Volume 185 — Missouri Reports

— -Hon. W. B. Teasdale, Judge. (1) The court erred in refusing to sustain the demurrer offered, and to give tlie peremptory instruction, asked by tbe defendant herein, for the reason that the plaintiff is not entitled to recover, (a) Tbe petition alleged specific negligence, and tbe burden was on plaintiff to prove the same. Edens v. Railroad, 72 Mo.' 213; Sawyer v. Railroad, 37 Mo. 259.

— Eon. D. H. Eby, Judge. The plaintiffs’ petition does not state facts sufficient to constitute a cause of action in that it does not show that plaintiffs have any title to the land in controversy. In fact it does show by the rule of exclusion that they have no title. The plaintiffs took nothing by the alleged conveyance; it was null and void.

Louis City Circuit Court.— Hon. Jno. A. Tatty,, Judge. (1) If A is engaged in a business requiring the use of a certain commodity, and thereupon B agrees to sell and deliver to A for a price named all of such ■commodity “needed” by A during a certain period, and A accepts such proposition, a contract is thereby formed, which is not unilateral, but is binding upon hoth of the parties thereto. Laclede Const.

Louis Court of Criminal Correction.— jEon. Hiram N. Moore, Judge! (1) The statute upon -which this prosecution is based is a criminal or penal statute and as such, under all the authorities, should be strictly construed. Black on Interpretation of Laws (1896 Ed.), pp. 286, 287, 292, 293; State v. Bryant, 90 Mo. 538; State v. Schuchmann, 133 Mo. 123; State v. Howard, 137 Mo. 296; State v. Butler, 178 Mo. 319; State v. Gritzner, 134 Mo. 527.

— Now. J. L. Fort, Judge. (1) This being an offense under the statute, a reasonable compliance with the language of the statute is all that is necessary so long as the defendant is informed of the nature of the offense with which he is charged. State v. West, 157 Mo. 309; State v. Hendrickson, 165 Mo. 226; State y. Williams, 136 Mo. 293; State v. Hall, 164 Mo. 528.

— How. B. J. Casteel, Judge. (1) As applicable to section 2697, Revised Statutes 1899, it will be observed that final judgment in the court below must first be had before a writ of error will lie; in other words, all matters pertaining to the case at bar must first have been completely disposed of before this court will take cognizance of it by way of a writ ■ of error. In re Rose, 80 Cal. 170; Tylar v. Hamersley, 26 Am.

<p>Error to Buchanan Criminal Court. — Row. B. J. Casteel, Judge.</p>

— Ho». W. N. Evans, Judge. (1) The affidavit does not charge any offense in clear and distinct language and the information varies from it, and therefore the judgment should have been arrested. Laws 1901, p.' 139; State v. Cornell, 45 Mo. App. 94; State v. Whitaker, 75 Mo. App. 184; State v. Write, 55 Mo. App. 356; State v. Boggess, 86 Mo. App. 632.

— Now. Jos. D. Perkins, Judge. (1) (a) The indictment failed to properly allege the ownership of the property charged to have been embezzled. It did not allege the ownership in a corporation, or in a company, or in an individual or individuals, in any manner recognized as sufficient under the law. In passing on this question the rule of strict construction prevails. State v. Hall, 126 Mo. 585; State v. Patterson, 159 Mo. 98.

— Hon. J, L. Fort, ' Judge. The court’s remarks to the jury, after the jury had been deliberating for three hours, constitute reversible error of the worst variety. State v. Nelson, 181 Mo. 340; McPeak v. Railroad, 128 Mo. 617; State v. Hill, 91 Mo. 428; Edens v. Railroad, 72 Mo. 212; Good-sell v. Seeley, 46 Mich. 623; Randolph v. Lampkin, 90 Ky. 550; State v. Punshon, 124 Mo. 448; Ins. Co. v. White, 24 S. W. 425. Error is presumptively harmful. State v. Shipley, 174 Mo. 512.

Louis City Circuit Court . — Eon. O'Neill By an, Judge. The defendant, in due time, filed a motion to quash, alleging, among other grounds, that the information was not verified as required by law. The motion to quash was overruled, and the defendant duly excepted. Again in tlie motion in arrest of judgment, the trial court’s attention was directed to this condition, and the defendant was again overruled, with exceptions duly saved.

