Volume 194 — Missouri Reports

Transferred from St. Lonis Court of Appeals. (1) The court erred in sustaining defendant’s demurrer to plaintiff’s evidence and refusing to submit the case to the jury. Penney v. Railroad, 71 Mo. App. 577; Klockenbrink v. Railroad, 81 Mo. App. 351; Chamberlain v. Railroad, 133 Mo. 587; McAndrews v. Railroad, 83 Mo. App. 233; Morgan v. Railroad, 159 Mo. 262; Railroad v. Ives, 144 U. S. 408.

Prohibition. (1) (a) It stands confessed that the object and purpose of the proceedings before Justice Stobie were not to punish relators for a trespass upon the property of the Delmar Jockey Club, or to hold them to trial for the commission of an alleged misdemeanor, in unclasping or throwing down the chain across the entrance to said grounds, but that said proceedings were begun and prosecuted “to protect from arrest persons engaged upon said Delmar race track in violating…

(1) The constitutionality of sections 8983 and 8984, Revised Statutes 1899, is not now before the court for determination. Prom a consideration of the provisions of sections 8983 and 8984, it is clear that it was the intention of the Legislature to provide that service of the notice mentioned in these sections upon the attorneys of record should he service upon the respondent.

<p>1. ATTORNEY: Elected Judge: Bill of Exceptions. A circuit judge who has become such since the trial of a cause in which he was attorney for one of the parties is incompetent to sit in the case thereafter for the purpose of settling the bill of exceptions without the express consent of the parlies, except to order the election of a special judge.</p> <p>2. -: -: -: Election of Special Judge. Where the circuit judge had been counsel for one of the parties at the trial and was, therefore, after his election, incompetent to sit in the case for the purpose of settling the hill of exceptions, .except to order the election of a special judge, the appellant must take steps to have a special judge elected during the life of the order extending the time for filing the bill and while the court is in session. The application for the election of the special judge made during the vacation of the court, even though made within the life of the order, is not sufficient.</p>

— Now. J. L. Fort, Judge. (1) Plaintiff’s petition does not state a cause of action for condemnation because, in tbe first place, it fails to show compliance with tbe Federal laws authorizing the construction of said bridge. The Federal act, of which all the courts take judicial notice, as the supreme law of the land (U. S. Const., art. 6, sec. 2), prescribes a number of preliminary steps essential to the construction of the bridge.

— Ho». John W. McElhinney, Judge. The court erred in refusing to give the peremptory instruction offered by the defendant at the close of all the evidence. There were five distinct allegations of negligence made by plaintiffs in their petition, but there was no evidence to sustain any of them. Minnier v. Railroad, 167 Mo. 99; Hogan v. Railroad, 150 Mo. 36; Berring v. Medart, 56 Mo. App. 443; Smith v. Railroad, 69 Mo. 32.

— Ho». B. J. Casteel, Judge. (1) The court erred in permitting defendant to be manacled and shackled in the presence of the trial jury, and a new trial should have been granted. State v. Kring, 64 Mo. 591,1 Mo. App>. 438; People v. Harrington, 42 Cal. 165; State v. Craft, 164 Mo. 650. (2) The record should show that the defendant was present during the trial and at the time verdict was received.

<p>1. INFORMATION: Verification. It is not necessary that an information he based upon the actual knowledge of the prosecuting attorney, but it is only required to be verified upon his information and belief.</p> <p>2. -: -: Waiver. When defendant files no motion to quash the information, he waives the question of verification.</p> <p>3. JURY: Sworn to Try Case. Where the record entry, after naming the twelve jurors, proceeds: “twelve good, lawful men, of the body of the county, who are duly tried, impaneled and sworn to try the cause,” etc., it cannot be said that the jury was not sworn to try the ease. It is not necessary that the oath as administered should be entered of record.</p> <p>4. DEFENDANT’S PRESENCE AT TRIAL: Presumption. When the record shows that defendant was present at the commencement of the trial, it will be presumed, in the absence of evidence to the contrary, that he was present during the whole trial, and at the time the verdict was received.</p> <p>6. HANDCUFFING PRISONER. The court did not err In permitting defendant to be handcuffed while being conducted from the jail to the courthouse and back, especially since it appears from the sheriff’s affidavit that defendant was a dangerous and deperate man and that he had broken jail on two other occasions.</p> <p>6. ASSAULT WITH INTENT TO KILL: Information. Information for assault with intent to kill held, sufficient.</p> <p>7. INSTRUCTION: Presumption of Innocence: Reasonable Doubt. An instruction on presumption of innocence and reasonable doubt held not improper.</p> <p>8. CONTINUANCE: Absent Witness. Where there is no probability that, if the absent witness had appeared and testified as indicated in the affidavit, it would have had any effect on the result of the trial, the trial court commits no error in overruling an application for a continuance based on the absence of such witness.</p>

— Bon. Jno. W. Wofford, Judge. (1) There ought to have been a verdict directed for defendant at the close of the case if only proper and legitimate evidence had been admitted.

