is the judgment rendered by the circuit court. (2) The judgment of April 29, 1898, having been satisfied, can not be altered or changed. (3) The judg-inent- of March. 22, 1899, is without evidence to support it, and is not the judgment-rendered by the circuit court on April 29, 1898.

<p>Ejectment: when eeviewabee. Where the suit is in ejectment, and the plaintiff based his claim upon the paper title, and the defendant relied upon the ten-year statute of limitations, and no declarations of law were asked or given, it is impossible to determine upon what theory the trial court found for defendant, whether upon the weakness of plaintiff’s paper title or the length and extent of defendant’s adverse possession, and hence the Supreme Court will not undertake to review the findings and judgment.</p>

Transferred from Kansas City Court of Appeals. (1) The court should have sustained the motion to quash the indictment for the reason that the. section of the statute under which it is drawn is unconstitutional and void: (a) It is class legislation, (b) It deprives the contractor of the equal protection of the law.

<p>1. Murder or Self-Defense: vekdict conclusive unless eeeob shown. Where the evidence showed either murder in the first degree or second degree, or indubitable self-defense, the verdict of the jury is conclusive, where no error in the instructions or the rulings on evidence is shown.</p> <p>2. Instructions: ebbob: no exceptions. Error in failing to give sufficiently full instructions in a criminal case can not be considered on appeal, where no exception was taken on the ground that the instructions were insufficient.</p> <p>3. -: MUBDEB IN SECOND degbee. Under Revised Statutes 1899, sections 2369, 2535, providing that the jury, in a criminal case, may find defendant guilty of any inferior grade of such offense, and that any person found guilty of murder in the second degree shall be punished according to the verdict, although the evidence shows him guilty of a higher degree of homicide, etc., an instruction as to murder in the second degree is proper in a prosecution for murder in the first degree, where the evidence is such that the jury might find defendant guilty of murder in either degree.</p> <p>4. Homicide: pbescmption. When a homicide occurs, nothing more appearing, presumptively the crime is murder in the second degree.</p> <p>5. Opprobrious Epithet: eliminates delibeeation. The use of an opprobrious epithet by deceased to his slayer immediately before the homicide is a fact tending to eliminate the element of deliberation from the crime, and thus reduce it to murder in the secord degree.</p> <p>6. Conviction of Second Degree Murder: instbuction on man-slaughteb. Where defendant in a prosecution for homicide was convicted of murder in the second degree, the giving of an instruction on manslaughter in the fourth degree was not prejudicial.</p> <p>7. Dying Declaration: objection: jubat. In a prosecution for homicide, an objection made to the introduction of a dying declaration as a whole was insufficient to raise the question of the admissibility of the affidavit or jurat accompanying the statement, and a part thereof. ■</p> <p>S. -: TESTIMONY: CONVEBSATION BETWEEN DECEASED AND PHYSICIAN. In a prosecution for homicide, where a dying declaration was admitted in evidence, testimony as to a conversation between deceased and his physician about the funeral arrangements of the former was properly admitted, as showing the condition of the mind of deceased, and also as confirmatory evidence of deceased’s firm conviction of his impending death.</p> <p>9. Evidence: GENERAL objection. An objection to evidence as immaterial, incompetent, and irrevelant is too general to raise the question of its admissibility on appeal.</p> <p>10. Address to Jury: kepbímand. In a prosecution for murder, the prosecuting attorney said in his argument that a certain defense was “trumped up” by defendant and one of his witnesses, and stated that the witness had been brought into court without a subpoena, like a “cold deck,” and was not subpoenaed until the trial began, which was the reason the State did not impeach her. Counsel for defendant objected for the reason that there was no evidence as to when the witness had been subpoenaed. The objection was sustained, and the court admonished counsel to confine himself to the record. Held, that, in the absence of any request for a more pointed reprimand, the rebuke was sufficient.</p>

— Hon. A. D. Burnes, Judge. (1) The information fails to show or allege that an assault was made on Warren, or that he was assaulted with anything. It fails to allege that Warren was in the house at any time, before or at the time the shot was fired. An intendment can not supply the deficiency, for in criminal prosecutions everything constituting the offense must be set forth with certainty and clearness.

— Hon. H. G. Pepper, Judge. (1) The verdict is not supported by the evidence, and should not stand. State v. Nesenhener, 164 Mo. 461. (2) The evidence merely raises a suspicion of guilt and can not support a conviction. State v. Ballard, 114 Mo. 634. (3) Instruction 11, given by the trial court, does not clearly state the law, the defense ' being an alibi.

— Hon. E. B. McKee, Judge. (1) Edwards was not and could not Lave been justified in Ms attack upon Bartlett on the day of the tragedy; and Bartlett, being pursued as he was, was ■clearly justified in firing upon Edwards as he did. The ■office of Bartlett was as sacred to him as his castle or domicile.

— Rem. Jas. I. Ne-ville, Judge. (1) (a) A court of equity, having obtained jurisdiction over the person in an equitable action, will, if the equities require it, compel such person to convey land… Held: and counsel for respondents admitted its correctness.