Volume 174 — Missouri Reports

— Rcw. J. L. Fort, Judge. (1) Had plaintiff (appellant) under the facts as they exist in this cause the right to exercise the power of eminent domain in this State? If an affirmative answer be given to this question the case must be reversed. Especially is this true as the trial court based its finding alone on the non-existence of this power. Section 1352, Revised Statutes 1899, confers on domestic bridge companies the right to condemn for bridge purposes.

Louis City Circuit Court. — No#. Franklin Ferris, Judge. ■ (1) Horn was negligent in not keeping the car free from contact with the electric current while plaintiff was reversing and readjusting the trolley pole, .and this negligence caused plaintiff’s injuries. (2) ’The defendant was and is liable to plaintiff fo.r Horn’s negligence. Act of 1897, .Laws 1897, p. 96. (3) Hogan was guilty of negligence in causing plaintiff’s injuries.

Mandamus. (1) Mandamus will lie to compel the Secretary of State to perform a duty not purely judicial. It has long been well established in this State that mandamus will lie to compel the Secretary of State to perform a duty merely ministerial. State ex rel. v. Sec. of State, 33 Mo. 293; State ex rel. v. McGrath, 60 Mo. 586; State ex rel. v. McGrath, 75 Mo. 424; State ex rel. v. McGrath, 92 Mo. 355; State ex rel. v. Lesueur, 99 Mo. 552; State ex rel. v. Lesueur, 103 Mo. 262.

Charles Circuit Court. — How. E. -M. Hughes, Judge. (1) The work was not done according to the terms of the contract, and for this reason there can be no recovery on the taxbill. Brick Mfg. Co. v. Hamilton, 51-Mo. App. 120; Galbreath v. Newton, 30 Mo. App. 399; Meyer v. Wright, 19 Mo. App. 283; Bank v. Payne, 31 Mo. App. 521; Dunn v. McNearly, 75 Mo. App. 217; McQuiddy v. Brannock, 70 Mo. App. 535.

Louis City Circuit Court. — Ho». Jas. E. Withrow, Judge. (1) The passage of the ordinance was the exercise of a governmental function for the public welfare — a part of the police power.

— No». Jas. T. Ne-s ' ville, Judge. (1) The answer fails to show that any sale of the property had been made as contemplated by the deed of trust, or that appellant had ever consented thereto or been consulted about the matter, without which no right to pay before maturity existed in respondent, and for this reason appellant’s objection to the introduction of any evidence under the answer ought to have been sustained, and the court erred in its refusal to do so.

Louis City Circuit Court. — Hon. Franklin Ferris, Judge. (1) If the contract provided simply for a sale of 12,000 quarters, then the “Gloucester” shipment was in compliance with the contract in all respects.

— How. Geo. F. Long mi, Judge. (1) Knowledge on the part of appellants that Mrs. White was surety for her husband on the notes referred to in the petition, dated in 1890, and secured by the Ittel deed of trust, was necessary before she was entitled to any relief as surety. Ins. Co. v. Hauck, 83 Mo. 29; Pratt v. Conway, 148 Mo. 291; Harburg, Ex’r, v. Kumpf, 151 Mo. 19; Hardester v. Tate, 85 Mo.

<p>Ejectment: quashing execution. If the deed of trust under -which plaintiff in ejectment recovered has been cancelled in a subsequent equitable proceeding, the execution in that ejectment suit should be quashed.</p>

Transferred from Kansas City Court of Appeals. (1) The motion for rehearing was properly sustained. The decision rendered by the court in this case was in conflict with the decision of the St. Louis Court of Appeals, in the case of Brinsmade v. Groll, 14 Mo. App. 444; Rider v. Culp, 68 Mo. App. 527. This case is directly in point and was rendered under a state of facts similar to the present, and has never been criticised or overruled by either of the appellate courts.

Louis City Circuit Court. — Ho». Walter B. Douglas, Judge. The court erred in overruling defendant’s demurrer to plaintiff’s original petition.

