Volume 199 — Missouri Reports

Grenevieve Circuit Court. — Hon. Chas. A. Killian, Judge. (1) The bill of exceptions as to all matters occurring in the St. Francois Circuit Court should and must have been filed in the St. Francois Circuit Court, or with the clerk thereof, and not with the clerk of the Iron Circuit Court. Keen v. Schnedler, 92 Mo. 525. (2) There is nothing before this court to review.

— Ho#. James Gibson, Judge. (1) There was no express contract between the parties. It was plaintiffs’ duty to render the services suéd for under the retainer from the Gulf Company and to get pay therefor from that company. 2 Clark & Skyles, Law of Agency, sec. 691, p. 1507; Stewart v. Emerson, 70 Mo. App. 486.

— Hon. G. A. Den-ton, Judge. (l) The deceased, as shown by the undisputed facts, was not only guilty of negligence directly contributing to his own death, hut was guilty of inexcusable recklessness. He had been an old, experienced section man. He had a time card, which informed him that the Joplin passenger train was due to leave the Union Station at 8:10 a. m. and was due to arrive at Southwest Junction at 8:25. This train passr ed by every morning at the- same hour.

Prohibition. (1) Under tbe decisions of tbis court in State ex rel. v. Spencer, 164 Mo. 23, and State ex rel. v. Spencer, 166 Mo. 279, it is settled that it was incumbent upon tbe contestant to give tbe notice required by section 7057 of tbe Revised Statutes with respect to tbe contest proceeding, and that tbe failure of tbe contestant to give such notice constitutes a jurisdictional defect warranting tbe issue of tbe writ of prohibition sued for in this action.

— Hon. Samuel Davis, Judge. (1) The third-ground of negligence which charges the frightening of the team is thoroughly eliminated from the case both by law and by the evidence. Seeing a person in danger it became the duty of the company to give him the usual and ordinary danger signals and these are all shown to have been given. Further, the evidence fails to disclose the frightening of the team.

— Ho». Argus Cox, Judge. (1) The instructions were full and fair, and presented the case liberally for the defendant. Their form and substance have often met with the approval of this court. (2) Where there is substantial evidence tending to show defendant’s guilt, this court will not undertake to weigh the evidence, but will defer to- the action of the jury in such matters. State v. Smith, 190 Mo. 706; State v. Williams, 186 Mo-. 128; State v. Williams, 149 Mo. 500.

— How. H. W. Johnson, Judge. The record must show that the jury was not only impaneled but was also sworn to try the issues in the cause. State v. Potter, 18 Conn. 175; Zapf v. State, 35 Fla. 210; Rich v. State, 1 Tex. App. 209; Stephens v. State, 33 Tex. App. Cr. 101; Lyman v. People; 7 111.

Louis City Circuit Court.— Hon. Eobt. M. Foster, Judge. (1) The State’s evidence was properly admitted; the record of defendant’s former convictions and terms in the State penitentiary certainly showed that he was an habitual criminal. R. S. 1899, sec. 2379; State v. Carr, 146 Mo. 1. (2) The evidence abundantly establishes the fact of defendant’s presence at the front door of Seiving’s drug store on the night of the robbery, and at the very time of the robbery.

Jno. P. Butter, Judge. (1) The court erred in refusing to quash the amended information for the reason that the original information only charged manslaughter and could not he so amended as to charge murder. (2) Court erred in permitting J. A. Collet, assistant hired counsel, to close the argument for the State over the objection and protest of the defendant.

— How.. John T. Moore, Judge. The information is based upon section 1838, Revised Statutes 1899', which appellant claims is out of line with the trend and spirit of the laws of Missouri, and unconstitutional. Secs. 22, 28 and. 30, art. 2, Constitution; Smart v. Kimball, 43 Mich. 448; State v. Hamey, 168. Mo. 218. Defendant’s assignment of error that the carnal • knowledge statute, section 1838, is unconstitutional has been decided adversely to his contention.