- — Hon. Wm. G. Ellis, Judge. The court should have given the instruction in the nature of a. demurrer at the close of the State’s case, there being no seduction in this case. State v. Reeves, 97 Mo. 668; State v. Ecklér, 106 Mo. 585; State v. Primm, 98 Mo. 368.- The prosecutrix is corroborated by the evidence of witness Pierson, who testified that defendant told him that he had promised to marry the girl, hut did not intend to do so.

— Hon. D. H. Eby, Judge. Defendant failed to except to the ruling of the court upon the motion for a new trial and the motion in arrest of judgment.

Louis City Circuit Court. — Hon. Warwick Hough, Judge. (1) The Heman Construction Company was an independent contractor for the construction of the sewer, and neither it nor its employees were agents or servants of the city of St. Louis; and for injuries occasioned third parties by the acts of the contractor or its ■employees the city is not liable.

— Now. Jno. W. Henry, Judge. (1) Plaintiff’s own evidence sliows that she was not entitled to recover and therefore the court should have sustained defendant’s demurrer to the evidence.

Louis County Circuit Court. — How. •Jno. W. McElhinney, Judge. ' (1) The provision in the deed, “conditioned also that the construction of the road he fully completed, and such road he in operation in or before the year 1900, ’ ’ was a covenant and not a condition subsequent. Conditions subsequent are not favored in law. Morrill v. Railroad, 96 Mo. 174; Studdard v. Wells, 120-Mo. 25; Roberts v. Crume, 173 Mo. 581.

<p>1. APPELLATE JURISDICTION: Amount in Dispute. The amount in dispute where defendant appeals is the amount of the judgment appealed from. So that, if the judgment was for $6,250, and plaintiff files a remittitur of $2,250, and judgment is rendered for $4,000, the defendant’s appeal, unless it otherwise falls within the jurisdiction of the Supreme Court, is to the proper court of appeals.</p> <p>2. -: Nine-Jury Law: Unanimous Verdict. Where the verdict returned was unanimous, there is no constitutional question in the case arising from the fact that the court instructed the jury that a verdict might be returned by nine of their number.</p>

— Eon. E. P. Gates. Judge. (1) The court erred in admitting’ incompetent evidence, namely, that of Dr. McDonald and Dr. Jones, .questions that were solely for the jury, and not a matter of expert evidence.

Louis County Circuit Court. — Eon. John W. McElhinney, Judge. The conductor at the time of the shooting was not engaged in the performance of any duty for the defendant. The scuffle during which the. pistol was discharged grew out of the personal quarrel between the plaintiff’s-husband and the conductor, in which the conductor was-acting on his individual responsibility, and not within the scope of his agency for defendant, and the defendant is not- liable therefor.

Louis City Circuit Court. — Now. Selden P. Spencer, Judge. (1) A merely slight difference in levels along a sidewalk does not constitute an obstruction within the meaning of the law. Burns v. Bradford, 137 Pa. St. 361; Hamilton v. Buffalo, 10 Man. Corp. Cases (N. Y.) 786; s. c., 65 N. E. 944; Haggerty v. Lewiston, 8 Mun. Corp. Cases (Maine) 903; s. c., 50 Atl. 55; Dubois v. Kingston, 102 N. Y. 219. (2) The city is not an insurer of the safety of travelers on the streets.

— Hon. W. L. Jarrott, Judge, (1) Plaintiff’s instruction 2 is erroneous. “Long time” is a very indefinite expression.

— Hon. William B. Teasdale, Judge. (1) Defects apparent on the surface of the bolt were shown- to the jury and the holt was examined by the jury. The only evidence of inspection was that a man looked at the holts before sending them to the threading department. It was the peculiar province of the jury to determine the sufficiency of the inspection of the ' bolt by the defendant. Gutridge v. Railroad, 105 Mo. 520.

— No®. James Gibson, Judge. (1) Thomas Ward was at the first a mere squatter. His entry upon the vacant land was with the consent of the owners. Before he.or his heirs could claim adversely to the true owners there must have been some acts or declarations upon his part bringing notice home to the true owners of his determination to change his permissive holding into an adverse holding.