Shannon Circuit Court. — No». Wm. N. Evrns, Judge. A conviction of an assault, with intent to ravish, is erroneous, where the evidence discloses the perpetration of the intended crime. State v. Lacey, 111 Mo. 513; sec. 2361, R. S. 1899; State v. Scott, 172 Mo. 543. Defendant was charged with the crime of rape; hut, prior to the last trial, the prosecuting attorney elected to try him on the charge of assault with intent to rape.

— Eon. Jno. W. Wofford, Judge. (1) The State rested its case on the theory that recent possession of stolen property establishes a prima facie case of guilt against the one in possession. But the property must be sufficiently identified. Gray v. Parker, 38 Mo. 160; Kaufman v. Schilling, 58 Mo. 218 ; Mahoney v. Smith, 7 Mo. App. 578.

<p>1. REPUTATION OF DEFENDANT: When Assailed. The reputation of a defendant, charged with a criminal offense, cannot be assailed by the State until defendant has offered proof of his reputation.</p> <p>2. -: For Violence and Turbulence: Inadmissible. A reputation for being violent and turbulent is not tantamount to a reputation for general bad character, and, hence, is not admissible to impeach the credibility of defendant as a witness.</p> <p>3. -: -: Character Not in Issue: Reversible Error. "Where a defendant has not put in issue his reputation for peace and quietude, it is not competent for the State to prove his reputation for turbulence and violence. Such testimony is directed to the impeachment of defendant in his character as a defendant, and not in his character as a witness, and its admission constitutes reversible error.</p> <p>4. -: -: Disproved by Defendant: Waiver. The error committed in permitting the State to show defendant’s character for violence and turbulence, when he has not put his character in issue, is not cured by defendant’s afterwards introducing testimony to disprove the same.</p> <p>5. -: Cross-Examining Witness: Entering into Details. While the State has a right, on cross-examination, to test the knowledge of a witness testifying to defendant’s good character, by inquiring of him if he has not heard of conduct tending to show that defendant was not a peaceable, law-biding man, it should not go into details, such, for instance, as the number of shots defendant was supposed to have fired at a certain house.</p> <p>6. EVIDENCE: Physical Condition of Deceased. Defendant’s testimony tending to show a great disparity in size and weight between him and the deceased, it was not error to permit the State to show the health and physical condition of the deceased before and at the time of the killing.</p> <p>7. -: Threats. While the alleged threat of deceased, made a month or six weeks prior to the homicide, that defendant “would get killed or kill somebody, over that girl, if he kept on going with her,” was vague and indefinite, it should have been admitted' if offered in connection with or after alleged threats made on the night of the homicide.</p> <p>8. SELF-DEFENSE: Instruction. An instruction that “unless the facts constituting such reasonable cause” of apprehending danger “have been established by the evidence in the cause, you cannot acquit the defendant on the ground of self-defense, even though you may believe he really thought he was in danger,” held, proper.</p>

— Ho». Argus Cox, Special Judge. (1) Calhoun, who drove the defendant from Archie to Burdette, was permitted to testify, over the objection of defendant, as follows: “He said he was a straight shot and he was a game man and I would find it out before I got back. ’ ’ This was on the road between Archie and Burdette, and was introduced as a threat. In this the court erred. It did not refer to deceased or any class to which he belonged. It was not a part of the res gestae.

— No». Henry G. Biley, Judge. (1) The court erred in overruling defendant’s ■application for a continuance. (2) The court erred in overruling defendant’s application for a change of venue. (3) The cohrt should have given the instruction on justifiable homicide in the fourth degree. R. ■S. 1899, sec. 1833. (1) The indictment is sufficient; it contains every element necessary to charge defendant with murder in the first degree.

Louis City Circuit Court. — -No». G. Orrick Bishop, Judge. Under section 2169, Revised Statutes 1899, it is the cohabitation within this State which constitutes the crime, if the second marriage was solemnized in another State, when one of the parties thereto had a husband or wife living, in any case where such second marriage would be punishable if contracted or solemnized within this State.