Louis City Circuit Court. — How. Robt. M. Foster, Judge. The court failed to instruct the jury on the law governing self-defense. This the court should have done, even though there was no testimony to justify such instruction except that of the defendant alone. State v. Palmer, 88 Mo. 573; State v. Partlow, 90 Mo. 626; State v. Banks, 73 Mo. 592; State v. Brown, 104 Mo. 373; State v. Hollingsworth, 156 Mo. 178; State v. Fredericks & Langan, 136 Mo. 51.

Louis City Circuit Court. — Hon. Jas. E. Withrow, Judge. (1) In his motion for a new trial, defendant alleges that he has discovered new and material evidence; but does not even state what said evidence is, which, of course, is insufficient to give him a new trial. State v. Sublett, 191 Mo. 175; State v. Bowman, 161 Mo. 94; Graham & Wat. on New Trials, 470. (2) The evidence clearly shows that defendant is guilty of both burglary and larceny.

Francois Circuit Court. — How. Bobt. A. Anthony, Judge. (1) The prosecutrix in a trial for rape must he corroborated, and where her testimony as to the perpetration of the alleged offense is explicitly contradicted by the defendant, thus - creating equipoise of oath against oath, the evidence will be insufficient to support a conviction. State v. Patrick, 107 Mo. 147; State v. Dusenberry, 112 Mo. 277.

— Eon. E. M. Dearing, Judge. (1) The information, which was duly sworn to by the prosecuting attorney, is sufficient. It follows the language of the statute, and the approved form; the second count was the one upon which defendant was convicted. State v. Chumley, 67 Mo'. 41; State v. Seward, 42 Mo. 206; Kelley’s Crim. Law, sec. 579.

<p>Appeal from Maries Circuit Court. — Hon. Wm. H. Martin, Judge.</p>

<p>Appeal from Henry Circuit Court. — Hoot. Chas. A. Denton, Judge.</p>

Francois Circuit Court. — He». Bobt. A. Anthony, Judge. (1) The State’s evidence was properly admitted, even though some of it tended to prove that defendant shot and killed a man different from the one that he was charged with killing. Every thing that was done and said by defendant, and by the others, at the time of the homicide, constituted a part of the res gestae.

— How. Hugh Dabbs, Judge. (1) Leave was granted defendant to file his bill of exceptions, but no bill was filed. The clerk of that court has copied into the record proper what purports to be the motion for a new trial, the motion in arrest of judgment and the instructions given. .But, in the absence of a bill of exceptions, said matters cannot be considered, as they have no place in the record proper.

— Hon. John T. Moore, Judge. Instruction 3, on the presumption arising from recent possession of the stolen property, is too narrow and restrictive, in view of testimony of good character. State v. Bruin, 34 Mo. 541; State v. Kelley, 73 Mo. 608; State v. Sidney, 74 Mo. 390; State v. Crank, 75 Mo. 406; State v. North, 95 Mo. 615; State v. Walker, 194 Mo. 253. The State’s instructions were fair and full, and defendant has no grounds for complaint.

<p>Appeal from Buchanan Criminal Court. — How. A. D. Burnes, Special Judge.</p>

— Ho». Wm. H. Martm, Judge. (1) Under the decisions of this State, a juror who has formed an opinion from having read the evidence taken at the coroner’s inquest and at the preliminary hearing, as printed in a newspaper, is, as a matter of law, disqualified from serving as a juror. State v. Foley, 144 Mo. 610; State v. Culler, 82 Mo. 623; State v. Hulz, 106 Mo. 53. The decisions of other States are in harmony with the law here.

Louis City Circuit Court. — Hon. Robt. M. Foster, Judge. (1) The court erred in permitting the State in rebuttal and over defendant’s objection to contradict with the testimony of Ernest Morgan the testimony of the witness Williams on a matter immaterial to the issue on trial; the answer of said witness on such immaterial matter being conclusive, (a) A witness cannot be cross-examined as to a collateral matter merely for the purpose of contradicting him. 1 Greenleaf, Evid.

