Volume 209 — Missouri Reports

— Hon. Jas. T. Ne-ville, Judge. (1) The facts in defendants’ answer afforded cause for relief either by rescission or damages or in diminution of the price to he paid by defendants for the premises. Liese v. Meyer, 143 Mo. 555; McGrew v. Railroad, 87 Mo. App. 250; Haeusler v. Holman Co., 49 Mo. App. 636; Bevin v. Powell, 11 Mo. App. 216, 83 Mo. 365.

— Him. Chas. I). Stewart, Judge. (1) (a) The court committed error to the prejudice of defendant in its rulings on the evidence offered by defendant on the trial of the question of the change of venue. The objections of the State to the testimony of Dr. Knight, that “the sentiment was against the defendant,” were improperly sustained, and the answer of the witness was erroneously stricken out.

— Hon. J. W. Alexander, Judge. (1) The cause of action accrued in Jackson county where both parties resided and the alleged libel was first published. Held: that there is no evidence of justification in this case. The justification pleaded and proved, in order to amount to legal justification, must be as broad as the charge and must go to the precise charge.

<p>1. DEMURRER: Admits Facts. A demurrer to the evidence admits every fact -which the jury may infer from the evidence before them, and should be sustained only when the evidence thus considered fails to make proof of some essential averment.</p> <p>2. FELLOW-SERVANT: Exact Expression of Rule. It is impracticable to so define what constitutes the relation of fellow-servants between two of defendant’s employees that all cases may be weighed and gauged by it. Unsatisfactory though it be, the rule must remain general, and its application specific as cases arise".</p> <p>3. -: Exception to Rule. The exception to the general rule that the master is not liable for injuries to a servant inflicted by a fellow-servant, is perhaps as well stated in Parker v. Railroad, 109 Mo. 1. c. 40S, as anywhere else, wherein it is stated that the rule should be applied only in those cases where the servant injured and those inflicting the injuries are so associated and related in their work that they can observe and have an influence over each other’s conduct, and can report delinquencies to a common correcting power or head; in short, they should be fellow-servants in fact, and not simply in dialectic ' theory.</p> <p>4. -: -: Car Painter: Switchman. A painter employed in car sheds, where from 1,000 to 2,500 persons were employed, all under the direction of a general superintendent, the painter under the direction of -a foreman, was not a fellow-servant of a switchman, whose duty it was to assist the motorman, both under the immediate direction of the superintendent, to hitch a dummy engine to cars in the sheds and move them to the tracks'for use.</p> <p>5. -: -: — : Limited to Railroads. The same reason which applies an exception to the general fellow-servant rule to railroads, is applicable to large manufacturing plants and other businesses. Where a master is operating a great enterprise which calls for various departments in the execution of his work, whether it he a railroad or an immense plant for the manufacture and construction of cars, requiring various and distinct branches of labor, whether under different foremen or not, he is within the exception to the rule.</p> <p>6. -: Stare decisis. The doctrine of stare decisis applies to a decision on points arising and decided in the case, on the final result reached, and not to the reasoning by which the result was reached or to discussions of doctrines contained in the opinion or to criticisms of other cases. [Citing Grattis v. Railroad, 153 Mo. 380, and approving of the result reached, but not approving the criticism of the departmental doctrine as applied to fellow-servants.]</p> <p>7. NEGLIGENCE: Master and Servant: Reasonably Safe Place. When the defendant carworks company, through its foreman in charge of the painters, sent plaintiff to work at painting a car, standing as was customary upon its tracks inside the car sheds, it was its duty to provide against other cars running down against the car he was painting and to see to it that other cars which were pulled out of the sheds were not attached to the car upon which he was working without giving him warn- • ing of its intention to move said car. The servant does not assume the' risk arising from the master’s neglect to use suitable precaution for his safety.</p> <p>8. -: -: -: At Time Work Began. It is not sufficient that the place was. reasonably safe when the servant was sent to work. The master’s duty is a continuing one. If the car which the servant was painting was rendered unsafe by the sending by the master of á switching crew who attached a dummy engine to it without giving him warning that they intended to move it, the master is liable for the consequences of that negligent act.</p> <p>9. -: -- — : -: Vice-Principal: Switchman. Whenever the master delegates to another the performance of a duty to his servants, which the master has impliedly contracted to perform in person, or which rests upon him as an absolute duty, he is liable for the manner in which that duty is performed by the middle man whom he has selected.as his agent. So that the defendant car company, in directing a switchman to move a car on the same track and next to the one which plaintiff at the time in the line of his employment was painting, and that car was moved, without any warning to or knowledge by plaintiff that it was attached to the one on which he was working, the switchman was the company’s vice-principal, and the company is liable for his negligence.</p> <p>10. -: Contributory: Matter of Law. Under the circumstances of this case the court had no right to declare as a matter of law that plaintiff’s contributory negligence would bar his recovery, but that was a question that should have been submitted to the jury under proper instructions.</p>