<p>ASSAULT WITH INTENT TO KILL: Evidence. The evidence in this case, which was a prosecution for assault with intent to kill, is held sufficient to support the verdict finding defendant guilty of such an .assault, without malice.</p>

<p>APPELLATE JURISDICTION: Local Option: Constitutional Question: Abandonment: New Trial. Defendant was convicted of the violation of the Local Option law, which is a misdemeanor. Subsequently to the trial defendant abandoned all objections to the constitutionality of the law except two, and these two-were not assigned in the motion for new trial, nor did the-motion for new trial in any way challenge the constitutionality of the law. Held, that the Supreme Court has no jurisdiction, but the appeal should go to the proper Court of Appeals.</p>

— No». Jno. T. , Moore, Judge. (1) The information, which was duly verified, is in proper form and contains the necessary averments.

— So». E. C. Timmonds, Judge. (1) The remarks of the attorney for the State in his opening statement concerning the Claypool difficulty must have influenced the minds of the jurors. The subsequent direction of the court could not remedy the wrong that had already been done.

— lion. Jno W. Wofford, Judge.- (1) The law regulating tire practice of dentistry in this State, and creating a State Boárd of Dental Examiners (Laws 1897, p. 166), is not unconstitutional and void because violative of that provision of the Constitution (sec. 28, art. 4) which requires that no bill shall have more than one subject.

Louis City Circuit Court. — Eon. Robert M. Foster, Judge. (1) As will be seen from the information in this case, the charge is assault with intent to Mil; the gist of the offense being the intent, it is necessary for the State to not alone prove an assault, but to prove the intent with which it was committed, and the State having wholly failed to prove the intent, and having failed to prove what the weapons nsed were, or to prove that they were deadly weapons, and having…

— Hon. Jas. T. Neville, Special Judge. (1) The indictment is so drawn as to deny to the accused information concerning the nature and cause of the accusation against him, and is violative of his constitutional rights as written in article 2, section 22, Constitution of Missouri. (2) Felonious intent being the gravamen of the offense attempted to he charged against defendant, that felonious intent must he specifically pleaded in order that the indictment may be sound.

Louis City Circuit Court. — Hon. Daniel G. Taylor, Judge. (1) Under the testimony the court should have directed a verdict for the defendant. (2) The. court committed error in giving an instruction to the jury upon felonious wounding. Under the testimony of the State’s witnesses, if it was to he believed, the defendant was guilty of felonious assault. Under the testimony of the defendant’s witnesses, the defendant was justified.

— -No». Jno. W. Wo ford, Judge. (1) The right to attach an affidavit made on information and belief, without venue or seal, without notice to defendant, and without re-arraignment, which is the only way to inform a defendant, is most seriously questioned. (2) The court erred in ruling out the question asked Dr. McDonald, bn cross-examination. State v. Speyer, 182 Mo. 92; 3 Witt. & B. Med. Jur., p. 189.

— Hon. John'T. Moore, Judge. (1) The' instructions fully and fairly presented the case to the jury, hut, as defendant failed to make any objections to. same in his motion for a new trial, that point has been waived. State v. Whitsell, 142 Mo. 474; State v. Headrick, 149 Mo. 396. (2) In his motion for a new trial defendant alleges that he had discovered new and material evidence.

— Hon Charles D. Stewart, Judge. (1) The justice lost jurisdiction of the case by-taking it under advisement and in not rendering judgment on the day of trial and at the place of trial, when the canse was submitted to him. A jury must be kept together, even in civil cases, until a verdict is rendered, or they are discharged. Sec. 4000, R. S. 1899. The same is true of criminal cases. Sec. 2771, R. S. 1899.

— lion. F. B. Bearing, Judge. (1) The service of summons in the partition suit gave the court no jurisdiction over appellant in this cause and the judgment as to him was void. Fischer v. Siekmann, 125 Mo. 165 ; Campbell v. Laclede Gas Light Co., 84 Mo. 352; Higgins v. Beckwith, 102 Mo. 456; Payne v. Masek, 114 Mo. 631; Shaw v. Gregorie, 35 Mo. 342; Westmeyer v. Gallenkamp, 154 Mo. 34. (2) The thirty-year Statute of Limitation is no bar to plaintiff in this case.

— Row. George F. Longan, Judge. (1) The court erred in giving instruction 4 upon the part of respondent, because said instruction disregards the prayer for damages in respondent’s petition, because it permits respondent to recover for loss from his means of livelihood without any limitation as to the amount when the petition places the same at $250, and permits a recovery for surgeon’s hire for $350, when the petition limits the same to $200.

Transferred from Kansas City Court of Appeals. (1) It is the settled law in this State that, in an action for fees, or for salary, the title to- public office cannot be determined. Quo warranto is the exclusive-proceeding in this State by which title to public office can be tried and determined, except in contested elections which are determined by special statutory proceeding.