— JTo». F. G. Johnston, Judge. (1) Defendant complains that the court did not fully instruct the jury on all the applicable points to the case. But as he made no objections to such failure at the time and failed to except at the time, such alleged error has been waived. And the point has also been waived by failing to assign the same as error in the motion for a new trial. State v. Cantlin, 118 Mo. Ill; State v. Albright, 144 Mo. 638; State v. Waters, 139 Mo. 539. (2).

— Hon. Wm. H. Martin, Judge. (1) (a) Upon reason and authority the court erred in permitting the State to introduce evidence of acts of intercourse subsequent to October, 1903. People v. Clarke, 33 Mich. 112; People v. Flower, 104 Mich. 449; People v. Etter, 81 Mich. 570; People v. Robertson, 88 App. Div.

<p>NO BILL OF EXCEPTIONS. Where there is no bill of exceptions and the record proper is free from error, the judgment will he affirmed.</p>

— Hon. B. J. Casteel, Judge. Where there is no bill of exceptions, and no error appearing in the record proper, the judgment will be affirmed. State v. Wright, 186 Mo. 121; State v. Carnell, 186 Mo. 188.

<p>NO BILL OF EXCEPTIONS. Where there is no hill of exceptions and the record proper is free from error, the judgment will be affirmed.</p>

Louis City Circuit Court. — Eon. Bobt. M. Foster, Judge. There is nothing before this court except the record proper. No hill of exceptions was filed at the same term at which the motion for a new trial was overruled; and no leave was given at that term to file a bill. The failure to thus file a hill of exceptions, or to take leave to .file same, deprives this court of the power to review the proceedings during the trial.

Louis City Circuit Court. — Ho». Jas. E. Withroiv, Judge. The court erred in holding that the indictment stated a cause of action and charged a crime against the law. State v. Edwards, 70 Mo. 480; State v. Manning, 168 Mo. 418. The mere clerical error in the indictment, about which defendant’s counsel complain, did not vitiate, the indictment, nor cause that document to fail to inform the defendant of the charge against him.

— Hon. F. C. Johnston, Judge. (1) The court committed error in permitting the witness Dr. Russell to testify to the statement made to him by the deceased, because the same was not part of the res gestae and was not competent. State v. Hendricks, 172 Mo. 654; State v. Snell, 78 Mo. 240; State v. Feary, 172 Mo. 213.

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

Louis City Circuit Court. — Eon. Moses N. Sale, Judge. (1) There was clear negligence against defendant established, for it is a settled rule of decision in this State that a violation of such an ordinance is negligence.

— Eon. Jno. P. Butler, Judge. (1) Section 9187, Revised Statutes 1899, provides as.follows: “Government lands entered or located on or prior to the first day of June, shall he taxable for that year, and for every year thereafter.” This statute has been on our books for many years and never until this decision, to our knowledge, has the right of a State to tax lands from the date of entry been questioned.

— Hon. J. H. Slover, Judg (1) The simple reversal of a judgment by a court of review is not a final judgment and in law has the effect of remanding the cause to the trial court to be dealt with according to the opinion of the reviewing court.

— Ho». Frank R. Bearing, Judge. (1) A divorce proceeding is a proceeding in personam; in order that a court may acquire jurisdiction in proceedings in rem, there must be an actual seizure and possession of the res, or equivalent proceedings had by the officer of the court to bring the subject-matter before the court.

— So». Jas. E. Hasell, Judge. (1) The court should have given the instructions in the nature of a demurrer to the testimony and directed a verdict at the close of the plaintiff’s case. Kreis v. Railroad, 148 Mo. 321; Roenfeldt v. Railroad, 180 Mo. 554; Payne v. Railroad, 136 Mo. 534; Ross'v. Railroad, 88 S. W. 144.