Prohibition. (1) This is a proper case for prohibition; the object of the writ being to restrain respondent, as judge of a circuit court, from further proceeding therein for want of jurisdiction, in the court, to entertain and try the cause; and the writ will issue equally where the inferior court exceeds or undertakes to exceed its jurisdiction in a cause of which it may take cognizance, no less than in cases where it has no jurisdiction whatever.

— Hon. Geo. W. Wcmamalter, Judge. This court has no jurisdiction of this appeal. The amount claimed in plaintiff’s petition is below the jurisdiction of this court, and there.is no constitutional question raised upon this record, which would rightfully bring the appeal to this court. That the seventh assignment in the motion for new trial does not raise such a constitutional question as to give this court jurisdiction, has been expressly decided in several cases.

<p>NEGiliGENCE: Contributory: Reversal. For the reasons set forth in Sanguinette v. Railroad, 196 Mo. 466, it is held, that the injuries of plaintiff in this case were largely due to his own negligence in permitting his wagon to collide with a fast-moving train, at a country crossing, and the judgment of $5,000 in his favor is therefore reversed.</p>

<p>Appeal from New Madrid Circuit Court. — Sim H. C. Riley, Judge.</p>

— No». Shannon G. Douglass, Judge. (1) Plaintiff’s petition wholly fails to state a cause of action, and the issues of this appeal should, therefore, be determined in favor of appellants upon a consideration thereof alone, for the reasons: (a) The certificate of incorporation issued by the Secretary of State is a final determination of its right to be and do business as a corporation, and thereafter no one except the State, by a direct proceeding, can question its corporate…

<p>1. INFORMATION: Forgery: Consideration: Amendment. Under the statute (Sec. 2013, U. S. 1899) condemning the selling, exchanging or delivery, or an offer to sell, exchange or deliver, for any consideration, any falsely altered, forged or counterfeit instrument, it is not necessary, in charging the offense, to use the word consideration. Equivalent terms are sufficient. So that where the information charged that defendant did sell, exchange and deliver to a bank, “for the sum of $196, a falsely made, forged and counterfeit instrument,” it sufficiently charged the consideration, and no force or 'validity was added to the information by an amendment after the trial began by interlining the words “consideration of the” just before the word “sum.”</p> <p>2^ FORGERY: Utterance: Loan and Sale: Wrong Statute. Where defendant forged the names of three sureties to a promissory note, signed by himself and made payable to a bank, and presented it to the bank in pursuance to negotiations between him and its officers for a loan, and obtained a loan thereon, his conviction cannot be maintained under Sec. 2013, R. S. 1889, for his offense was not a sale, exchange or delivery of an altered, forged or counterfeit instrument, with the intention of having the same uttered or passed, as contemplated by that section, but his offense was that defined by section 2009, which provides that “every person who, with intent to injure or defraud, shall falsely make, alter, forge,” etc., or under section 2012, for forging or uttering the note knowing it to be forged. And his conviction, under said section 2013, of forgery in the fourth degree cannot stand.</p> <p>3. CONVICTION UNDER WRONG SECTION: Acquitted Under Right Section. Where the facts of defendant’s offense do not bring his case within the purview of a statute under which he was convicted, he is entitled to his discharge, notwithstanding he was acquitted under another statute clearly applicable to his offense and he is clearly guilty of the offense denounced by that statute.</p> <p>4. PLEA IN BAR: Preserved for Review. A plea in bar, in order to be considered on appeal, must be set out, not simply referred to, in the bill of exceptions.</p>