Louis County Circuit Court. — Hon. Jno. W. McElhinney, Judge. The question is — and it is practically the sole question in this case — was plaintiff guilty of contributory negligence when he relied on defendant’s rule and 'custom to ring a gong, when* a moving car approaches and passes a standing car? Does the law impose upon one so situated as was the plaintiff at the time of this accident to do more than he did to ascertain if a car was approaching?

Transferred from St. Louis Court of Appeals. All of the authorities are agreed that the memorandum must state the' contract with reasonable certainty, so that its essential terms can be ascertained from the writing itself without resort to parol evidence. Einger ' v. Holtzclaw, 112 Mo. 522; Boyd v. Paul, 135 Mo. 13; Kelly v. Thuey, 143 Mo. 422; Weil v. Willard,- 55 Mo. App. 376; Schroeder v. Taaffe, 11 Mo. App. 267; Scarritt v. Church, 70 Mo.

— Roto. E.' M. Hughes, Judge. (1) The circuit court of Audrain county had no jurisdiction of this cause for the reason that the suit was not commenced in the county where the cause of action accrued, or in a county where the defendant had or usually kept an office or agent for its usual and customary business. Secs. 562 and 997, R. S. 1899'; Byler v. Jones, 79 Mo. 261; Bank y. Knox, 47 Mo. 333; Yastine v.- Bast, 41 Mo. 493; Graham v. Ringo, 67 Mo. 324.

Louis County Circuit Court.— Horn' John W. McElhinney, Judge. (1) There was a failure of proof, (a) The cause of action pleaded by the plaintiff was not sustained by his evidence, nor by any evidence in the case. He pleaded a ridge of macadam running lengthwise of the street and just north of the car tracks as being the cause of a dangerous and steep incline toward and into the gutter.

— Ho». E. M. Hughes, Judge. (1) There is no implied warranty (except as to title) of a machine sold by one dealer or manufacturer. Benjamin on Sales (Bennett’s Ed.), sec. 657; Tiedeman on Sales, sec. 190; Anthony v. Potts, 63 Mo. App. 517. (2) If the property was of any value for any purpose whatever it must have been returned to defeat plaintiff’s cause of action, and such return must be prompt. Brown v. Weldon, 27 Mo. App. 251, 99 Mo. 564; Tower v. Pauly, 51 Mo.

— Ho». E. M. Hughes, Judge. (1) (a) The judgment in partition in the case of Clark et al. v; Muldrow et al. is void for the reason that the statute of partition (ch. 119, R. S. 1855), was not complied with. Secs. 1, 3, 5, 11, 14, 35, 39, 41, 51 and 52. (b) Because plaintiff, after coming into existence, was not made a party to the proceedings. Sec. 11, ch. 119, R. S. 1855; Story’s Eq. Plead. (Redfield’s Ed.), sec. 147.

Habeas Corpus. (1) The writ in this cause was duly issued from the St. Louis Court of Appeals. The petitioner had the right to test the legality of his arrest. Lowe v. Summers, 69 Mo. App. 637. Though the writ of habeas corpus, as an additional guaranty for human liberty, may be issued by a judge as well as by a court, it is none the less a decision of the court when the case is decided by a court.

— No#. W. B. Teasdale, Judge. (1) Plaintiff failed to make ont a case of injury due to actionable negligence on the part of defendant, and therefore its requests, made at the close of his case, and at the close of all the testimony, that a verdict be directed in its favor, should have been granted, (á) Even if the things alleged constituted defects in the plank, yet they were patent to any observer, and the plaintiff must have known of them, and was chargeable with such…

— Hon. Edward P. Gates, Judge. (1) If plaintiff, after being deceitfully induced to take tbis insurance, and lulled into tbe belief for seven years that he had what he had applied for, and until his age and physical infirmities had become such that he could get no other insurance in a reputable company, is entitled to any relief at all, then undoubtedly the second count states a cause of action.

— Ho». J. H. Slover, Judge. (1) Defendants were liable tbougb they were acting as agents of tbe corporation, therefore defendants ’ instruction 9 was erroneous. Clark v. Edgar, 84 Mo. 107; McCutcben v. Windson, 55 Mo. 149; Schoeltgén v. Wilson, 48 Mo. 253; Ring v. Co., 44 Mo. App. Ill; Robinson v. Rice, 20 Mo. 234; Swaggard v. Hancock, 25 Mo.