— Hon. Geo. F. Longan, Judge. (1) The tax deeds under which defendant claims purport to have been executed in pursuance of the judgment recovered by the collector of the city of Sedalia, for state, county and special taxes, and is therefore void upon its face. The only persons authorized to sue for state, county and special taxes are the county collectors of their respective counties. R. S. 1899', sec. 9302.

Ste. Genevieve Circuit Court. — Hon. Robt. A. Anthony, Judge. (1) To constitute a body of land a single tract, for tbe purpose of assessing damages to tbe entire tract on ■account of tbe taking of a right of way thereupon for a railroad company, tbe tract must have been used in common for a single joint purpose before the condemnation proceedings, and if such unity of use has not existed, damages should not be allowed to tbe entire tract.

— Eon. Jas. T. Ne-ville, Judge. Respondent is not an innocent purchaser for value. Young v. Schofield, 132 Mo. 650. The plea of being an innocent purchaser is an affirmative defense, and must be supported by affirmative evidence. The onus lies on the pleader. Holsa v. Holsa, 8 Mo. 303; Sillyman v. King, 36 Iowa 308; Frost v. Beekman, 1 Johns. Ch. 288; Jewett v. Palmer, 7 Johns. Ch. 65; Holdsworth v. Shannon, 1'13 Mo. 525 ; Ins.