— Hon. Henry G. Pepper, Judge. (1) The “Milldam Act” is constitutional. Similar acts have been enacted in nearly all, if not every State in the Union, and such acts have been held to be constitutional by the appellate courts of every State where they have been called in question, with the possible exception of three States. State v. Gilmore, 141 Mo. 506; Head v. Amoskeag Mfg. Co., 113 U. S. 9; Olmstead v. Camp, 33 Conn. 532; 89 Am.

St. Louis City Circuit Court . — Hon. Wm. Zachritz, Judge. Respondent was a carrier of passengers and as such was held to the same high degree of care as a common carrier of passengers for hire — that is, to the highest degree of care of practical and skillful carriers by passenger elevators. Lee v. Knapp & Co., 155 Mo. 641. The judgment rendered in this cause for defendant was for the right party, and should be allowed to stand.

— Bo». J. B. 8'lover, Judge. (1) ■ In order to have entitled plaintiffs to recover in this cause, under the express conditions of the policy, and as a condition precedent to their recovery, it must have been shown that death resulted from accidental means independent of all other causes; and the undisputed evidence failing to show this fact, but, on the contrary, conclusively showing that it did not result from accidental means independent of all other causes, the court…

Louis City Circuit Court. — Wo». Walter B. Douglas, Judge-. (1) The court erred in refusing to give the in-. struction in the nature of a demurrer to the evidence, asked by defendant, at the- close of all the evidence, (a) ■Said instruction should have been given because the plaintiff’s petition does not state a cause of action. St. Louis v. Life Ins. Co., 107 Mo. 92; 2 Shearman & Red-field on Negligence, sec. 343.

Louis City Circuit Court. — Bore. Wm. Zachrits, Judge. (!) Where a contract purports to be for a valuable consideration, evidence can not be introduced to .show that it was a gift or gratuity.- Oadwallader v. West, 48 Mo. 497; Yosti v. Laughrau, 49 Mo. 598.

— Now. Gallatin Craig, Special Judge. (1) The court erred in permitting plaintiff to state his intentions in respect to his homestead. There must he something more than mere intentions to impress land with a homestead. Stanley v. Baker, 75 Mo. 62; Raes v. Gross, 92 Mo. 647; Hofschmidt v. Gross, 112 Mo. 649’; Thompson on Homestead, sec. 267; Smith v. Bunn, 75 Mo. 559.

— Root. Edward P. Gates, Judge. (1) The lien for the assessment of benefits, the judgment for which was confirmed July 27, 1892, is a prior lien to the deed of trust of plaintiff which was dated and recorded March 7, 1892. The ordinance for the grading of Kansas avenue under which proceedings the real estate in controversy was sold January 16, 1893, was approved May 29, 1891.

— Eon. E. P. Gates, Judge. (1) A master is not bound to furnish an absolutely safe place for his servant to work, but only to exercise reasonable care to do so. He is, therefore, not an insurer of his servant against defects in the place where he works, nor liable as such, but is only liable, it being in safe condition in the first place, for negligently permitting it to become defective, or negligently failing to repair it. Krampe v. Brewing Co., 59 Mo.

Louis City Circuit Court. — Son. Sel~ den P. Spencer, Judge.. There was a contract between plaintiff and defendant, which entitles the latter to the beneficial use of the money in question until such time as he may be required to pay out the same for bills incurred for building a new church.

' Appeal from Pettis Circuit Court. — Ho». Geo. F. Longan, Judge. (1) It was error to refuse to give defendant’s instruction in the nature of a demurrer to plaintiff’s evidence, at the close of plaintiff’s case.

Louis City Circuit Court. — Hon. Walter B. Douglas, Judge. (1) The court erred in failing to instruct the jury for common assault, because there was no evidence whatever that the club used was a deadly weapon. It was not used upon and about a vital part on the body of the prosecuting witness, and in such a way as was likely to produce death. State v. Schloss, 93 Mo. 361;' 2 Bishop Crim. Law, sec. 681.

— Hon. Jos. D. Perkins, Judge. We have only the record proper before us for consideration, no bill of exceptions having been filed. The charge is made that the information fails to charge defendant with any offense known to the law. This charge is laid in the motion in arrest of judgment and it becomes necessary for us to examine the information with a view to detect error, if any there be.