— Hon. H. G. Pepper,. Judge. Creditors can not complain that a conveyance of a homestead is fraudulent as to debts for the payment of which it can not be taken in execution. They could not reach it if not conveyed, and their motives in the conveyance do not concern them. Stanley v. Snyder, 43 Ark. 430; Erb v. Cole, 31 Ark. 557; Meux v. Anthony, 11 Ark. 411; Hempstead v. Johnston, 18 Ark. 124; Bogan v. Cleveland, 12 S. W. 159; Bump, Fraud. Conv., 245; Wait, Fraud. Conv., 71.

— -Ho». D. H. Eby, ■ Judge. The lands at the time of the sale were the homestead of the Stewarts, hut under the provisions of section 3622, Revised Statutes 1899, said homestead was not exempt against the debt contracted in 1893.

<p>Appeal from Pike Circuit Court. — Hon. D. II. Eby, • Judge.</p>

— No». J. N. Plover, Judge. ' • Tire work in this case was completed within a reasonable timé after the contract was confirmed, and the taxbill is valid. The decision of the trial court in this case was made in accordance with Ayers v. Schmohl, 86 Mo. App. 349. That case has been considered in Heman v. Gilliam, 171 Mo. 258. The provision regarding the time of completion of the wort is practically the same as this case.

<p>Appeal from Jackson Circuit Court. — Ho#. J. H. Slover, Judge.</p>

— Eon. W.B. Teasdale, Judge. (1) The contract between Kansas City and tbe Paving Company to pave Tenth street upon being approved and confirmed by ordinance of. that city became the legislative act of the city; i. e., its terms had the dignity and sanction of a law, because the city on November 2, 1892, enacted an ordinance expressly confirming and approving that contract.

— Hon. W. N. Evans, Judge. That respondent never intended to claim beyond the true line is made clear as can be by his own evidence. That he believed the Simpson survey to be the . true line is conceded. Appellants thought likewise, but neither party ever thought of claiming beyond the true line. Such possession can never be adverse. Appellants’ refused instruction is based on authorities as old as the law, and on Missouri cases from the beginning to the end.

Louis Court of Criminal Correction.— Hon. Hiram N. Moore, Judge. (1) The city of St. Louis is without power to enact any ordinances not in harmony with and subject to the Constitution and the laws of the State of Missouri. Constitution, secs. 23, 25, art. 9; charter of St. Louis, art. 3, sec. 26, pars. 1,-5 and 14; R. S. 1899,. pp. 2484-2488; R. S. 1899, sec. 6258; Trenton v. Clayton, 50 Mo. App. 539; Moberly v. Hoover, 93 Mo. App. 666;. Kansas City v. Hallett, 59 Mo.

— No». A. D. Burnes, Judge. (1) Defendant’s objection to testimony under the petition should have been sustained. It is admitted that the first count stated no cause of action, and the use of the words “taken” and “stole'” in the second count, when read in their connections, and with the allegation that plaintiff was a painter in the employ of the defendant, impute no crime.

Transferred from St. Louis Court of Appeals. The information was properly sworn to by the prosecuting attorney upon his information and belief. The information is in the form heretofore approved by this court and fully complies with all essential requirements. Kelley’s Criminal Law, sec. 579; State v. Rapp, 142 Mo. 443.

Transferred from St. Louis Court of Appeals. (1) (a) Where a mortgagor sells the mortgaged property, and the grantee assumes and agrees to pay the mortgage debt, the grantee becomes the principal debtor and the grantor becomes the surety with all the consequences flowing from the relationship of surety. Wayman v. Jones, 58 Mo. App. 313; Bank v. Klock, 58 Mo. App. 335; Bank v. Wood, 56 Mo. App. 214; Nelson v. Brown, 140 Mo. 589; Pratt v. Conway, 148 Mo. 291.

— Now. Jas. D. Fox, Judge. (1) Knowing of the presence of the pipe and its danger, and beginning his employment with such knowledge, and continuing to work under such conditions, Young waived the danger and assumed the risk of. the employment. Junior v. Elec. Light Co., 127 Mo. 83; Nugent v. Milling Co., 131 Mo. 245; 2 Thom. Neg., 1008; Thompson v. Railroad, 109 Mo. 199; Roberts v. Tel. Co., 166 Mo. 379; Doyle v. Trust Co., 140 Mo. 1.

