Volume 206 — Missouri Reports

Quo Warranto. (1) The act, with emergency clause, was approved. April 11, 1879. It will he observed that the act does not in terms say that a jury commissioner shall he- appointed in 1879 and every fourth year thereafter, but it does require the appointment of the first commissioner within thirty days from April 11, 1879 (and Ashley Cabell was actually appointed on May 6, 1879) and fixes his term at four years from and after the 1st day of May, 1879.

Quo Warranto. STATEMENT BY THE REPORTER. The Attorney-G-eneral ex officio filed his informations in this court against the defendants, in two separate cases, charging them all as corporations doing business in this State, and some of them as organized under the laws of Missouri, with having unlawfully usurped and with having unlawfully exercised certain particular franchises, and setting out the facts which, it is alleged, were in violation of the Constitution and laws of…

— Row. George F. Long an, Judge. (1) It is a condition precedent in the section pro-' viding for a child’s part that the widow must have a child or children living by such husband at the time of his death before she can take a child’s part in lieu of dower. R. S. 1899‘, sec. 2944. The right of a widow to elect to take a child’s part in lieu of dower is a statutory privilege conferring new and important benefits and outside of statute has no existence.

<p>1. MANDAMUS: Office of Writ. The extraordinary writ of mandamus has been properly described as “the right arm of the law.” Its principal office is not to inquire and investigate, hut to command and execute. But while that is true, it, nevertheless, is designed to meet emergencies and prevent a failure of justice, and should he reserved for extraordinary occasions, and litigants are required to use all available means to obtain the enforcement of their rights before applying to the courts for the assistance of the writ.</p> <p>2. -: --: Discretion. Whether mandamus be considered a writ of right or an ordinary action at law, courts have a Sound judicial discretion as to whether or not they will issue ■ or refuse the writ, even where a prima-facie right thereto is shown, and though there be no other remedy. The right thereto must be clearly established, and it is never issued in doubtful cases. *</p> <p>3. -: -: -: Railroad Bridges: To Be Opened to General Road. Where the evidence fails to show, as- it does in this case, that the failure of a bridge company, with a charter right to operate both a railroad and a toll bridge for general road travel, to open the bridge, which has been used as a railroad bridge exclusively for more than a quarter of a century, to the traveling public as a general road bridge, would be such an injury to the general public as would require the court, in the exercise of a sound judicial discretion, to order the bridge to be so constructed that it might be used also as a wagon and road bridge and to be opened and used for that purpose, as well as a railroad bridge, the peremptory writ of mandamus will not go.</p> <p>4. CORPORATION: Powers Granted By Charter: Permissive, or Obligatory: Good Faith: Mandamus. Whether or not a bridge company (and its lessee, a railroad company), which had received a charter from the State authorizing it to construct a bridge across the Missouri river for railroad trains and for wagons and general road travel, was under obligation to construct and operate a bridge for both purposes, or whether or not those charter privileges were simply permissive, is a question not decided in this case, because a decision of that question is not necessary to its proper disposition; but the fact that the company in good faith considered as simply permissive the charter right to operate a wagon and general road bridge is considered in determining the right of the Attorney-General to a peremptory writ of mandamus to compel the company to open up the bridge to general road travel.</p> <p>5. -: -: Acquiescence of State: Laches: Mandamus: Railroad and Wagon Bridge. Estoppel and laches are- not to be applied to the State. But acquiescence for nearly thirty years by the State in the use a bridge company (and its lessee, a railroad company) made of a charter, which granted it the right to construct a railroad and wagon bridge, and which used it during all that time without objection as a railroad bridge exclusively, and reconstructed it at great cost as a railroad bridge after fifteen years or more of said use, will be taken into consideration by the court when it is asked to issue its extraordinary writ of mandamus to compel the company to open the bridge for ordinary road travel.</p> <p>6. RAILROAD AND WAGON BRIDGE: Danger: Mandamus. Where the evidence shows that the bridge across the Missouri river could be used as both a railroad and wagon bridge, only with great danger to the traveling public, and that such use would result in great delay and interruption in the movement of trains and probably the loss of life and property, the court Will hesitate to compel the bridge to be reconstructed and prepared for both said uses.</p>

