Volume 189 — Missouri Reports

— Now. J. W. Alexander, Judge. (1) This is a suit in equity for the partition of all the lands owned by Jesse Coberly, deceased, at the time of his death. The petition asks the partition of said land and for an accounting of the rents and profits. This is not- the statutory proceeding. It is equitable.

St. Louis City Circuit Court. — How. William Zachritz, Judge. (1) Instructions of unnecessary volume and multiplicity tend to confuse the jury and make their verdict guesswork; and it is reversible error to give same. Sidway v. Land & Live Stock Co., 163 Mo. 342. (2) Instructions giving undue prominence to legal principles applicable to one side of the case tend to mislead the jury. They are prejudicial and harmful and it is error to give them. Powell v. Messer, 18 Tex. 401.

Louis City Circuit Court. — Ro». H. D. Wood, Judge. (1) Tlie attempt of tlie board of directors to expel Konta and forfeit Ms membership was ineffectual and jn no way affected Ms rights as a member, (a) The rules governing the procedure necessary to suspend a member and forfeit his membership, were never complied with, since Konta was declared suspended for non-payment of dues before due notice was given of the action about to be taken, or in fact before he received notice…

Louis City Circuit Court. — Ro». Sel-. den P. Spencer, Judge. The plaintiff, whilst undertaking to drive his buggy and horse across defendant’s tracks on a public street, was in the exercise of an indisputable right, according to all law. Men, women and children have an equal right with a railroad to the use of a highway. “Winters v. Railroad, 99 Mo. 517; Henry v. Railroad, 113 Mo. 536; Oates v. Railroad, 168 Mo. 544.

- — No». N. G. Timmonds, Judge. (1) Although, vendor may not have title or own the land at the time of making the contract, yet if he perfects his title and becomes the owner within the time limit of the contract and at the time suit was brought, equity will decree specific performance. Scannel v. American, etc., Co., 161 Mo. 621; Pomeroy on Contracts (2 Ed.), secs. 341 and 421. (2) Parties cannot complain of acts that are the result of or produced by their own wrong.

Transferred from St. Louis Court of Appeals. (1) The provisions of general insurance laws do not apply to such assessment contracts, and misrepresentations warranted to he true avoid the policy whether fraudulent or not, whether material as a matter of fact or not, or whether of matters actually contributing to the death or not.. The “Assessment Plan” insurance law is a complete and independent insurance law of itself. Aloe v. Life Ins. Co., 164 Mo.- 675; Elliott v. Life Ins.

Mandamus. (1) Prima facie the ordinance is reasonable and enforceable. The burden is upon respondent, at every point, to -establish the proposition that it should not be enforced. Tel. Co. v. Phila., 23 Sup. Ct. Rep. 817; Railroad v. State, 186 U. S. 257. And relator, by having the survey of the assets of respondent made, and by the introduction of the evidence, did not change this rule as to the burden of proof. Bolán v. Co., 127 Mo. 525.

Louis City Circuit Court . — Eon. Franklin Ferriss, Judge. (1) Tire motions to elect should have been sustained. The petition blends causes of action arising ex delicto with causes of action arising ex contractu. The Vigilant Watch Ordinance could only be passed under the power of the city to contract. Charter, art. 10, secs. 1, 2. It could not he passed under its power to legislate. Charter, art. 3, sec. 26 ; Path v. Railroad, 39 Mo.

Prohibition. (1) The power to pnnish for contempt is inherent in all superior courts of record.

Transferred from St. Louis Court of Appeals. (1) This action sounds in tort and not in contract. It is predicated on the general common law duty that the defendant as a common carrier owes to one rightfully on its train as a passenger. Wood v. Railroad, 32 Wis. 298; Bank v. Brown, 3 Wend. 158; Stone v. Railroad, 47 Iowa 88; Wabash v. Railroad, 42 Wis. 23.

<p>ASSAULT WITH INTENT TO RAPE: Insufficient Evidence. The evidence in this case, which was a prosecution for assault with intent to rape, is examined, and held insufficient to justify a conviction.</p>

— 5cm. Edward-P. Gates, Judge. (1) All proceedings for opening Seventeenth street under ordinance 16129 were finally and conclusively ended by ordinance 17307, and everything done thereafter was without any- authority of law and hence invalid. The second ordinance confirmed a verdict, which found that the damages to property to be taken under the first ordinance exceeded the benefits to be derived therefrom by the city at large and* the property within the benefit district.