Louis City Circuit Court . — Hon. Daniel G. Taylor, Judge. Manslaughter has a well-defined meaning at common law, and is the felonious killing of a human being, and which does not amount to murder. 1 Wharton, Cr. Law, sec. 302; 2 Bishop, New Cr. Law, sec. 627; 1 Blackstone’s Com., 191; 1 Hale 449.

<p>1. COMPETENCY OF JUDGE: Former Appeal: No Record of Ruling. Where the bill of exceptions and record preserved no action of the trial court in reference to appellant’s motion suggesting that the trial judge was incompetent to afford defendant a fair trial, the ruling in that regard is not open to review on appeal. The fact that on a former appeal the record contained the motion and disclosed the ruling of the court in reference thereto, will not avail defendant on this appeal. The motion should be renewed in the trial court when'the case is remanded for new trial, or must be disregarded on second appeal.</p> <p>2. INDICTMENT: Without Evidence: Perjury: Competent Witnesses. Members of a grand jury are not competent witnesses to prove that the indictment was presented without the production of any competent evidence on which to base it. If there was no evidence presented to the grand jury to sustain the indictment, defendant’s plea in abatement should be sustained; but that plea must be supported by evidence, and members of the grand jury are not competent witnesses on the point.</p> <p>3. -: Testimony of Defendant: Perjury. A plea in abatement to an- indictment for perjury based on the false testimony of defendant when subpoenaed before the grand jury in another case, although one with which he was shown by the testimony in the case on trial to have been connected, is not to be sustained on the ground that the indictment was based on the testimony of defendant. It was not his testimony in reference to the charge of perjury upon which the perjury charged is based, but his false testimony in connection with the other ease then being investigated.</p> <p>4. -: -: -: Plea In Abatement. Where a grand jury was making a proper and legitimate inquiry, and defendant appeared as a witness and failed to claim his privilege not to testify on the ground that his testimony would incriminate him, but falsely testified, a plea in abatement to a subsequent indictment charging him with perjury should be overruled.</p> <p>5. CHANGE OF VENUE: Discretion. Where the evidence does not show that the court abused its discretion in denying the defendant a change of venue on the ground that the inhabitants of the county were prejudiced against him, the Supreme Court will not interfere.</p> <p>6. JURORS: Prejudice. A venireman who testifies that his friendship and association with the brother of defendant will influence him in reaching a conclusion in the case, should be excused from sitting as a juror. The State, as well as the defendant, is entitled to an impartial jury.</p> <p>7. PERJURY: Accomplice. Where the fact is made manifest to the jury that much of the testimony relied upon to support a conviction consists of evidence detailed by accomplices in the commission of an offense equally as serious as the one with which the defendant is charged, the Supreme Court will allow ' that jury to determine their credibility, and will not set aside the verdict on the ground that it is not supported by the evidence.</p> <p>8. INSTRUCTION: Useless Words. A judgment should not be reversed because of the use of words in an instruction which are wholly useless and inapplicable to the case. Where defendant was indicted for falsely swearing before a grand jury that he did not know that $75,000 had been put up in a trust com-pany to be paid to a combine of nineteen members of a legislative assembly on the passage of a bill giving to a street railway a certain franchise, and the evidence clearly shows that the agreement was made through one of the members and the fact announced to the rest in the month of November, 1900, that part of an instruction which required the jury to find that the defendant was a member of such legislative assembly “during the month of January, 1902,” was wholly inapplicable to the case, was a useless addition thereto, and could not have misled the jury.</p>

Louis City Circuit Court. — Hon. Daniel G. Taylor, Judge. The instructions directed the jury to go outside of the information; not alone in regard to the essential element of the want of consent of the owner to the alleged taking, but also in regard to a joint charge which is not in the information, i. e., the first instruction also directs them that if they find that “the defendant John Scullin, alias Kid Taylor, alias Whiting, either while acting alone or with others then…

(1) Instruction 4 is clearly misleading. Under this instruction the jury could clearly infer, in fact it is the only inference justifiable, that a struggle for possession of the-money after the asportation by defendant was complete, is sufficient evidence of violence to constitute robbery. This is not the law. State v. Sommers, 12 Mo. App. 374; State v. Willis, 16 Mo. App. 553; State v. Clark, 12 Mo. App. 593; State v. Cunningham, 13 Mo. App. 576.