<p>1. MOTION FOR NEW TRIAL: Dormant For Fifteen Years: Abandonment. The decision of this court in St. Francis Mill Co. v. Sugg, 142 Mo. 364, holding that permitting a motion for new trial to lie dormant for fifteen years was not an abandonment of the motion, is questioned in this case; but that decision is the law in a subsequent appeal in the same case, and for that reason alone that holding is recognized in the disposition of the issues involved on this appeal.</p> <p>2. FRAUDULENT CONVEYANCES: Presumption of Payment: Lapse of Time. There is no presumption, owing to great lapse of time, that judgments rendered in 1875, upon which unsuc-' cessful executions were timely issued, were paid at the time this case, to have certain conveyances made by the judgment debtor to his brother set aside as being fraudulent as to his creditor, was tried in 1903, the suit having been instituted and first tried in 1880, and, a motion for new trial having been filed and allowed to lie dormant for fifteen years, the cause was, after two appeals on other points, tried again. When the case went back for a retrial after that motion had been sustained, it was to be tried on the condition of things as they existed at the Institution of the suit in 1880. Besides, the evidence shows that the judgments were not paid.</p> <p>8. EVIDENCE: Lapse of Time. There are cases in the proper disposition of which the rules of evidence must be relaxed. Owing to the great lapse of time from the institution of a suit to its final retrial twenty-three years afterwards, the principal (participants being dead, and allowance being made for failing memory, the .court, in determining whether certain conveyances grew out of an attempt to defraud creditors, will indulge its own experiences and draw all reasonable inferences from what evidence is before it.</p> <p>4. FRAUD: Characteristics. Fraud is never proclaimed from the house top. It is fathered by a desire to do wrong, and has its birth in darkness. Often it is clothed with the adornments of honesty, beneath which, nevertheless, will be found unconscious blazings which mark the pathway the parties followed.</p> <p>5. FRAUDULENT CONVEYANCE: Evidence. The evidence in this case is reviewed at length and the conclusion of fact reached therefrom is that the deceased grantor in deeds conveying twenty thousand acres of overflow land to his brother was at the time hopelessly insolvent and that his purpose in conveying the lands was to delay his creditors and stay off 'executions on judgments about to be rendered against him until -he could pay them by forcing his creditors to take a part of them at exorbitant prices in settlement of their claims, and to hold the balance for himself, and that his brother, the grantee, shared in the purpose and intention of the conveyances, and that they were without consideration, and these being the facts the conclusion of law necessarily follows that they were fraudulent as to such creditors.</p> <p>6. — : Estoppel: Ultimate Justice. Nevertheless, there being evidence in the case that, after the judgment rendered in 1880 setting aside the deeds as fraudulent and after a motion for a new trial was filed, both sides agreed that the judgments might stand if two thousand acres embraced in the deeds were exempt from execution, and that some of those lands have been since sold, the deeds, on a retrial of the same cause in 1903, will not be set aside as to those lands.</p>

Louis City Circuit Court. — Hon* Daniel G. Taylor, Judge. (1) One claiming exemption from taxation sustains the burden of proving specifically the authority by which the exemption is made.

— Hon. George F. Longam, Judge. (1) The Act of March 2,1895 (Laws 1895, p. 169) now section 2938, Revised Statutes 1899, is void, because the title does not express the subject of the act. Const., art. 4, see. 28.

<p>X HUSBAND: Curtesy: Share of Personal Estate. The husband of a wife who dies intestate is entitled to the articles and personal property called for by section 111, Revised Statutes 1899, whether or not he has curtesy in her estate. That section was intended to confer on the husband the rights corresponding to those conferred on the wife by sections 105, 106, 107, and 109, whether a child was born to him and the deceased wife or not.</p> <p>2. STATUTE: Meaningless Words: Main Purpose: Curtesy. Although it is a rule of construction that all words used in a statute must be given a meaning and a purpose if that can be reasonably done, yet when the main purpose of a statute appears it must not be defeated in order to give effect to words that seem useless or out of place. And guided by this rule it will not be held that the words “in addition to curtesy” used in section 111, Revised Statutes 1899, were meant to defeat the right of a husband, who had no curtesy, to certain articles and personal property belonging to his deceased wife.</p>