<p>1. INFORMATION: Assault: Felonious. An information that charges that defendant, in and upon one John Weak, “unlawfully and feloniously did make an assault,” charges that the assault was felonious.</p> <p>■2. -: -: Lawful Money: Uncertainty. A’contention that “seventeen dollars, lawful money of the United States, of the value of seventeen dollars,” is too uncertain and indefinite, is without merit.</p> <p>3. -; Robbery: Double Charge in One Count: Waiver. There are two ways under the statute (Sec. 1893, R. S. 1899) by which robbery in the first degree may be committed, one by feloniously taking the property of another from his person, or in his presence and against his will, by violence to his person, and the other by putting him in fear of some immediate injury to his person; and it is better pleading, when it is desired to charge that the robbery was committed in both ways, to state the different allegations in separate counts. But if both ways are charged together in one count conjunctively, by the use of the word “and" where the statute uses “or,” and no motion to quash or to elect is made, it is too late to raise the objection in the motion in arrest or on appeal.</p> <p>4. -:-:-: Instruction. Defendant cannot complain because the instructions required the jury'to find that the robbery was committed in both the ways charged in the information, that is, by force and violence to his person, and by putting him in fear. It was only necessary for the State to show that defendant committed the robbery in one of the two ways indicated in the statute; but if it assumed the unnecessary burden of requiring that it was committed in both ways, defendant cannot complain.</p>

<p>1. THEFT: Circumstantial Evidence: Sufficiency. The evidence in this case is reviewed and held sufficient to support the verdict finding defendants guilty of having stolen chickens in the night time.</p> <p>2. -: -: Conflict. It is for the jury to settle the conflict between the evidence of defendants and that of the prosecuting witness; and if they believe the latter, and disbelieve the former, all • conflict disappears..</p> <p>3. -: Falsehood: Usual Concomitant. It is a familiar experience that falsehood' is the usual concomitant of crime, whereas truth is the reliance of innocence.</p> <p>4. NEW TRIAL: Newly-Discovered Evidence. Where it is obvious that the newly-discovered evidence would he only cumulative, and would at most only have the effect of impeaching a State’s witness, whose testimony defendants had themselves contradicted, the court does not commit error in refusing to grant a new trial.</p>

<p>1. LARCENY: Diamond Ring: Proof of Theft of Diamond Stud: Variance. Evidence tending to prove larceny. of a diamond shirt stud does not constitute proof of larceny of a diamond ring. So that where the information charged defendant with stealing a diamond ring, that charge is not sustained by evidence that he stole a diamond stud from the shirt of the prosecuting witness. Such a case is not one of variance between allegation and proof, but one of a failure of proof.</p> <p>2. -: -: -: Removing Diamond from Stud. The information charged that defendant in the city of St. Louis “one diamond ring of the value of three hundred dollars, all the money, goods, chattels and personal property of Thomas Kerr, then unlawfully did steal, take and carry away from the owner thereof.” The evidence showed that defendant was a bell-boy at a hotel in Shreveport, Louisiana, and that Kerr while stopping at that hotel lost from his shirt a diamond stud of the value of three hundred dollars; that immediately thereafter defendant was arrested in Shreveport, and held several days and released, there being no evidence against him that he took said diamond stud; that afterwards defendant was arrested in St. Louis and in his possession was a diamond ring, and the evidence tended to • prove that the diamond in the said ring was the same diamond that was lost by Kerr in Shreveport, and that was the State’s case. Defendant’s evidence tended to show that he had owned a diamond ring prior, to the theft in Shreveport, and experts testified that it is impossible to identify stones after they have been removed from their original settings. Held, that there was "a total failure of proof. A diamond stud being a distinct and separate thing from a diamond ring, proof of the theft of the stud did not sustain the charge of larceny of the diamond ring.</p> <p>3. FAILURE OF PROOF: Instructions. Where there is no proof of the charge alleged in the information, there is nothing upon which to predicate instructions.</p> <p>4. LARCENY: Recent Possession. Where the proof shows the theft of a diamond stud in Shreveport, Louisiana, on October 18th, and the possession by defendant of a diamond ring in St. Louis on or about December 18th, an instruction which tells the jury that if they find from the evidence that the property or any part thereof was found in the exclusive possession of defendant recently after the 18th of December, he is presumed to be guilty of the theft, is erroneous for the reason that it completely ignores the interval between the 18th of October and the 18th of December.</p>