<p>1. RAILROAD: Negligence of Lessee: Liability of Lessor: Statute: Constitutional. Where a railroad company leases its road and properties to another company for 1000 years, and that company subleases to another for 99 years, the lessor company is liable for injuries, due to the negligence of the sub-lessee in operating its train, inflicted upon one of its trackmen. That is the statute, and that statute is constitutional.</p> <p>2. NEGLIGENCE: Projectile From Train: Contributory Negligence. Where the evidence shows that the injured section hand, who was struck by a piece of coal hurled from the tender of a passing train, went further from the track than section men usually go to let trains go by, the issue of contributory negligence should be submitted to the jury, and if submitted upon proper instructions, a verdict for plaintiff is the end of that issue.</p> <p>3. -: Instruction: “Pain that He may hereafter Suffer,’’ etc. An instruction which allows plaintiff to recover for bodily pain and mental anguish suffered and endured “and which plaintiff may hereafter suffer and endure,” when immediately followed by the words, “if any, as shown by the evidence, on account of said injuries,” is not reversible error. The use of the auxiliary “may,” standing alone, gives room for unreasonable conjecture, and admits of a double meaning, but restricted as it is here by the context, to hold that it can be made to mean “might possibly,” and to reverse the judgment on that ground, would be to adopt a strained construction and adhere to a refinement altogether too critical for a workable standard. Nevertheless, the use is not commended.</p> <p>4. -: -: Future Earnings: No Proof. Although there may be no evidence directed to the future earnings by name, yet if by reasonable inference the evidence points to a continuation of the plaintiff’s inability to labor, it is no error, on the ground that there was no evidence to support it, to give an instruction directing the jury, in assessing his fjamages, to take into consideration his loss of future earnings.</p> <p>5. -: -: Ambiguous. An instruction given for a prevailing plaintiff, ambiguous and ungrammatical, is not reversible error, if it announces a proposition, in so far as it announces any, that is more favorable to defendant than the strict law, and when read in connection with defendant’s instructions given puts the issue to the jury fairly enough.</p> <p>6. -: -: Misconstrued: Defective Construction: No Proof. Plaintiff was injured by a piece of coal hurled from the tender of a passing train, and throughout the trial the issue was whether the coal was negligently piled up over the rim of the tender, and there was no proof that the tender was defectively constructed; nevertheless, the instruction given for plaintiff told the jury that if they find and believe from the evidence that “such places, positions, receptacles were unsafe, insecure, defective and dangerous,” etc., they should find for plaintiff. Held, that the instruction ought not to be considered as putting to the jury the defective construction or condition of the tender itself, but relates to the coal lying above the rim of the tender.</p> <p>7. EVIDENCE: Insufficient Objection: Immaterial and Remote. An objection at the trial that the inquiry was about “immaterial” matters cannot on appeal be enlarged into an objection that the testimony was too remote.</p> <p>8. -: Immaterial. Where the offered evidence is worth anything for any purpose, an objection that it is immaterial should be overruled.</p> <p>9. -: Remote: Condition of Railroad Track. Where plaintiff’s injuries were caused by a piece of coal hurled from a passing train, and he charges that it was so hurled because the tender was overloaded and the track defective, testimony showing the condition of the track six months before the injury is not too remote, especially if the condition is shown to exist down to the time of the injury. He should show its condition for a sufficient length of time to give reasonable notice, and, besides, bad steel rails do not get better by further use for six months. .</p> <p>10. VERDICT: Excessive: $5,000: Permanent Injuries. A piece of coal was hurled from a train going from 45 to 60 miles an hour; it struck the ground, broke into pieces, and a piece as large as a hen’s egg, or larger, struck the plaintiff’s knee, knocking his left leg (on which his weight rested) back eight inches and knocked him down and rendered him helpless. He received prompt medical attention, but has not since been able to work or to walk without artificial aid. Inflammation, swelling, pain and sleeplessness have since attended him. He has spent much money in trying to get relief and medical testimony was that tuberculosis of the knee had set in. He was a section hand, 32 years old, and had previously earned $1.10 per day. Held, that a verdict of $5,000 was little enough.</p> <p>11. NEGLIGENCE: Projectiles from Passing Train: Assumption of Risk. It cannot be said, as a matter of law, that the danger of being struck and injured by flying coal piled eight inches to a foot high above the rim of the tender of a passing engine going at a rapid rate over bad rails, laid unevenly on indifferent ties, is an ordinary risk to a section hand standing fifteen feet from the track.</p> <p>12. -: -: -: High Speed in Country. It cannot he held, as a matter of law, that a passenger train (because in a country district) can run at a rate of practically a mile a minute over a track in bad condition, with the tender piled so high with coal that it will not stay in position, without the company incurring liability for injury to its trackmen from flying coal. It will not be held, as a matter of law, that such a train so run is not negligence when a section hand standing fifteen feet from the track is injured by coal hurled from the tender.</p> <p>13. -: -: -: Accident: Anticipated. Nor will it be held, as a matter of law, under such circumstances, that the section hand’s injuries arose from a cause which no man of ordinary prudence could reasonably anticipate and hence- that they come within the domain of inevitable accident.</p> <p>14. -: Definition. Negligence is the absence of due care, and due care is a care adjusting itself to the circumstances of the , case. Its substance, is the failure to act with due foresight.</p> <p>15. -: Coal in Tender: Projectile. Ordinary care requires that it be anticipated that the coal piled up eight inches or more above the rim of the tender of a railroad train, running from 45 to 60 miles an hour in the country, over uneven rails, will be hurled forth, and that the consequent danger from such projectiles to trackmen rightfully along the track be reasonably guarded against.</p> <p>16. -: -: -: Assumption of Risk. The servant does not assume the risk arising from the supervening and active negligence of his master. A railway trackman does not assume the risk of being struck by a piece of coal hurled from a tender upon which the coal is piled eight inches or more above its rim, when the train is run at a very rapid speed over an uneven track.</p> <p>17. -: -: -: Unusual Accident. The fact that the injury is unusual does not defeat plaintiff’s recovery. A defendant charged with negligence may be held liable for any injury inflicted upon another which, after the injury is complete, appears to have been a natural and probable consequence of his act or omission.</p>

— Wow. Frank B. Dearing, Judge. The abstract of the record, prepared and filed by appellants is insufficient, and there is nothing for this court to review except the record proper. Everett v. Butler, 91 S. W. 890; St. Charles v.'Deemar, 174 Mo. 125; Hill v. Combs, 92 Mo. App. 242; Walser v. Wear, 128 Mo. 652; Lawson v. Mills, 150 Mo. 428; Johnson v. Carrington, 120 Mo. 315; Kirk v. Kane, 97 Mo. App. 556; Whitehead v. Railroad, 176 Mo. 475; Parry v. Spice Co., 98 Mo.