— £fo». E. JR. McKee, Judge. (1) Defendant was not present at the time the court took up and overruled his application for a continuance of the case. This action of the court is within the prohibition of section 2610, Eevised Statutes 1899: (2) The information in this case does not charge that .the alleged offense of defendant was committed within the jurisdiction of the court. Laws 1897, p. 60.

<p>Appeal from St. Louis City Circuit Court. — Row. Daniel O. Taylor, Judge.</p> <p>(1) Tire property was not obtained in Illinois either by larceny or by robbery. State v. Fink, 84 S. W. 924; Rex v. Barnard, 7 Car. & P. 784; State v. Wilkerson, 98 N. C. 696; 1 Clark’s Crim. Law (2 Ed.), p. 322; State v. Kube, 20 "WIs. 217; State v. Anderson, 186 Mo. 25; State v. Buck, 186 Mo. 15. (2) The indictment is insufficient in failing to allege that the property was stolen in Illinois and brought into this State. 12 Ency. PI. and Pr., 949; Lee v. State, 64 Ga. 203; Stanley v. State, 24 Ohio St. 166; State v. Reonnals, 14 La. Ann. 278; Simpson v. State, 23 Tenn. 456; State v. Matthews, 87 Tenn. 689'; Morrissey v. People, 11 Mich. 327; Ham v. State, 17 Ala. 188; Le Vaul v. State, 40 Ala. 44; State v. Morales, 21 Tex. 298; Cummins v. State, 12 Tex. App. 121; Strouthnor v. Com., 92 Ya. 789; Clark’s Cr. Law, p. 424; May’s Cr. Law, sec. 80; Beale’s Cr. P. & P., sec. 5; Rapalje on Larceny, sec. 62; 14 Am. Digest, sec. 178.</p> <p>(1) The question of the interest in and ownership of the property by the railroad company has been passed upon in this State in the case of State v. Wag-halter, 177 Mo. 676. (2) A full discussion of the question of larceny as distinguished from obtaining money by false pretense is given in the cases of State v. Anderson, 186 Mo. 25; State v. Copeman, 186 Mo. 108; State v. Buck, 186 Mo. 15. And the law as applied to the facts in this case leaves no doubt that Mintz was guilty of larceny. There was no transfer of title from the railroad company to Rector. So far as the railroad company was concerned, he was given possession of the property for but one purpose and that was to convey it to the shoe company in St. Louis.</p>

<p>1. CIRCUMSTANTIAL EVIDENCE: Essentials to Conviction Upon. In order to sustain a verdict founded upon circumstantial evidence, the facts and circumstances must he established beyond a reasonable doubt, and when so established, should point so strongly to the guilt of defendant as to exclude every other reasonable hypothesis.</p> <p>2. -: Sufficiency: Murder. The evidence in this case, which was a prosecution for murder in the first degree, is examined and held sufficient to justify a verdict of guilty, founded upon circumstantial evidence..</p> <p>3. DEFENDANT AS WITNESS: Conviction of Previous Offense: Cross-Examination: Instruction. When a defendant becomes a witness in his own behalf, no error is committed in permitting the State to inquire of him, on his cross-examination, whether he had ever been convicted of a criminal offense. Such question is proper for the purpose of affecting defendant’s credibility as a witness, and in such case it is proper for the court by-its instruction to confine the jury’s consideration of it to that purpose.</p> <p>4. INSTRUCTION: Circumstantial Evidence. An instruction on circumstantial evidence, set out in the opinion, held not obnoxious to criticism.</p>

Louis City Circuit Court. — Ho». Daniel Q. Taylor, Judge. The mere appropriation of another’s money does not constitute embezzlement; non does the failure to turn the money over to his principal after the agent has received it constitute the crime, but there must be, and must be proven,, at the time of the conversion, an intent to appropriate the money to his own use, and to permanently deprive the owner thereof. Lumber Co. v. Hartman, 45 Mo.