<p>1. DYING DECLARATIONS: Affirmative Ruling Thereon. Tbe fact that the court sent the jury from the room when evidence was offered by the State tending to show dying declarations by the deceased, and heard the evidence in respect thereto, and then had the jury recalled and allowed the evidence to be submitted to them, was equivalent to an affirmative ruling by the court that such declarations were primarily admissible.</p> <p>2. -: -: Instruction: Asked by Defendant: Nothing Else Left for Him to Do. The instruction given in this case admits in no uncertain language that the statement made by deceased to her mother was a dying declaration, and tells them the facts necessary to be found by them to constitute it a dying declaration and the proper weight to be given to it, and having been asked by defendant he cannot convict the trial court of error in giving it on the ground that “there was nothing left for him to do but to obtain the most favorable instruction possible upon the theory of law advanced by the court” that the dying declaration “is finally left to the jury and I think under the testimony I should let it go to them.”</p> <p>3. HEARSAY: Objection: Incompetent. An objection tbat proffered testimony is incompetent, irrelevant and immaterial, amounts to no objection at all, and bence where tbis was tbe only objection made to tbe testimony of witnesses to tbe effect tbat a witness wbo was with deceased at tbe time she was assaulted bad made statements connecting defendant with tbe assault, tbe Supreme Court cannot consider tbe competency of their testimony.</p> <p>4. CIRCUMSTANTIAL EVIDENCE: No Instruction. It is only where tbe State relies upon circumstantial evidence alone tbat. an instruction on such evidence should be given. So where tbe deceased made a dying declaration tbat it was defendant wbo assaulted her, and tbe young man wbo was with her said' tbe assault was committed by defendant, although be bad often contradicted tbat statement before testifying, yet, the. credibility of bis testimony being for tbe jury, tbe court did not err in refusing to' give an instruction on circumstantial evidence. ></p>

<p>1. INDICTMENT: Preliminary Examination. The fact that the circuit attorney had filed an information in the court of criminal correction, charging the defendant with murder in the first degree, was no bar to the finding of an indictment by the grand jury, charging him with the same offense, while said preliminary examination was yet under way. The Act of 1905 (Laws 1905, p. 132) does not apply to an indictment, or to such a case.</p> <p>2. -: --: Bar. The grand jury may investigate and indict one charged with a felony although he has been arrested and is held for a preliminary examination, and is not bound to await the action of the examining court.</p> <p>3. -: -: Procedure First Instituted. Section 2476, Revised Statutes 1899, providing that “that mode of procedure which shall be first instituted by the filing of an indictment or information for any offense shall be pursued to the exclusion of the other,” etc., has reference only to informations filed in the circuit or criminal courts, and not to those filed before a justice of the peace or any other like court in which an examination is held merely for the purpose of binding the defendant over on bail, etc.</p> <p>4. -: Pleat in Abatement: No New Arraignment. A plea in abatement and a motion to quash the indictment, filed after arraignment and a plea of not guilty entered, do not have the effect of withdrawing the plea of not guilty, and defendant is triable after an overruling of the motion, without a new arraignment or another plea of not guilty.</p> <p>• 5. HOMICIDE: Provocation: Just Cause. Instead of using the words “just cause or provocation” the instruction should tell the jury that “no words of abuse or vile names, however calculated to excite indignation 6r anger, would constitute a lawful and reasonable provocation;” but when the whole instruction obviously means that no words of abuse or vile names were sufficient to reduce the homicide from murder to manslaughter, it is not erroneous, simply because it unhappily uses the words “just cause or provocation” instead of “lawful and reasonable provocation.” The case of State v. Grugin, 147 Mo. 39, is no authority for a legal distinction between “just cause” and “reasonable and lawful provocation,” nor does it overrule the long and unbroken line of authority to the effect that mere words of reproach, however degrading, will not of themselves constitute such a lawful provocation as to reduce a killing from murder to manslaughter.</p> <p>6. -: Self-Defense: Instruction. To a full and favorable instruction on self-defense, the court added these words: “Words and epithets, however vile and grievous, will not justify an assault, and if you believe from the evidence that the defendant sought or brought on a difficulty with the said Charles Schaefer with the intent to kill him or do him some great bodily harm, then the defendant cannot justify the killing of said Schaefer on the plea of self-defense.” Held, that the words “with intent to kill him or do him some great bodily harm” modify the words “sought or brought on a difficulty,” etc., and the instruction is correct, and in no sense in conflict with prior rulings of this court.</p> <p>7. -: Heat of Passion. The instructions in this case correctly define “heat of passion.”</p>