Louis County Circuit Court. — Hon. Jno. W. McElhinney, Judge. (1) To specifically enforce a verbal contract to convey land or to make a will devising land or bequeathing personalty, tbe contract must be established by clear, definite, unequivocal proof leaving no' room for a reasonable doubt. If. the terms are uncertain or ambiguous, or if not made out by satisfactory proof leaving no room for a reasonable doubt, specific performance will be refused.

Francois Circuit Court.— Hon. Robt. A. Anthony, Judge. (1) The court erred in, giving respondents’ instruction 3, for the reason that it is misleading in that it attempts to blend, with equal force, the effect of an emaciated body and a deranged mind. Old age and physical infirmities, or illness, do not constitute testamentary incapacity.

— Hon. L. B. Wood-side, Judge-. (1) Under the evidence introduced the judgment of the trial court should have been for the defendant because: (a) The evidence shows that the respondent,Scanlan, had notice of the unrecorded deed from Alexander Weems and wife to- the appellant, Gulick, the deed of trust having been recorded and called to his attention in the abstract prior to his accepting of the deed of trust in which he claimed title, (b) He also had actual notice from…

— Mon. J. D. Sloven, Judge. This court has no jurisdiction. The amount in dispute is insufficient. The amount in dispute is not determined by the prayer of the petition, but by the record.

Transferred froin Kansas City Court of Appeals. The record in this case discloses a voluntary non-suit from which no appeal lies. McClure v. Campbell, 148 Mo. Ill; Kelly-Goodfellow Shoe Co. v. Prickett, 84 Mo. App. 100; State v. Ragsdale, 59 Mo. App. 590; Shannon v. Railroad, 54 Mo. App. 223; Waller v. Railroad, 83 Mo. 608; Dosier v. Jerman, 30 Mo. 216.

<p>1. PUBLIC PRINTING: Insurance Department: Not Controlled by Printing Act. The Insurance Department is a separate and distinct department of the State government, and the disbursements of the funds belonging to that department appropriated to be used in paying its expenses, including its expenses for printing, are under the exclusive control of the Superintendent of Insurance, and accounts for printing for that department are not required to be approved by the Commissioners of Printing. Section 9028, R. S. 1899, which says that “all printing for the executive departments shall be ordered through the Commissioners of Printing,” and section 90S 1, which says that “all accounts” for printing done under the provisions of the printing act “shall be carefully examined -by the Commissioners of Printing, and when the account is corrected and adjusted and approved by said commissioners, the State Auditor shall draw a warrant upon the Treasury for the amount thereof, payable out of any moneys appropriated for that purpose,” do not apply to the printing for the Insurance Department. But chapter 119, R. S. 1899, creating the Insurance Department, conferred upon the superintendent the right to contract for printing connected . with his office, and to pay for the same out of the department funds.</p> <p>2. -: -: -: General Appropriations Act of 1905. Nor does the fact that section 31 of the General Appropriations Act of 1905, appropriating money for printing for the Insurance Department, and section 58 of the same act, providing that “all printing provided for in this act shall be done by the authority and under the direction of the State Printing Commission,” mean that the printing for the Insurance Department shall be done under the direction of the Printing Commission under the contracts entered into by the commissioners on behalf of the State for the public printing, for said section 31 also provides that “the receipts of the Insurance Department shall be paid out only on the warrant of the State Auditor, which shall be drawn only on the requisition of the Superintendent of Insurance, duly made out and approved by him,” thus bringing that act, as to the Insurance Department, into harmony with chapter 119, by section 7841 of which it is provided that the necessary expenses of the department are to be paid “on warrants drawn upon the Insurance Department fund by the State Auditor on vouchers approved by the superintendent.”</p>