— Row. Frank B. Bearing, Judge. A suit-under section 650 is, from the language of the statute itself, necessarily an equitable proceeding. Hall v. Kellog, 16 Mich. 135. “In a bill to quiet title it is sufficient for plaintiff to make out a title apparently good as against defendant.” Rayner v. Lee, 20 Mich. 384; Loomis v. Roberts, 57 Mich. 284. Tax proeeedings are of no force or effect to convey the interests of parties not made parties to the suit.

Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge. . (1) The corpus delicti was not shown.- State v. Dickson, 78 Mo. 438; State v. Jones, 106 Mo. 302; State v. Ballard, 104 Mo. 634; State v. Shelly, 166 Mo. 616.

<p>1. WIDOW’S ELECTION: Execution of Statutory Powers: Construction. The widow’s right to take one-half of her childless husband’s estate, subject to his debts, is purely of statutory creation, and her election can be upheld only by bringing her acts within its terms.</p> <p>2. -: Filed After Death. The widow within proper time executed her election to take a half interest in her husband’s estate, and sent it by her attorney to be filed. He filed it in the office of the probate judge, and directed him to file it with the recorder. The probate judge did not file it there, but after her death he made a certified copy of it, and the attorney filed that in the recorder’s office. Held, that there was no election by her. Unless the election is filed in the recorder’s office during her lifetime, there is no election.</p> <p>3. -: -: Agent. A deceased person can have no agent. So that the widow’s election, formally, executed and acknowledged by her, and filed' by her attorney in the probate court within proper time, cannot by her attorney be filed with the recorder after her death, for on her death his agency ceased. Nor can a certified copy be filed with the recorder after her death, by either her attorney or the probate judge, so as to meet the requirements of the statute requiring the election to be filed with the recorder, for after her death she could have no agent for that purpose.</p>

Louis City Circuit Court. — Hon. Jno. A. Tally, Judge. While the Missouri doctrine on the subject of whether knowledge of the defect on the part of the employee bars recovery is “extraordinarily conflicting,” still we can see nothing in conflict with the Missouri rulings.

Louis City Circuit. Court. — Hon. Jesse A. McDonald, Judge. The plaintiff bad no right to dismiss as to defendant Ravold (against objection of the city of St. Louis) ■while at the same time attempting to hold the city of St. Louis on the same cause of action. Laws 1901, p. 78. But at all events the attempted dismissal never became ■ consummate.

St. Louis City Circuit Court. — Row. Franklin Ferriss, Judge. (1) It is well settled that, where the words published are in writing and impute fraud, they are actionable per se, regardless of whether or not a crime is charged. Sullivan v. Com. Co., 152 Mo. 268; Houstan v. Woolley, 37 Mo. App. 15; Lanins v. Druggist Pub. Co., 20 Mo. App. 12. And especially is this true when plaintiff is a man in business where the words touch him in his business.

<p>1. HOMESTEAD: Mortgage, Where the homestead does not exceed 160 acres, and is mortgaged, the amount of the mortgage must he deducted from the total value of the land, and the. homesteader allowed a homestead to the value of not exceeding $1,500 in what remains of the total value of the land after the mortgage is deducted.</p> <p>2. - — : -: Execution: Creditors. That homestead to the statutory value is exempt from attachment and execution. And if the land belonged to the husband a conveyance to his wife cannot be regarded as fraudulent in law, for not being subject to attachment or execution, it is beyond the reach of the husband’s creditors. ,</p> <p>3. -: -: Sale: Creditors’ Right. Where the husband has conveyed his mortgaged homestead to his wife, the court cannot, at the suit of his creditors, order the property sold subject to the mortgage and $1,500 received at the sale turned ovef to the husband and the balance to his creditors, for two reasons: First, the deed to the wife of the homestead is valid as against the husband’s creditors, and she is entitled thereto and to the proceeds of any sale thereunder; second, she is entitled to select the particular part of the land, of the value of $1,500, which she would retain as a homestead.</p> <p>4. -: Sale: Equitable Proceeding. The fact that the proceeding is one in equity does not change the statutory right of the homesteader to choose and designate the part of the land which shall be exempt from execution and to have appraisers appointed to set it off; nor does it authorize a court of chancery to order the whole land sold and the homestead exemption to be turned over to the homesteader in cash instead of land.</p> <p>5. -:-: Wife’s Money: Setting Off Homestead. Where a part of the money which purchased the land was the wife’s money received by her after the enactment of the Married Woman’s Act of 1875, and a suit is brought by the husband’s creditors to set aside a conveyance by the husband to her, the homesteader must first be permitted to designate the part of the land of the-statutory value that he will retain, and the balance may be sold, and out of the proceeds the amount of her separate money that was used in the purchase of the land, should be paid to her, and then out of the balance his creditors may be paid.</p> <p>6. WIFE’S MONEY: Converted By Husband: Resulting Trust. Where a wife received land and personal property from her father’s estate prior to the passage of the Married Woman’s Act of 1875, and they were sold, and the money turned over to her and kept by her until it was invested in land, by her husband, who took the title in his own name, and afterwards conveyed it to her, it cannot be held that he had reduced the money to his possession and that the land was his.</p>