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

— Row. Henry C. Pepper, Judge. (1) The jury were in effect told that if they did not believe the testimony offered to establish ah alibi as to one of the defendants they might disregard the testimony offered in support of the alibi as to the other. The court did not direct the jury as to what they should do in the event they believed the testimony offered relative to the alibi of one of the defendants and disbelieved that offered for the other.

— How. Nat. M.' Shelton, Judge. (1) If the crime was committed and Edwards was robbed, the State failed utterly to connect the appellant with it in any manner whatever. The prosecuting witness exonerates him. (2) The verdict of the jury is against the law and the evidence in the case.

— Hon. W. N. Evans, Judge. (1) The trial court held that the deed of W. P. Prey, as administrator of the estate of Silas Hefner, to Sitton and Scott, did not convey title to the northwest quarter of section 8, township 22, range 2, the land in controversy, because this tract was not described in the order of sale made in the probate court.

■Appeal from Wright Circuit Court. — Hon. Argus Cox, Judge. (1) The indictment shows that it was returned into court A. D. 189 — . (2) The trial court erred in excluding testimony of witness Newton as to his conversation with L. D. Marr.

<p>Appellate Jurisdiction: cloud on title. The fact that taxhills, issued for the macadamizing of a street, may be clouds upon the title of the abutting property-owner, does not give the Supreme Court jurisdiction of an appeal from a judgment in a cause to remove such tax-bills as a lien on the title. Such proceeding does not involve title within the meaning of the Constitution giving the Supreme Court jurisdiction of an appeal in a cause involving title to real estate.</p>

— No». B. J. Casteel, Judge. (1) (a) When Lizzie Smith was called by the State to prove that the confession was not procured by inducement or duress, she thereby became the State’s witness, and the defendant had the right to cross-examine, impeach or refresh her memory, especially with reference to the testimony given by her upon direct examination. Page v. Kankey, 6 Mo. 433; Brown v. Burrus, 8 Mo. 26; Railroad v. Silver, 56 Mo. 265;.

Transferred from Kansas City Court of Appeals. The record shows that in the two eases at bar respondent obtained an injunction enjoining the city from the collection of park and park maintenance taxes as well as city taxes levied during the years 1896 and 1897.

— Ho». Jas. H. Lay, Judge. (1) The court erred in refusing to instruct the jury that plaintiffs were not entitled to recover on either of the clauses complained of as libelous, because: (a) The individual signatures of the partners, in addition to the partnership name, on partnership notes, constitute security for such partnership debts, and therefore it was true that the bank holding such notes had been secured.

— Ho». James Gibson, Judge. (1) The taxes are prior liens against the real estate, and this lien can not be discharged without, at least, some payment to the State. (2) The costs in the case are not separate liens against the property, but constitute a pari of the tax lien, and, therefore, are-only entitled to a proportionate payment. R. S. 1889, sec. 7683, R. S. 1899, sec. 9304.

— -How. Argus Cox, Judge. The remarks of the prosecuting attorney in attacking defendant’s character when it had not been put in issue by him, coupled with the oral statement of the judge to the jury, was erroneous, and prejudicial to defendant and warrants a reversal of the judgment. State v. Hudspeth, 159 Mo. 207; State v. Young, 99 Mo. 683; State v. Jackson, 95 Mo. 653. The law is mandatory that instructions as to the law in criminal cases must be in writing.

— Ho». John W. Wofford, Judge. (1) Instruction 1 is erroneous in the following respects: (a) It fails to tell the jury that the goods must have been taken “without the consent” of the owner, (b) It tells the jury that defendant was guilty if he took “any part of the goods described in the information of the value of $30 or more,” without telling them that if they found defendant stole only a part of the goods they should show what part in their verdict.