Buchanan Circuit Court. — Row. R. M. Barney, Judge. (1) A motion for judgment on the pleadings, like a demurrer, admits all facts that are well pleaded by the opposite party. Sternberg v. Levy, 159 Mo. 629. (2) There is no conclusive presumption that every issue which might have been tried under the pleadings in a given case actually were tried, and have therefore become res adjudicata; but only the matters that were actually considered by court are settled by the judgment.

Mandamus. Section 5 of the act of 1868 provides that in all cases where railroads are built under thé provisions •contained in said act, the proceeds of all state taxes levied upon such railroad shall be paid into the treasury of the county where collected and apportioned to the payment of the bonds issued by such county for the construction of such railroad.

Habeas Corpus. (1) Petitioner contends that after an appeal was granted him, amount of appeal bond by the court fixed, the appeal bond duly filed and approved as the court directed, this acted as a stay of execution pending the appeal, and that the sheriff had no authority for imprisoning him until his appeal was finally determined. Secs. 2702, 2703, 2704, E. S. 1899; In re Bauer, 112 Mo. 231.

— Hon. A. D. Burnes, Special Judge. The indictment is defective and insufficient to support the judgment, and the motion in arrest should have been sustained. State v. Fay, 65 Mo. 490; State v. Chinn, 142 Mo. 507; Polk v. State, 51 S. W. 909; Bynum v. State, 17 Oh. St. 143; Carberry v. State, 11 Oh. St. 414; Joiner v. State, 80 S. W. 531; Mayer v. State, 85 S. W. 802; Thulemeyer v. State, 43 S. W. 83.

— Row. Henry C. . Riley, Judge. (1) The court erred in refusing the challenge for cause of William Kinley. If Kinley had an opinion, what difference can it make from whence that opinion was derived? State v. Bauerle, 145 Mo. 15; U. S-. v. McHenry, 6 Blatch. 503; TJ. S.v. Hanway, 2 Wall. 143; U. S. v. Woods, 4 Cranch C. C. 484; Coughlin v. People, 19 L. R. A. 57; Rothschild v. State, 7 Tex. App. 519; People v., Reyes, 5 Cal. 347; Ins.

Appeal fom Cole Circuit Court. — Now. Wm. PL. Martin, Judge. (1) The court erred in overruling defendant’s demurrer to the evidence. There is na evidence in the case that defendant fired the shot that killed his wife. There is no testimony from which such an inference may he reasonably drawn.

— Hon. F. G. Johnston, Judge. (1) The court did not err in overruling defendant’s motion to strike out all of the evidence adduced by the State, regarding a certain revolver used and introduced in evidence.

— Hon. Nat. M. Shelton, Judge. (1) The judge who was disqualified to sit in this ease, on being disqualified, set the ease for immediate hearing, and the judge wlm tried this ease immediately took the bench and without regard for the rights of defendant, called the case for trial, which was an abuse of judicial power. Such act was against reason, right and justice. (2) The court erred and abused its discretion in refusing defendant’s application for a continuance.