<p>1. CONVICTION: Sufficiency of Evidence. Before a defendant can be convicted of a criminal offense the testimony must he sufficient to authorize and support such conviction.</p> <p>2. -: -: Suspicion: Based on Other Crimes. Where the most that can be said of the testimony is that it raises a suspicion that the defendant committed the murder charged, and this suspicion is aroused by proof that defendant had three days before the murder stole a pistol in St. Louis which was found on the railroad track near the house in Kansas City in which the crime was committed, and by proof that that pistol was of the same calíbrelas bullets found lodged in wood in the room in which the crime was committed, there is no evidence upon which a verdict of guilty can rest.</p> <p>3. -: -: Absence. Where there is an entire absence of any testimony showing that the defendant or any one answering his description was near the premises at the time deceased was killed in his saloon in Kansas City, and the first time he was seen thereafter was soon after a train, that left Kansas City shortly after the murder, arrived in* Independence, and no evidence was forthcoming that connects him with the murder except that a pistol which he stole in St. Louis was found on the railroad track near the saloon early next morning, a verdict of guilty cannot stand.</p> <p>4. -: Application of Law. The law should be universal in its application. Every citizen, whatever his station, is entitled to the presumption of innocence, and when charged with a crime substantial evidence touching his guilt must be adduced or he should be discharged.</p>

<p>1. WRIT OF ERROR CORAM NOBIS: Function: Limitations. The office of a writ of error coram nobis is to bring to the court’s attention and to correct some error of fact which did not appear in the record, and which was unknown to the court. Such writ is not barred by the Statute of Limitations, but may be issued at any time after error committed.</p> <p>2. -: Discretion: Facts Considered. The writ of error coram nobis is not a writ of right, but is granted or refused in the discretion of the court on affidavits presented or evidence adduced; but the court, in passing upon the application for the writ, should not consider any facts which might have been put in evidence by defendant had he been put upon trial in the case.</p> <p>3. -: Recognizance: Death of Principal: Vacating Judgment: Discharging Sureties. Where, after judgment entered against the sureties on a recognizance, the sureties filed a motion in the nature of a writ of error coram nobis, praying the court to vacate its judgment on the ground that the principal in the recognizance was dead at the time of the rendition of the judgment, and the court, after considering the motion and affidavits filed in support thereof, sustained the motion and set aside the judgment, it could not go further and enter final judgment in favor of the sureties, discharging them from liability on the recognizance. After vacating the judgment, the proceeding on the recognizance should have been conducted just as if no judgment had ever been rendered thereon, and the question whether the principal in the recognizance was dead at the time of the rendition of the judgment could be put in issue by answer to the scire facias, and tried by a jury, if necessary, as in other jury cases.</p>