— Hon. W. IP» Graves, Judge. (1) In cases where, by the common law or statute law of England, any person might become seized in fee tail of any lands, by virtue of any devise, gift, grant or other conveyance, or by any other reasons whatever, such person, instead of being seized thereof in fee tail, shall be deemed and adjudged to be, and shall become, seized thereof for his natural life only, and the remainder shall pass in fee simple absolute to the person to whom the…

— Hon. J. W. Alexander, Judge. (1) It is a well-settled rule that the principle» of interpretation, and the rules of construction, are the same, whether' the instrument he a constitution, a statute, a deed, a grant, a covenant or a contract. Story on the Const. (5 Ed.), secs. 451, 401; Potter’s Dwarris, pp. 47, 175, 182; End. Interp. Stats., secs. 1,. 2, 8, 258, 295.

<p>1. WILL CONTEST: Evidence in Rebuttal. Plaintiffs (proponents), in a will contest, should not be permitted to introduce matters in chief after defendants have rested their case. Their evidence in rebuttal should be confined to the new matters, brought out by the defendants’ evidence. But admitting the evidence out of order may not be prejudicial. [Per Woodson,, J.]</p> <p>2. -: Hypothetical Question: Left to Decide Fact. The expert should not be required to decide for himself which of' two witnesses testified to the truth regarding the testatrix’s loss of memory, and, hence, these words found in the hypothetical question, namely: “Although it is charged by one witness for the defendant that at an interview in the fall of 1893,. or early in 1894, she repeated a short story twice or perhaps three times during the course of a half hour when they were conversing on general topics/ which statement is denied by another unimpeached witness of high official standing in this city,” were improper. The assumed facts should be stated as facts, so that the jury may consider or reject the opinion of the expert, accordingly as they find the assumed facts to be true or false.</p> <p>3. NEW TRIAL: Newly-Discovered Evidence. The newly-disCovered evidence should be set out in the motion for new trial, or it will not avail. The movent cannot state in the motion that he has discovered material evidence which would produce a different result on a retrial, and depend on affidavits to be subsequently filed to reveal what that- evidence is.</p> <p>4. -: -; Diligence. Where the affidavit states that. affiant testified in the probate court, when the will was there-presented for probate, the same things set forth in the affidavit filed in support of a motion for a new trial of the case-subsequently brought in the circuit court, asking to have the-same will admitted to probate, the affidavit itself shows a lack, of proper diligence to obtain affiant’s testimony at the trial.</p>

<p>DEED OBTAINED THROUGH FRAUD: Undue Influence: Incapacity: Evidence. Where an infirm and ignorant old man, who had' recently lost his wife, induced by his loneliness and the proffered kindness of defendant, went to defendant’s house to live, was there kept supplied with whiskey, and while sick conveyed land at the time worth three thousand six hundred dollars to defendant upon condition that defendant would clothe, support and maintain him during the remainder of his life, and there is evidence that he knew nothing about having made the deed until so informed by others, and that when it was made a lawyer and a notary appeared on the scene and they were liberally paid for their services and the deed was signed by his mark in their and defendant’s presence alone, his hand being at the time held by the lawyer, and the evidence is contradictory of whether the lawyer and notary were sent for by defendant or brought by defendant at plaintiff's reguest, and that after the deed was made defendant by conversations with interested friends of plaintiff tried to conceal from them that a deed had been made, the finding of the chancellor that plaintiff at the time was mentally incapacitated from understanding the nature of said deed and that it was procured by the exercise of undue influence over him by defendant while he was in said condition of mind, will not be disturbed.</p>

— Eon. E. W.Jolm.son, Judge. : (1) Upon the expiration of the term of Judge Johnson, November 8, 1904, he no longer carried the proceeding had in this case at the previous October term in his breast and the trial should have been de novo at the December term. Clanton v. Ryan, 14 Colo. 419; Ellis v. Rector, 32 Mich. 379; State ex rel. v. Perkins, 139 Mo. 106; Connely v. Ashworth, 98 Cal. 205; Gordon v. Trainor, 92 N. Y. Supp. 321; Babcock v. ¡Wolf, 70 Iowa 576.

— Hon. Nat. M. Shelton, Judge. (1) It is apparent on the record, and undisputed, that Geo. W. Davis, who assumed to bring this action for the infant respondent, was not the curator of his estate, had never qualified or given bond as such or in any other capacity, and the court by its order of record so finds. Hence, Davis had no right to represent the infant or bring suit for him or to in any way meddle with the infant’s property rights.