— Eon. John W. v McElhinney, Judge. (1) There was no evidence that “defendant received plaintiff as a passenger for hire,” and that question should not have been submitted to the jury. An instruction should not be given if there is no evidence upon which to base it. Paddock v. Somes, 102 Mo. 226; Wilkerson v. Eilers, 114 Mo. 245; Holden v. Railroad, 177 Mo. 469; Reno v. Railroad,Ci79 S. W. 464.

Louis City Circuit Court . — Eon. Daniel D. Fisher, Judge. (1) Fraud is a question for the jury — the court invaded the domain of the jury. Slight circumstances warrant submission of the issue of fraud to the jury. Hack v. Rollins, 158 Mo. 182; Bank v. Brunswick & Co., 155 Mo. 602; Tracy v. McKinney, 82 Mo. App. 506; Robertson v. Shepherd, 165 Mo. 360; Paquin v. Millildn, 163 Mo. 79.

— Row. Jno. P. Butler, Judge. (1) Where land is purchased by one in his own name, with the money of another, a resulting trust is created by application of law, which follows the ownership of the money. And where a part only of the purchase money is furnished by the beneficiary, the trust is for a proportionate share of the land bought.

<p>1. PRACTICE: Irregularities in Judgment. Ordinarily the appellaté court will not entertain a writ of error to correct an irregularity in the judgment, but will require the complaining party to bring his proceeding in the trial court, as the statute authorizes him to do. But where three years have gone by since the judgment was rendered and plaintiff in error can have no remedy in the trial court, this court will entertain his writ of error timely sued out.</p> <p>2. -:-: Suit on Bonds. Where the suit is on a bond for the doing of a collateral thing, such as the statute contemplates shall be merged in a judgment and that execution shall issue for the amount of the damages assessed and the judgment shall stand as security for further breaches, the judgment should not declare that it is to be satisfied on the payment of the damages assessed; and if it does so declare, plaintiff is entitled to have it corrected so as to make it a security for further breaches.</p> <p>3. ———: -: -: Lease: Merger. Where the lessee for ninety-nine years agreed, among other things, to pay taxes, and a bond was given by him to fulfill his contract, and suit is brought on that bond for failure to pay the taxes for one year, the bond became merged in the judgment, and that judgment should not be satisfied on the payment of the damages assessed for that breach, but manifestly should stand as security for further breaches. The bond being coextensive with the lease, the judgment into which it was merged should also be coextensive with the lease.</p>

Louis City Circuit Court. — Hon. SeL den P. Spencer, Judge. First. The proceedings of the second commissioners were -void because they were without warrant of law. (1) The right of eminent domain is construed with the utmost strictness. Ells v. Bailroad, 51 Mo. 200; Belcher Sugar Co. v. Grain Co., 82 Mo. 121; State v. Farrelly, 36 Mo. App. 282. (2) The statute authorizing it must be strictly adhered to, and every prerequisite to the exercise of jurisdiction observed.

— Eon. D. E. Eby} Judge. (1) No proceedings can be maintained, nor judgment had, against the plaintiff in her individual capacity for matters connected with, or in any way growing-out of the administration of the estate of her wards, while she was guardian and curator.