<p>• 1. Railroad: ejection of passenger: statutory regulation. Where the statute states the terms upon which a person offering himself as a passenger may be ejected from the train, the railroad can eject him only when the conditions therein stated are present, and can mot say that at common law there are other conditions which authorize the ejection.</p> <p>2. -: -: tender Off FARE. If a passenger tenders his fare at any time before final ejection the company is liable if he is thereafter ejected for a previous refusal to pay fare. But a distinction is to be noted between the tender of the fare and a promise to pay it.</p> <p>3. -:--:discussion of rights. A passenger is entitled to a reasonable indulgence in the discussion of his rights and duties in the payment of fare when it is demanded by the conductor. Especially is this true if the evidence tends to show that before he boarded the train he had voluntarily sought to get from the station agent a ticket and a credit slip in pursuance to a contract entitling him to a rebate when he had purchased tickets amounting to a certain sum, but was not able to do so because the agent could not change the bill which he offered in payment.</p> <p>4. -:-: -: rebate SLIP: evidence. Where a passenger tried to purchase a ticket from the agent but could not because the agent could not change the bill which he offered in payment, it is proper, if he was ejected from the train for refusal to pay fare, to permit him to show that he made tender of the fare on condition that he be given by the conductor a credit slip entitling him to a rebate on the terms mentioned in his “credential book,” and also to show that it was the habit and custom of defendant’s conductors to issue such slips in similar eases. In such ease the passenger is entitled to a reasonable indulgence in the discussion of his rights, and if the credit slip is still refused, a tender of the money for his fare, if made before or during the process of his expulsion, is timely.</p> <p>5. -: -: burden of proof. The burden is on the railroad to show that one ejected from a train was put off for failure to pay fare, or for some other statutory ground.</p> <p>6. -: -: from moving train. A passenger can not be ejected while the train is in motion for failure to pay fare or for other reasons. And the company is liable if he is ejected from a moving train: to nominal damages, if not injured; and to substantial damages, if injured.</p> <p>7. -: -: credit SLIP: evidence: knowledge. It is immaterial whether or not the passenger knew that conductors on trains were authorized to issue, or were in the habit of issuing, credit slips to holders of credential books authorizing them to rebate. The only question is, whether or not the conductor who refused to give him such a slip was authorized to receive it.</p>