— Hon. Charles D. Stewart, Judge. (1) The judgment is not responsive to the issues made by the pleadings in the cause. The title to be adjudicated is the title which the plaintiffs assert and the defendant denies, which in this case is thirty-four forty-eighths of the land described in the petition.

<p>1. DIVORCED WIFE: Suit for Money Appropriated by Husband: Settlement in Divorce Suit. An agreement by a wife, in her suit for divorce, to accept, by way of alimony, in full settlement of all claims against her husband, one-half of the value of his property, estimated at a definite sum, and an acceptance of that sum and an acknowledgment of payment of judgment therefor, are a complete bar to her suit against him after divorce granted to recover money which she alleges was; • hers and was collected by him and appropriated to his own use' while they were husband and wife — that money or the property in which it was invested being considered in estimating, the aggregate value of his property. ..</p> <p>2. -: -: -: Estoppel. "Whether or not a wo-. man is estopped to dispute an agreement to accept a definite sum of money, by way of alimony as a settlement, of all claims, against her husband’s estate, entered into before the divorce 'decree was rendered, she is, nevertheless, estopped by her acceptance,, after the decree was rendered, of the sum agreed' upon by way of settlement. ></p>

— flow. George F. Longan, Judge. (1) The taxbills sued on are void because the ordinance and all the other proceedings in this case provide that the street in question shall be brought to the established grade and paved, and because the city council did not declare by ordinance or otherwise that in their judgment or opinion the general revenue fund of the city was not in a condition to warrant an expenditure therefrom for bringing the street to the establisted grade.

<p>Appeal from Pettis Circuit Court. — No». George F*. Long an, Judge.</p>

<p>Appeal from Pettis Circuit Court. — Hon. Geo. F. Longcm, Judge.</p>

— Hon. Nat. M. Shelton, Judge. (1) Where a deed is delivered with the name of the grantee blank and parol authority to the person to whom it is delivered to insert the name of any grantee he may see fit, and he inserts a name therein, the title passes. Thummel v. Holden, 149 Mo. 677. Changing the amount of consideration in a deed is not a material alteration. Jones on Real Property, sec. 1344.

— Hon. A. H. Waller, Judge. (1) The direction to sell contained in the will being absolute, and the time for the sale, though in the future, being fixed (viz: the death or re-marriage of the widow), the land was converted into personalty on the day of the testator’s death. Compton v. McMahan, 19 Mo. App. 498; Craig v. Leslie, 3 Wheat (U. S.) 577; Peter v. Beverly, 10 Pet. (U. S.) 532; Rinehart v. Harrison, 1 Bald.

— 1Son. Alex. H. Waller, Judge. (1) A master is not required to furnish, his servant absolutely safe appliances. He is not an insurer of the sufficiency, nor of the absolute safety of the appliances furnished by him. Chrismer v. Bell Tel: Co., 194 Mo. 189; Bowen v. Railroad, 95 Mo. 268;- Gutridge v. Railroad, 105 Mo. 520 ,* Blanton v. Dold, 109 Mo. 64; Brown v. Herschy L. & L. Co., 65 Mo. App. 162; Marshal v. K. C. Hay Press Co., 69 M01.

Louis City Circuit Court. — Eon. Robert M. Foster, Judge. (1) An examination of the testimony will show that substantially all of the evidence was brought by, plaintiff and made in favor of his case, which, furthermore, was strengthened by nearly all of the testimony brought by defendant and impaired by none. (2) The trial court gave nineteen instructions to the jury covering ten pages of the closely printed matter of plaintiff’s very .largely paged abstract.

— Hon. Jos. D. Perkins, Judge. (1) The court erred in admitting any evidence under the petition in this cause, (a) The Fellow-Servant Law of 1897 did not apply to' street railroads. Sams v. Railroad, 174 Mo. 53; Funk v. Railroad, 61 Minn. 436; Lundquist v. Railroad, 65 Minn. 387; Riley v. Galveston, 13 Tex. Civ. App. 247. (b) Havens (car dispatcher or starter) and plaintiff were fellow-servants, and defendant is not liable for negligence (if any) of Havens.

— Now. A. D. Burnes, Special Judge. Section 2689', Revised Statutes 1899, which refers to criminal cases, specifically says that a motion for a new trial must he filed before judgment and within four days after the return of the verdict or the finding of the court.