— Eon. J. W. Alexander, Judge. The court erred in permitting plaintiff, over defendant’s objection, to introduce evidence showing that two or three days subsequent to the accident the defendant caused the walk to be torn away and replaced with a new one. Such evidence was extremely prejudicial and damaging to the defendant, in view of the fact that the strongly contested question in this case was as to the defendant’s negligence in maintaining the walk.

<p>1. SPENDTHRIFT TRUST: Creation: Trustee: Execution. A spendthrift trust is the term commonly used to designate a trust created for the maintenance of the cestui que trust, and to secure the fund against his improvidence. But where he is given an absolute right to the fund or its avails, such as the right to occupy the land and receive its income, or where the land is conveyed to him upon the simple condition that it shall not be subject to his debts, no spendthrift trust arises or is created, and his interest may be sold under execution. So that a deed to a grantee upon the express condition that the land shall not be liable to his debts nor sold or incumbered by him for thirty years, and if he attempts to sell or incumber it the title shall vest in the grantors, but that if at the end of thirty years, he has neither sold nor incumbered it the title shall vest absolutely in him, does not create a spendthrift trust, for five reasons: first, no trust estate is.by it created; second, no trustee is appointed; third, his interest is not limited to the enjoyment of the income, nor is his right simply the right of support; fourth, an absolute estate in fee simple is vested in him; and, fifth, he is given the right of possession. Hence, the land can be sold under execution to satisfy a judgment against him.</p> <p>2. -: Absolute Conveyance: Defeasance. After an absolute conveyance in fee simple, a clause that the grantee shall not mortgage or dispose of the property, is repugnant and void.</p> <p>3. -: -: Debts: Execution. A condition attached to an absolute fee that land conveyed directly to the grantee shall not be subject to his debts is in restraint of alienation and void. Notwithstanding such condition, the land is subject to sale under execution against the grantee for the payment of his judgment debts.</p> <p>4. EVIDENCE: Contradictory of Pleading. Where defendant’s answer alleges that the judgment under which the land in suit in ejectment was sold to plaintiff was a final judgment, the court should exclude defendant’s offer to the effect that motions for new trial and in arrest in that suit were still pending at the time of the trial in this, for that evidence would tend to contradict defendant’s answer.</p> <p>5. HOMESTEAD: Sheriff’s Deed Under Execution. The statute does not require the sheriff’s deed to land sold under execution to recite that he gave the defendant the opportunity to select his homestead before levy was made on the rest of his land. And where the sheriff’s deed recites that commissioners were appointed and that they set apart a certain portion of defendant’s land as a homestead, and the defendant in a suit in ejectment offers no evidence tending to prove that the sheriff had failed in his duty to afford defendant an opportunity to select his homestead, it will not be held that the sheriff’s deed is void because it does not affirmatively show that defendant was given that opportunity.</p> <p>6. PRACTICE: Ejectment: Treated as Case in Equity. Where the answer of defendant in ejectment set up an equitable defense but asked no affirmative equitable relief, the case remained one at law. But where appellant failed to preserve any exception to the action of the court in treating the case as one in equity, but acquiesced therein, he is n'ot in a position on appeal to assign that action as error.</p>

Transferred from St. Louis Court of Appeals. (1) The- information was filed by tbe prosecuting attorney ex officio, and therefore the burden is on respondent to show that he rightfully and lawfully holds and uses the office of school director. State ex inf. v. Yallins, 140 Mo. 527; State ex inf. v. Berkely, 140 Mo. 184; State ex inf. v. Hogan, 163 Mo. 52; State ex rel. v. McCann, 88 Mo. 386.

— Eon. Jno. W. Eenry, Judge. (1) Under the contract the Missouri Pacific was bound to protect the Air Line track from the encroachments of the river at every point between the Air Line junction and a point four hundred feet east of the Santa Fe overhead crossing. 17 Am. & Eng. Ency.

Louis City Circuit Court. — How. Horatio D. Wood, Judge. (1) ' The employer is charged with the duty of not subjecting his servants to risks by his own negligence. And a servant cannot assume to bear the consequences of the master’s negligence. The employer is required to use ordinary care in providing secure instrumentalities which the servant is required to employ in his work. Curtis v. McNair, 173 Mo. 280; Wendler v. Peoples’ IT.