<p>Appeal from Daviess Circuit Court. — Row. E. J. Broaddus, Judge.</p> <p>(1) When this proceeding was instituted there was no law in force in Daviess county authorizing a township hoard to entertain a petition to condemn land for road purposes. Laws 1893, p. 222, sec. 5; Laws 1897, p. 217; R. S. 1889, sec. 6594; Railroad v. Cass Co., 53 Mo. 17; State v. Dolan, 93 Mo. 467; Smith v. Jacobs, 77 Mo. App. 254. (2) As the township board had no jurisdiction, an appeal to the county court conferred no jurisdiction on that body. Planing M. Co. v.-Short, 58 Mo. App. 320; Batchelor v. Bess, 22 Mo. App. 402. (3) It was an error for the circuit court to admit evidence to show that the township organization law had been adopted in Daviess county. Nicker-son v. Lynch, 135 Mo. 471. (4) The presumption is that the general road law is in force in a specified locality until the contrary is alleged and shown. .State v. 'Hays, 78 Mo. 601; Rousey v. Wood, 47 Mo. App. 465. (5) The Township Organization Act is unconstitutional because it confides the condemnation of land for public roads to a tribunal other than a “court.” Const., art. 2, sec. 21; Mason v. Woerner, 18 Mo. 570; Sternburg v. State, 48 Neb. 299; 8 Am. and Eng. Ency. of Law (2 Ed.), 22; Const., art. 6, secs. 1, 37. (6) As the damages, when assessed and refused, are to be paid “into court,” it is implied that the proceedings to condemn property for public use must be instituted in and carried on under the supervision of a court of record. State ex rel. v. Buchanan, etc., 108 Mo. 242; State ex rel. v. McCaffery, 155 Mo. 500; State v. Laclede, etc., 102 Mo. 472; Riddick v. Walsh, 15 Mo. 519. (7) “Court” is used in the Constitution in its technical sense. State ex rel. v. Leffingwell, 54 Mo. 458. (8) A Constitution should be construed in the light of laws existing at the time of its adoption. Lamar Co. v. Lamar, 128 Mo. 188. (9) Section 21, article 2 of the Constitution is not self-enforcing in the sense that it will enable the public to condemn property otherwise than in pursuance of a statutory scheme. Cooley on Const. Lim., 528; Fusz v. Spaunhorst, 67 Mo. 256; State v. Sattley, 131 Mo. 464; Utley v. Hill, 155 Mo. 232. (10) Section 21 shows on the face that it must be supplemented by legislation, specifying the court and the number and character of freeholders who should assess the damages of the landowner, before land can be condemned for roads. State ex rel. v. Railroad, 74 Mo. 163; Arnold v. Hawkins, 95 Mo. 572. (11) While the prohibitory clause of section 21 is sufficient to'render wrongful an invasion of vested rights,' that section does not prescribe any scheme or mode of condemnation. Blakeman v. Benton, 9 Mo. App. 107; 2 Dillon on Mun. Corp. (2 Ed.), sec. 470. (12) Section 8549, R. S. 1899, of the township organization act is unconstitutional because it. prescribes a jury of “householders” to assess damages, instead of a jury of “freeholders.” Const., art. 2, sec. 21; Dillon on Mun. Corp. (2 Ed.), secs. 469-472; State ex rel. v. St. Louis, 1 Mo. App. 508; Jones v. Zink, 65 Mo. App. 410; State ex rel. v. Withrow, 133 Mo. 500. (13) Where the statute called for “freeholders” but the record showed “householders” were summoned, it was held the record was void. Pore v. Hoke, 48 Mo. App. 254. (14) The decree of the county court is void because the court condemned the land before the damages were paid. Const., art. 2, sec. 21; 10 Am. and Eng. Ency. of Law (2 Ed.), p. 113.7; Walther v. Warner, 25 Mo. 277; Bradley v. Railroad, 91 Mo. 493. (15) As George Dewey was owner of land to be affected by the proceeding, failure to name him rendered the proceeding void. 15 Am. and Eng. Ency. of Law (2 Ed.), 362; Anderson v. Pemberton, 89 Mo. 61; Chouteau v. Railroad, 122 Mo. 388. (16) The decree does not show that the county court found the road was of public utility. “Being of opinion it should be established” is insufficient. Leisse v. Railroad, 2 Mo. App. 105. (17) Record does not show that petitioners saw and tried to agree with Shively as to damages. Railroad v. Young, 96 ÍVIo. 43; Peed v. Barker, 61 Mo. App. 556; Moses v. Dock Co., 84 Mo. 243; Ellis v. Railroad, 51 Mo. 200. (18) The decree is not specific as to the land to be taken. 15 Am. and Eng. Ency. of Law (2 Ed.), 380. (19) Both county and circuit courts erred in not adjudging costs up to end of trial in county court against petitioners. R. S. 1889, secs. 2920, 2928.