— Hon. ■ W. B. Teasdale, Judge. (1) Plaintiff’s instruction number one is fatally defective, (a) It is fatally defective because it instructed a verdict against tbe defendant, who is not charged with negligence, but whose liability is sought to be established solely through the allegation and proof that it is the owner of a certain railroad right of way, which it had leased to another railroad company, whose negligence is alleged to have caused the injury, without requiring…

Mandamus. (1) It will be admitted that relator has the right to have his necessary expenses paid while holding court in Joplin, unless that right has been taken away by the Act of March 10, 1905. And the act expressly provides that it shall not apply to circuits consisting of only one county.

Mandamus. Even if the respondents erred in reference to the weight of evidence, that error is one that cannot be corrected in a proceeding of this kind. If their action was the result of bias, prejudice or ill-will; or if they acted harshly, oppressively or without any evidence to support them, it . is frankly conceded that their action might be reviewed and reversed.

- — How. Geo. W. WanamaJcer, Judge. (1) Whenever a person is put upon trial before a court of competent jurisdiction, upon a sufficient information, and a jury has been impaneled and sworn, the person is then in jeopardy. Ex parte Snyder, 29 Mo. App. 256 ; State v. Snyder, 98 Mo. 555; State ex rel. v. Williams, 117 Mo. App. 564; State v. Wiseback, 139 Mo. 214; Cooley on Const. Lim. (7 Ed.), 467.

— How. James D. Barnett, Judge. Neither the principal nor the sureties signed the bond, as is shown by the evidence, in the presence of the justice of the peace. Therefore, the bond was void, not complying with the statute. State v. Pratt, 148 Mo. 402; sec. 4128, R. S. 1890; Com. v. Hickey, 33 Atl. 188; State v. Crosswhite, 195 Mo. 1; State v. Eyermann, 172 Mo. 294; State v. Woodward, 159 Mo. 680.

— New. Howard Gray, Special Judge. (1) The statute never contemplated prohibiting the sale of lemons, apples, oranges, bread, pies, chili and things of that sort any more than it would prevent a hotel or restaurant man from serving ice cream and eatables on the table.

— No». J. G. Sheppard, Judge. (1) Emmons was a witness for the State, and, as-such, it was competent to cross-examine him upon the whole case — even as to threats made by the prosecuting-witness, Rutherford. Laws 1905', p. 307, sec. 4655a;, State v. Soper, 148 Mo. 235; State v. Hudspeth, 159 Mo. 200.

— Eon. F. C. Johnston, Judge. (1) The court erred in admitting evidence that tended to show that defendant was conducting a poker game-. Laws 1901, p. 130. “Where a statute enumerates particular classes of persons or things, followed by general words, the general words will be limited in their meaning and restricted in their operations to objects of like kind with those specified.” State v. Schuchmann, 133 Mo. Ill; State v. South, 136 Mo. 673.

Louis City Circuit Court. — No». Matt. O. Reynolds, Judge. (1) The information was evidently intended to be brought under the Act of 1903, section 2120], and if this is the section which it was intended should be pleaded, the information does not follow the statute, and the instruction fails to charge that the jury must find that the alleged registration was done feloniously, as well as willfully, knowingly, falsely and fraudulently.

— How. William N. Evans, Judge. (1) The information, which is accompanied by the affidavit of the prosecuting attorney, is sufficient in form and substance. Kelley’s Crim. Law, sec. 474 Although the information charged murder in the first degree, yet the State had a right, with the permission of the court, to dismiss the greater charg*e and to prosecute defendant for a lesser offense. State v. Feeley, 194 Mo. 323; State v. Mosley, 115- Mo. 644.

— How. R. 8. Ryors, Judge. (1) The motion to quash the indictment should have been sustained because the indictment was not certified as a true bill by tbe foreman of tbe grand jury. State v. Bruce, 77 Mo. 195; State v. Burgess, 24 Mo. 381; State v. Brown, 181 Mo. Mo. 229; State v. Runze, 105 Mo. App. 327; State v. Mertens, 14 Mo. 95;. R. S. 1899, sec. 2510.