<p>1. DIGNITY OF THE LAW: Reasonable Results. Courts should he diligent to see that the law he applied with the aid of right reason to produce reasonable results in the every day affairs of life. The gravity necessary in the administration of justice to entitle the law to respect, necessitates that mere caprice of jurors and practical jokes have no part therein.</p> <p>2.. NEGLIGENCE: Serious Injuries: Verdict of One Dollar: Set Aside. If plaintiff was exercising due care and the city was negligent in hot furnishing her a safe place in which to walk along its public street, and as a result of that negligence her ankle was broken and dislocated and she was otherwise seriously injured and remains a cripple, the instructions being correct, a verdict of one dollar for her will be set aside. In such case the verdict will not be considered as in effect a finding for defendant, but as a disregard of instructions, etc.</p> <p>3. -: Stone in Sidewalk: Question for Jury. A large mill stone was on a level with the sidewalk on its inner side, but extended more than two feet into the sidewalk towards the street, and there was five inches above the plane of the sidewalk. Between it and the curb was a wide extent of sidewalk upon which she could have safely walked. The stone had been there for 27 years, and was in front of a gate to a residence lot eighteen inches above the level of the stone, the premises thereon being set back. Held, that it was for the jury ' to say whether or not the city was negligent in permitting the stone to remain in the sidewalk. Held, also, that the long period of time it was allowed to remain there does not render the city’s act any the less negligent if it was negligence under the circumstances at the time.</p> <p>4. -: Contributory Negligence: Pedestrian: Question for Jury. A washer-woman 68 years old, acquainted with the sidewalk, on her way home about nine o’clock at night, had in mind that at one point a large stone extended from the inner side of the sidewalk outwardly towards the street and at its outer edge rose five inches above the walk, but there being no light and the night dark, she was confused as to her proximity to the projection and thinking she was well outside the line of danger, struck it, was thrown down, and badly injured. Held, that she was not guilty of such want of care' as defeats her recovery as a matter of law, and whether or not her injuries were due to- her own negligence was a matter for the jury.</p> <p>5. -: Tori: Setting Aside Small Verdict. The doctrine that in actions for damages for personal torts the court might set aside a verdict excessively great as indicating passion or prejudice or misconduct on the part of the jury, but would not meddle with a verdict ridiculously small, is not based on substan- • tial reason, and is no longer the law.</p> <p>6. -: -: -: Duty of Court. Judges should set aside a verdict, either excessively large or ridiculously small, in actions of personal tort, where the result reached shocks the understanding and cannot be fairly justified on any hypothesis except misconduct or prejudice or disregard of instructions.</p>

— No». E. M. Hughes, Judge. (1) The first count of the petition does not state a cause of action against a real estate broker — no authority is alleged to collect the purchase money. Stewart v. Wood, 63 Mo. 252; Butler v. Donnan, 68 Mo. 298; Chambers v. Short, 79 Mo. 204; Smith v. Allen, 86 Mo. 178; 4 Am. and Eng. Ency. Law (2 Ed.), 965.

— Row. David R. Ely, Judge. (1) The contract sued on was invalid for the following reasons: 1st. The record of the county court relating to said contract was not broad enough and did not contain the terms of the contract. A contract made with the county court must be proved by the record alone, and the record itself must contain all the terms of the contract, or the contract must be incorporated in the record. Johnson Co. v. Wood, 84 Mo. 489; Kane & Co. v. Sch.