</p> <p>(1) At the time of the giving of notice and the determination of the proceeding before the township board, it had • authority to grant a change of road. Section 5 of the Act of 1893, page 222, did not take away from the board its rights theretofore existing, but simply imposed upon all applicants for roads additional duties and requirements in the matter of procedure. These duties and requirements were removed by the Act of 1897, page 217, so that the law as to procedure in township boards in'1899, was the same as it had been prior to 1893. (a) The Act of 1893 did not by apt terms repeal sections 8547-8550, Revised Statutes 1889, the only clause of reference being section five. Manker v. Faulbaber, 94 Mo. 430; Kansas City v. Smart, 128 Mo. 272. (b) To effect a repeal of a former act by implication arising from the terms of a later act, there must be a positive repugnancy between the provisions of the new and the old so that the two can not by any fair interpretation stand together. State ex rel. v. Walbridge, 119 Mo. 383; State ex rel. v. Wofford, 121 Mo. 61; McVeagh v. McVeagh, 51 Mo. 406. (c) Two statutes upon the same subject should be so construed as that both may stand, if possible. Manker v. Faulhaber, supra, (d) A statute which does not'repeal a prior statute in express terms is not to be construed as having that effect unless its provisions are plainly incompatible with those of such prior statute. State v. Daily, 49 Mo. App. 184. (e) And if two statutes can-be read together without contradiction or repugnaey or absurdity or unreasonableness, they should be read together and both should have effect. Ex parte Joffee, 46 Mo. App. 360. (f) It has become the settled rule of construction in Missouri, where repeals by implication are not favored, that the. prior law is to be upheld if the two acts can subsist together by fair interpretation and construction. State ex rel. v. Slover, 134 Mo. 10. (2) (a) The courts will take judicial notice of the existence of the law relative to township organization, but not that it exists in any particular locality; but this latter fact may be proven by extrinsic evidence. State v. Macy, 72 Mo. 431; Spurlock v. Dougherty, 81 Mo. 171; Rousey v. Wood, 47 Mo. App. 469. (b) The adoption of township organization in a particular county is prima facie proven by the abstract of the county clerk, duly recorded. See. 8427, R. S. 1889, see. 10228, R. S. 1899. Rousey v. Wood, 63 Mo. App. 460. (3) Assessment of damages before board was merely preliminary (but even here it was in accordance with the Constitution), and the land-owner was deprived of no constitutional right, as he still had the right to, and" did, appeal to the county court, where damages were ascertained by freeholders. Turlow v. Ross, 144 Mo. 240. (4) ' The Legislature has the same right to authorize township boards to establish roads as it did to give the same power to county courts, and township boards are courts of limited special jurisdiction, and such as to satisfy the requirements of the Constitution ; and the Legislature had as much right to provide for payment of the damages to the township trustee, as it has in condemnations by railroad companies to provide for payment to circuit clerk. Eminent domain has even been exercised by justice courts, and it is for the Legislature to determine what form of procedure shall be used in exerting the power of eminent domain, the only requisite being that the Constitution shall be observed. Musk v. Railroad, 114 Mo. 315. The only requirement of .the statute, section 8547, Revised Statutes 1889, is that the names of the owners of the land shall be given, if known. As Clarence Dewey was in possession of the land under a contract of purchase, having paid a great part of the purchase price, he had possessory rights superior to those,of. G-eorge Dewey, and, as this matter is regulated entirely by statute, the naming of Clarence Dewey was all that was,, necessary, he being the reputed owner of the' land, and known to petitioner as such. It will be observed that the statute does not require the names of all owners of the land, but only such as may be known to petitioners, hence, decisions cited by appellant do not apply. For it is only necessary for the owner to be named where required by statute. Chouteau v. Railroad, 12 Mo. 389. And it was competent for the legislative branch of the government to prescribe the mode and manner of the exercise of the power of eminent domain. Chouteau v. Railroad, 122 Mo. 392.</p>