— How. John T. Moore, Judge. ■ The demurrer to the original information and the motion to quash the amended information should have been sustained, as both informations show on their face that the property charged to have been obtained is not the character of property that can be the subject of the offense charged under the statute.

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

Louis -City Circuit Court.— Eon. Daniel G. Taylor, Judge. The State’s evidence did not warrant submission of the case to the jury, and the instruction to that effect asked by defendant should have been given. Before’ a transaction can be successfully impeached on account of alleged false and fraudulent representations, the well-established doctrine, even in civil actions, is that five elements must concur: 1.

<p>Error to Dent Circuit Court,- — How. L. B. Wood-side, Judge.</p> <p>(1) The information is insufficient to support the verdict and judgment. The building charged to have been broken into and entered is alleged, inferentially, to have been the property of the St. Louis and San Francisco Railway Company, but it is not alleged in the information that that railway company was a corporation or that it was a co-partnership. This the defendants were entitled to know by the record, and the allegation that it was one or the other is indispensably necessary to the sufficiency of the information. If a corporation, thé fact of incorporation must be set out'; if a co-partnership, names of the partners must be stated. The same defect is apparent in the charge of larceny, the Wells Fargo Express Company, alleged as the owner of the property charged to have been stolen, not being described as a corporation or otherwise. State v. Jones, 168 Mo. 402; State v. Homed, 178 Mo. 59; State v. James, 194 Mo. 268'. (2) Writ of error lies to correct errors apparent on the record; any defect that may be reached by timely motion in arrest of judgment may be reviewed and corrected on writ of error. State v. McGee, 8 Mo. 495; State v. Vaughn, 26 Mo. 29; State v. Meyers, 99 Mo. 107; State v. Levy, 119 Mo. 434. And this notwithstanding the plea of guilty to the charge made or attempted to be made in the court below. State v. Levy, 119 Mo. 434; State v. Rosenblatt, 185 Mo. 114. Nor is it a necessary prerequisite that motion in, arrest should have been made prior to appeal or writ of error. State v. Vaughn, 26 Mo. 29. (3) The plaintiffs in error, defendants below, were jointly charged in the same information with burglary and larceny, but upon their plea of guilty the court failed to assess the punishment of each defendant separately for each offense. The information being insufficient to support either charge, the verdict and judgment can not stand. State v. Dooley, 64 Mo. 146.</p> <p>(1) The information, which was accompanied by the affidavit of the prosecuting attorney, is sufficient in form and substance. Kelley’s Crim. Law, sec. 609; State v. James, 194 Mo. 269; State v. Watson, 141 Mo. 338. (2) Counsel for the State have filed a motion to quash this writ of error and dismiss this case, because said writ was not sued out till more than twelve months after the plea of guilty entered by the defendant. R. S. 1899, sec. 837. (3) The trial court failed to assess the punishment of each defendant separately for each offense. The record shows that each defendant entered a plea of guilty to the charge of burglary and larceny; that each was sentenced to ten years in the penitentiary. The trial court should have assessed the punishment separately for each offense, and it is respectfully suggested that if this court can consider this case at all, the case be remanded with directions to the trial court to assess the punishment for each offense separately. R. S. 1899, secs. 2648 and 2649.</p>

— How. Wm. .N. Evans, Judge. The hill of exceptions does mot contain the motion for a new trial nor the motion in arrest of judgment; neither were exceptions saved to the overruling of said motions. There is, therefore, nothing before this court, ■except the record proper. State v. Reed, 89 Mo. 168; State v. Irwin, 171 Mo. 558.

— Hon. Argus Cox, Judge. (1) In this ca.se the sexual intercourse was admitted by defendant before any testimony was introduced, and never denied at any time during the trial. The rule is that the prosecution, in cases of seduction, where the sexual intercourse is denied, may refer to' the child born as a circumstance tending to corroborate the prosecuting witness as to criminal intimacy.

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

<p>APPEAL DISMISSED. A formal dismissal of the appeal by defendant and bis attorney leaves tbe judgment of tbe circuit court in full force and effect. ¡</p>

— How. L. B. Woodside, Judge. There was ample evidence of the guilt of the defendant; in fact, it was overwhelming and uncontradicted.

— How. Hugh Dabbs, Judge. This court cannot review anything* except the record proper, as defendant failed to save any exceptions to the overruling of the motion for a new trial. State v. Irwin, 171 Mo. 558.