<p>1. NEGLIGENCE: Crossing Street: Not Looking: No Beil: Concurring Negligence. Plaintiff did not slacken his pace or look to see if a car was coming from the east from the time he left the sidewalk at the northeast corner of the intersecting streets and started to cross to the southeast corner until he was struck by a west-bound car, but was looking towards a car which was approaching from the west, and while observing the movement of that car he proceeded to cross and as he reached the north track a west-bound car, running very rapidly, without ringing any bell or giving other signal, struck him just as he saw it. Before leaving the sidewalk he looked east, but saw no car. There was no evidence that the grip-man, by the exercise of due care and diligence, could have stopped the car, after plaintiff left the sidewalk, in time to have avoided the accident. Held, that the court rightly sustained a demurrer to the evidence.</p> <p>2. -: Expert Witness: Stopping Train. Where it has not been shown that the witness had, by practical tests and observation, qualified himself to express an opinion as to the distance within which a car could have been stopped without injury to the passengers, the court should not permit him fo testify within what distance one of defendant's cable cars, running at its usual rate of speed, could be stopped.</p>

— Hon. H. C. Riley, Judge. ° (1) It is admitted that the land in dispute belongs to the plaintiff unless his grantor, Stephen Bird, gave it away by agreeing to an incorrect division line across the said accretions. (2) We deny that there was in fact ever an agreed line between Bird and Keyser, and both William Keyser and Stephen Bird who it is claimed agreed to this line swear that there was no such an agreement.

Louis County Circuit Court. — Bow. Jno. W. McElhirmey, Judge. (1) By statute, where a disability is suggested by the adverse party, it is the duty of the court to continue the case until a representative can be brought in. R. S. 1899, secs. 756, 757. (2) It is the duty of a guardian of an insane person to prosecute and defend all actions. R. S. 1899; sec. 3667; Hayes v. Miller, 81 Mo. 424; Reed v. Wilson, 13 Mo. 30.

Louis County Circuit Court. — Hon. Jno. W. McElMnney, Judge. Before tlie court permits the loss of land through mere possession, a technicality, the law should he rigidly applied. Huckshoon v. Hartwig, 81 Mo. 648. James Miller became trustee under deed of Hoke in 1852, and continued such to September, 1892, and a trustee of the church to November 14, 1895.

— Hon. James T. Neville, Judge. (1) Marriage settlements are not affected by subsequent divorce so as to divest rights which have vested thereunder, unless by express terms it is so decreed in the divorce proceeding. 9 Am. and Eng. Ehcy. of Law, 8601; 19 Am. and Eng. Ency. of Law, 1230,1248; Saunders v. Saunders, 144 Mo. 482; Kinzey v. Kinzey, 115 Mo. 501; Doyle v. Rolwing, 165 Mo. 238; Schuster v..

Transferred from St. Lonis Court of Appeals. (1) The petition declares both upon the covenant of seizin and that of general warranty, and the breach alleged shows a violation of both covenants. Allen v. Kennedy, 91 Mo. 328. (2) Although more specific in its allegations and changed to meet the different state of facts declared upon, the petition is in substantially the form set out in White v. Stevens, 13 Mo.

Louis City Circuit Court. — -Roto. Robert M. Foster, Judge. (1) The islands sued for existed prior to 1895, and in that year they were granted to St. Charles county for school purposes (sec. 8346, R. S. 1899), granting all islands belonging to the State then formed. They were surveyed, sold, patented and the patents recorded by said county, pursuant to secs. 8347, 8197 and 8198, Id., and sec. 8248, Id., makes them prima facie evidence of title.

— Hon, Hugh Dabbs, Judge. (1) Two separate several contracts were admitted in evidence to prove the joint contract declared on. Held: it was upon the distinct ground that it was the £‘granting of a new trial” when there had been an order “ setting aside the judgment and granting another trial of the issues.” Coatney v. Railroad, 151 Mo. 40.

- — Hon. Joseph D. Perkins, Judge. (1) The court did not err in the admission of evidence, because all decisions upon all questions were properly decided. The court did not err in giving instruction 1.

Louis Court of Criminal Correction.— Son. C. Orrick Bishop, Judge.

Francois Circuit Court. — Hon. Samuel Davis, Special Judge. (1) It is the absolute right of the accused to be tried in the county where the ofíense is charged to have been committed, but the Legislature ¡considered that prejudice and popular feeling often run so high, that the great essential, to-wit, “an impartial jury,” could not be obtained in the county, and wisely provided for the protection of the accused by directing that when, on his application, this was shown to…