— Sow. James S. Slover, Judge.. The court erred in giving instruction 7 for defendant. It makes plaintiff responsible for the alleged unskillful treatment of Dr. Drake, without regard to the question of whether plaintiff used ordinary care in his employment; besides, there is not a scintilla of evidence in the record that he was not a reputable physician, as he was the graduate of a medical college and had been practicing for thirty years.

Louis City Circuit Court. — Ho». Walter B. Douglas, Judge. (1) The entire testimony of Arthur Damschroeder should have been excluded as incompetent, immaterial and irrelevant, and for the reason that evidence of another offense by the defendant in this canse was entirely improper.

— Hon. B. J. Casteel, Judge. It was error to give instruction 2.

<p>1. Amending Laws: striking out and inserting words. Where the amendatory act in its prefatory clause says that a certain section of the Bevised Statutes is amended by adding certain words thereto, naming them, and then the whole section is set out in full, that clause of the Constitution referring lo the amendment of statutes by inserting or striking out words, is fully complied with.</p> <p>2. Constitutionality of Law: two subjects: germane. If the pur- ■ pose of the act is to prevent injury or destruction to farm lands and property along the track of a railroad, by fire and water, it can not be said 'to be contrary to the Constitution which provides that no bill “shall contain more than one subject,” if the provisions .of the act are not incongruous but germane to its title, and fairly relate to the same subject, have a natural connection with it, and afford a means of accomplishing it.</p> <p>3. -: -: fire and water. The title was, “an aet to amend section 810 . . . relating to private corporations, railroad companies,” and the aet makes it the duty of railroad companies, first, to clear up and remove all vegetation and undergrowth upon the right of way, and, second, to construct ditches and drains to carry off surface waters obstructed by its' roadbed, and subjects the company to the same penalty and liability for damages for failure to do either. Beld, that the act is not unconstitutional as embracing two subjects.</p> <p>4. -: DAMAGES TO CROPS: SUIT UNDER FORMER ACT. But whether the Act of 1883 is or is not unconstitutional as embracing two subjects, has nothing to do with this suit, since it is not a suit for the penalty of that act, but is an action under the Act of 1874 (see. 2614, R. S. 18S9), for damages to plaintiff’s growing crop occasioned by the alleged negligence of the railroad company to construct suitable ditches and drains along its roadbed for carrying off the waters along the road.</p> <p>5. Railroad: failure to construct ditches: suit by private citizens. A private citizen whose crops have been injured by the failure of a railroad company to construct suitable ditches and drains along it's road for carrying off the waters, can maintain a suit against the railroad for damages caused to his crops for its failure to construct such ditches.</p> <p>6. -: -: -: OVERFLOW OR SURFACE WATER. In SUCh Suit it is immaterial whether the water which destroyed the crops was overflow or surface water, if the railroad company by constructing a ditch along both sides of the track could have provided an outlet for the water.</p> <p>7. Water: common-law rule. The common-law rule as to surface water prevails in this State, which is, that owners of lands may improve them by obstructing or diverting it, provided that be not done in a reckless manner resulting in injury to some other person.</p> <p>8. -: —--: APPLICATION TO RAILROADS: MEANING OF STATUTE. The statute requiring railroad companies to construct ditches along their roadbeds to carry off the waters, is an innovation upon the common law, and clearly has reference to overflow water, which is surface water, as well as to water from rainfalls and melted snow.</p>

J. W. Alexander, Judge. (1) What the policeman told Eva Enoch could not he introduced against defendant as evidence against him. State v. May, 142 Mo. 154; State v. Burlingame, 146 Mo. 207. (2) She was also improperly permitted to state that the prosecutrix told her defendant had forced her. (3) While it is true that defendant can he impeached as other witnesses, yet in this case we take exceptions to the mode.

— Hon. H. G. Timmonds, Judge. (1) The trial court held that the filing of the second information for the same matter, on June 24, 1902, quashed the information which was filed on June 27,1902. The law is not so written in this State. The first indictment was merely suspended and new life and vitality might have been imparted to it by the quashing of the second indictment.

Louis City Circuit Court. — Now. Walter B. Douglas, Judge. (1) It can not he determined, from the record, which shot-resulted in the death of the deceased. And the court, presumably acting- upon this hypothesis, gave the jury full instructions as to whether the defendant intentionally killed deceased, or whether he shot at Kelly, without just cause or provocation, and accidentally killed the other person.

Transferred from Kansas City Court of Appeals. The first question is, whether .or not the State can appeal, this being a prosecution by information rather than indictment. It will be remembered that in three cases, much to the surprise of bench and bar, the Supreme Court decided that the State did not have the right to appeal in prosecution by information. State v. Clipper, 142 Mo. 474; State v. Carr, 142 Mo. 607; State v. Cornelius, 143 Mo. 179.

— No». E. R. McKee, Judge. (1) The certificate number 152, and the patent based thereon, being to “Charles de Lassus, or his legal representatives,” the legal effect of such patent and the certificate is paramount. Our courts say that the land was patented to the assignee or owner of the land at the time of the grant of the patent,, or to the heirs of the deceased person who had made the entry, if he had not disposed of the land.

— Ho». C. B. McAfee, Judge. • The record in this case shows that defendant was legally indicted, a plea of guilty was interposed and trial had, and a verdict of the jury obtained by which he was found guilty and his punishment assessed at, two years’ imprisonment in the state penitentiary. The indictment is in the usual form. The record fails to disclose the allegations contained in the motion for a new trial or, in arrest of judgment.