<p>Appeal from St. Louis City Circuit Court. — Now. Walter B. Douglas', Judge.</p> <p>(1) The trial court committed reversible error in refusing to grant defendant a continuance. State v. DeWitt, 152 Mo. 76; State v. Bowman, 161 Mo. 88; State v. Clark, 147 Mo. 20; State v. Kindred, 148 Mo. 270; State v. Maddox, 117 Mo. 667; State v. Anderson, 96 Mo. 241; State v. Bryant, 93 Mo. 273; State v. Strattman, 100 Mo. 540; State v. Wilson, 85 Mo. 134; State v. Bradley, 90 Mo. 160; State v. Moore, 121 Mo. 514; State v. Hickman, 75 Mo. 416; State v. Warden, 94 Mo. 648. (2) Error was committed in allowing alleged photographs and diagrams of the room and the furniture therein, where the killing occurred, to he introduced in evidence. (3) The court erred in allowing attorney Krone to testify to confidential communications made to him by the defendant. The relation of attorney and client existed between Krone and defenddant according to Krone’s testimony and the testimony of defendant. (4) The closing argument made by the assistant circuit attorney was prejudicial to defendant. State v. King, 64 Mo. 591; State v. Lee, 66 Mo. 165; State v. Young, 105 Mo. 634; State v. Fischer,’184 Mo. 460.</p> <p>Objection is made to certain statements made by the prosecuting officer in his closing argument to the jury. An examination, however, of these statements given with the objections, show that no prejudice was worked or injustice was done the defendant on account thereof. In the first place, the evidence was introduced just as stated by the attorney to the. jury; and secondly, no reason was given for the incompetency of the testimony at the time it was introduced</p> <p>A motion for a continuance is addressed to the sound discretion of the court, and under the facts in this case, it cannot be said that there was an abuse of that discretion. State v. Simms, 68 Mo. 305; State v. Banks,-118 Mo. 117; State v. Riney, 13-7 Mo. 102.</p>

<p>1. .BUCHANAN CRIMINAL COURT: Act not Local or Special: Constitutional Law. Legislation which is authorized by the Constitution cannot be regarded as local or special, within the meaning of the constitutional prohibition, though its application is purely local. Whether an act of the Legislature be a local or a general law must be determined by the generality with which it affects the people as a whole, rather than by the extent of the territory over which it operates; and if it affects equally all persons who come within its range, it can neither be special nor local within the meaning of the Constitution. The provision of section 31, article 6 of the Constitution, that, “The General Assembly shall have no power to establish criminal courts, except in counties having a population exceeding fifty thousand,” was not intended to require the Legislature, in order to exercise this power, to establish a criminal court in every county in the State having the required population. And, therefore, the act, passed in pursuance of this provision, creating a criminal court in Buchanan county, which is conceded to have a population exceeding fifty thousand, is not a special or local law, but is a valid and constitutional enactment.'</p> <p>2. -: -: Necessary Incidents: Implied Power. The act creating the Buchanan County Criminal Court being constitutional, the power exists by implication to provide for every necessary incident, without which the court could not be properly organized. And, therefore, the fact that the act “imposes duties upon the sheriff and clerk of the court and incidental expenses on the county not common to all sheriffs, clerks and counties throughout the State,” does not render it unconstitutional.</p> <p>3. LEGISLATIVE ENACTMENT: Recognition and Presumption of Validity. Where the validity of an act has been for many years recognized by the Bench and Bar and the people of the State, the court should approach the question of its constitutionality with great caution, and the presumption being in favor of its validity, it should be satisfied of its invalidity beyond a reasonable doubt, before it would be warranted in holding it to be in conflict with the Constitution.</p>

Louis City Circuit Court. — Hon. Daniel G. Taylor, Judge. (1) The indictment is insufficient and does not advise the defendant of the character of the accusation against him. It is indefinite and uncertain, and fails to define in what manner a “policy” was made or established, and fails to define what is meant by a “ policy. ’ ’ (2) The testimony is clearly insufficient to support the verdict or conviction.

Louis City Circuit Court. — Ho». Daniel G. Taylor, Judge. The verdict and judgment are insufficient in law. The defendant was charged with having aided and assisted in establishing a lottery “as a business and avocation.” This allegation and the proof thereof was necessary. State v. Pomeroy, 130 Mo. 497; State v. DeWitt, 186 Mo. 61.

— Row. Frank B. Bearing, Judge. (1) A jury has no right to alter the disposition of the testatrix’s property simply because they may think she did not do justice to her family, and this rule applies with equal force to the courts. Hughes v. Rader, 82 S. W. 54; Tibbe v. Camp, 154 Mo. 545; Berberet v. Berberet, 131 Mo. 411; Lorts v. Wash, 175 Mo. 502.

— Eon. A. M. Woodson, Judge. (1) The trial court erred in refusing to sustain a demurrer to the evidence.