<p>X. WILL CONTEST: Question for Jury. A suit to set aside a will, bottomed on tbe incapacity of the maker, is a suit at law, in which the contestants are entitled to a jury if there is any substantial evidence tending to prove that the maker did not have sufficient mental capacity to execute a will.</p> <p>2. -: Character of Attesting Witnesses. In all cases the attesting witnesses to a will are, by law, placed around the testator as a guard to protect him from fraud, imposition and undue influence, and to judge of his capacity. In the case of a very aged person, they should be those who have for considerable time been acquainted with him.</p> <p>3. -: Proof of Incapacity. Testimony of the mental incapacity of the testator should come, as far as possible, from those persons who have had extensive opportunity , to observe his conduct, habits and mental peculiarities extending over a considerable period of time, and reaching back to a period anterior to the malady.</p> <p>4. -: Testamentary Capacity: Meaning. Testamentary capacity means that the testator, at the time of the execution of his will, should have sufficient understanding and intelligence to transact his ordinary business affairs and to understand the nature and character of his property and the persons to whom he is giving it.</p> <p>5. -:• Incapacity:. Evidence. Extreme debility from old age, a radical change in the mental employments of the testatrix following a stroke of paralysis received before the will was made, softening of the brain thereafter, appropriation of things which did not belong to her, mental delusions of the presence of visitors in her room and of conversations with her deceased husband, repudiation of ordinary contracts with her agents, inability to talk coherently and to confine her conversation to the business matter in hand, coupled with a disregard of the rules of health and cleanliness, and other things indicating senile dementia, are evidence of testamentary incapacity; and when shown by the testimony of her daughter with whom she lived, her grand-children or others long associated with and close about her, are sufficient to take the case to the jury.</p> <p>f>. -: -: Change in Habits; Insanity. A marked change in the habits and thoughts of testatrix is evidence of mental unsoundness. Insanity is indicated by proof of acts, declarations and conduct inconsistent with the character and previous habits of the testate.</p> <p>7. -: -: -: No External Cause. Evidence for the contestant tending to show that a generous, dainty, refined and intelligent woman of good business capacity, had, in the last ten years of her life, towards the close of which she made a will, become utterly untidy in her habits and person, penurious, and had lost her memory and business capacity, and was in many respects strikingly different from herself of previous years, the change not being attributable to anything in her external life and surroundings, is evidence bearing on her’ capacity to make a will.</p> <p>2S. -: Insane Delusion: Imaginary Property. Whenever a testator conceives something extravagant to exist, which has in fact no existence whatever, and he is incapable of being reasoned out of this false belief, it constitutes insanity; and if this delusion be in regard to his property he is incapable of making a will.</p> <p>9. -: -: -: Prior Gift to Child. The will recited that testatrix had previously given to a daughter twenty thousand dollars, and for that reason alone she gave her nothing more than the net income for life of the trust estate; and the evidence was that she had for years been under the delusion that she had given the daughter that sum, and could not be reasoned out of that belief; whereas, in fact she had never given her daughter anything, but for the greater part of thirty years had lived on her bounty. 'Held, that this fact alone, if established, constituted an insane delusion, and was sufficient to authorize the jury to set the will aside.</p> <p>10. -: Evidence: Account Book of Physician: To What Extent Admissible. Entries in the account book of a deceased physician who treated testatrix prior to the making of the will, are admissible in evidence when ottered by contestant, not only for the purpose of showing that at certain dates he rendered medical services to testatrix, but also for the purpose of showing the disease for which he treated her — in this case, softening of the brain and paralysis.</p>

— Eon. Jno. W. Wofford, Judge. (1) The information is not sufficient to charge murder in the first degree by poisoning because: (a) It •does not change that defendant intended or contrived to kill deceased, (b) It does not charge that deceased did not take the poison voluntarily and with suicidal intent, (c) It does not negative the fact that the poison was administered to deceased in aid of self destruction, (d) It does not charge that deceased' did not take the poison…

— Hon. Wm. A. Davidson, Judge. (1) The court erred in refusing to give a demurrer to the evidence asked by defendant at the close of plaintiff’s case1, and also in refusing to give it at the close of the whole case.

Francois Circuit Court. — Row. Bobt. A. Anthony, Judge. (1) Most o-f the evidence was admitted without any objections from defendant. In three instances defendant’s counsel objected, but assigned no reason therefor, which is not sufficient. State v. Young, 153 Mo. 449; State v. Westlake', 159 Mo. 679. While the State’s attorney was cross-examining the defendant, a question was asked and answered by the defendant without any objection being made.