— Nora. Jno. W. Wofford, Judge. (1) The court erred in wholly refusing to permit defendant’s counsel to examine the jury on their voir dire, touching any opinion any of said jurors had formed or expressed on account of having heard a part or all of the evidence the day before in the case against Burns, about or concerning whether or not a burglary or larceny had been committed, the same being the burglary and larceny for which defendant was then on trial.

— How. Henry C. Riley, Judge. Neither count in the information is good under 'the false pretense statute (sec: 1927, R. S. 1899), because the essential word, “designedly,” is omitted from each count. So, too, it is bad under the cheats and fraud statute (sec. 2213, R. S. 1899), because the essential words, “by means and the use of,” áre omitted in the charging clause *of the information. ■ The indictment is sufficient.

— Hon. B. J. Casteel, Judge. (1)' There is nothing before the court save the record proper, no bill of exceptions having been filed. (2) The indictment is in the form usually employed in such cases. It is based upon the provisions of section 1848, Revised Statutes 1899. Should the felonious intent have been accomplished, appellant would have subjected himself to the provisions of section 1837, Revised Statutes 1899. Kelley’s Criminal Law, sec. 545.

Transferred from St. Lonis Court of Appeals. Judge McElhinney had no jurisdiction to try this cause, and any judgment entered under his supervision has no more validity than one rendered in a moot court of any law school.

— Ho». Gallatin Craig, Judge. No attorney in the trial of any criminal case has the right to refer in any manner to the failure of a defendant or his wife to testify upon any proposition.

<p>1. Pleading Without Counsel: how cured. Whatever irregularity there may be in requiring an accused charged with a felony to'plead to the indictment without advising him that he had a right to demand counsel, and permitting him to plead guilty without counsel, may be cured fcy afterwards appointing well-known members of the bar to look after his rights, and, by permitting him, before any further step is taken in the case, to withdraw his plea of guilty and enter one of not guilty.</p> <p>2. Plea of Guilty: subsequent withdrawal: evidence at trial. It is not reversible error for 'the prosecuting attorney to offer in evidence a plea of guilty which the defendant on trial, before any counsel had been appointed to look after his rights, was permitted by the court to make, but which, after the appointment' of'counsel for him, he was permitted to withdraw, and plead not" guilty. The most that the court can do is to exclude the offer and rebuke the prosecuting attorney for alluding to it. Nor is it held that such evidence is absolutely incompetent, although under the circumstances of this ease it was properly excluded.</p> <p>3. Carnal Knowledge': femare under fourteen years: rape. Carnal knowledge with a female under fourteen years of age, with or without force, or with or without her consent, is rape.</p> <p>4. ' -: remarks OF the PROSECUTING attorney. There is a marked difference between strong denunciation which is justified by the evidence, and wholesale abuse of the defendant for which there is no evidence. And in this case it is held that the calling of the defendant “a brute” by the State’s attorney, was not such abuse.</p> <p>5. -: passion. In view of the overwhelming evidence of defendant’s guilt of forcibly ravishing a girl less than fourteen years old, it is held that there is no evidence of passion in a verdict of imprisonment for ninety-nine years.</p>

— How. Henry C. Riley, Judge. The court committed error in admitting extrinsic evidence to cure defective description in the assessment and back taxbill. An accurate description of land is necessary to a valid assessment of a tax thereon. State ex rel. v. Railroad, 114 Mo. 11; Railroad v. Cass Co., 53 Mo. 29; City of Jefferson v. Whipple, 71 Mo. 520; Hughes v. Thomas, 29 So. 74; State ex rel. v. Sanford, 127 Mo. 372; Western v. Flanagan, 120 Mo. 61.

Louis City Circuit Court.— Hon. Jno. A. Talty, Judge. Appellant contends that he furnished the $1,390 for the purchase of the property. If that contention is sustained by the evidence, then unquestionably the judgment herein should be reversed and a decree entered herein for plaintiff.