<p>1. INDICTMENT: Indorsement of Witnesses. Where no motion to quash the indictment was made because of a failure to indorse the names of witnesses thereon, and no objection to such failure is made until after final judgment, the objection comes too late.</p> <p>2. VENUE: Accomplice: Then and There: Margin. Where the indictment clearly lays the venue as in Wright county in charging the defendant’s brother with the homicide, and then proceeds to charge defendant as “then and there” aiding and abetting in said murder, it sufficiently charges the venue as to defendant; and the venue is also established by the margin of the indictment as to both offenses.</p> <p>3. INDICTMENT: Principal and Accomplice: Sufficiency. The Indictment in this case, charging the defendant’s brother with murder and defendant as assisting and abetting him in the murder, is sufficient both in form and substance, and avoids the point upon which error was predicated in State v. Burns, 99 Mo. 471.</p> <p>4. CHANGE OF VENUE: Failure of Judge to Appear. Where the regular judge is disqualified, and calls in another judge to try the cause, he has authority, upon the failure of such other judge to appear, to call in some other circuit judge to try the case, and it is only on the failure of this second judge called in to appear that the statute requires a change of venue.</p> <p>5. -: No Exceptions. Where no exceptions were taken and saved in the circuit • court to the calling in of the judge who tried the cause and to the overruling of defendant’s application for a change of venue, the question of the jurisdiction of the trial judge to try the cause is not before the Supreme Court for review.</p> <p>6. DEFENDANT’S PRESENCE AT TRIAL: Steps in Trial. The disqualification of the regular judge of himself and the calling in of another judge to try the case, and the adjournment of the court by the sheriff upon the failure of such judge to appear, and the filing of defendant’s application for a change of venue and the overruling of the same, are not steps in or part of the trial.</p> <p>7. -: -: Appearance at Arraignment, Etc. If defendant was present in person at his arraignment, and announced ready for trial, and selected the jury and offered a demurrer to the evidence, he will, under the statute, on appeal, be presumed to have been present during the whole of the trial.</p> <p>8. -: -: Continuance. An application for a continuance is no part of the trial.</p> <p>9. -: -: Motion for New Trial, ü failure of the record to show defendant’s presence at the filing, hearing and overruling of his motions for a new trial and in arrest, is not error.</p> <p>10. ' EVIDENCE: Objections: Incompetent: Leading Questions, Etc. The overruling of objections' made after the witness had testified, or that the evidence is incompetent, irrelevant and immaterial, or that the questions are leading, is not error.</p> <p>11. -: Clothing of Deceased. It is not error to admit the clothing of deceased, to show where the stabs were inflicted.</p> <p>12. -: Could Have Seen. Where the witnesses were on the ground, saw the encounter between deceased and defendant’s brother, and testified that defendant took no part in it, it is not reversible error to exclude evidence that they could have seen defendant if he had taken part in the struggle. While the question was proper, it is obvious that affirmative answers could have added nothing to their testimony, and that no harm resulted to defendant by excluding their answers.</p> <p>13. -: Hearsay: Res Gestae. It is proper to exclude as hearsay the answer of a witness who came out of the church after the difficulty was over and' deceased was dead, who was asked, “Was anything said there over the body about anybody having hit deceased except defendant’s brother, at any time there at the body?”</p> <p>14. -: What Occurred After Difficulty. Testimony as to what was said and done after the difficulty was over, unless confined to the actual participants, should be excluded.</p> <p>15. PRACTICE: Closing Argument for State. Unless the action of the court in permitting an attorney other than the prosecuting attorney to make the closing argument for the State, is assigned as error in the motion for new trial, it cannot be reviewed on appeal.</p> <p>16. INSTRUCTIONS: No Assignment. Where error in the giving of instructions on the part of the State is not assigned in the motion for a new trial, they are not for review on appeal.</p> <p>17. -: Refusing Defendant’s. Where the instructions given cover every phase of the case, it is not error to refuse those asked by defendant.</p> <p>18. SUFFICIENCY OF EVIDENCE. . Where the evidence on every material point in the case was in hopeless conflict, but that for the State, if true, was sufficient to sustain the verdict, the Supreme Court will not interfere.</p>

<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>1. INFORMATION: Receiving Stolen Property. An information for receiving stolen property knowing the same to have been stolen, which charges defendant with receiving the property “then and there well knowing the said goods, chattels and personal property to have been taken and carried away” from the owner “with the intent on the part of the thief, as aforesaid, to permanently deprive the owner ... of the use thereof,” is invalid, since it does not allege that the defendant knew at the time that the property had been stolen, or that the taking was with the intent to convert the property to the taker’s use. Had the averment been in the language of the statute, that is, that defendant. received the property knowing the same to have been stolen, it would have been good; but the words “to permanently deprive the owner” of his property do not necessarily mean that a crime of any kind has been committed, while the word “stolen” means that a larceny or theft has been committed.</p> <p>2. -: Second Information: Suspension of First. Where, after the filing of an information, a second information is filed, charging identically the same offense and based upon the same alleged criminal transaction, the second information operates as a suspension of the first, and a defendant cannot be tried upon said first information while the second remains undisposed of.</p>

<p>BILL OF EXCEPTIONS: Filed Out of Time: Motion for New Trial. Where defendant files a motion for new trial, which is continued, to the next term and overruled, and no hill of exceptions is filed at the term during which the motion for new trial is overruled, and no leave is asked or obtained to file the hill of exceptions in vacation or at the next term, a bill filed at such subsequent term cannot he considered.</p>

— Hon. Chas. D. Steioart, Judge. The verdict is invalid for uncertainty, as it is impossible to tell of which offense defendant was convicted. State v. Rowe, 142 Mo. 439; State v. McGee, 181 Mo. 315; State v. Jones, 168 Mo. 408; R. S. 1899, sec. 1891. .

<p>BURGLARY AND LARCENY: Verdict: Separate Punishment. In a prosecution for burglary and larceny, a verdict of guilty which fails to assess the punishment for each offense separately, is erroneous.</p>

<p>Appeal from Randolph Circuit Court. — Ho». Aubrey B. 'Hammett, Special Judge.</p> <p>(1) The court erred in giving instructions 1 and 2 on the part of the State. State v. Reynolds, 126 Mo. 149; State v. Branstettor, 65 Mo. 148; State v. Palmer, 88 Mo. 568. (2) The court erred in not instructing the jury under sections 1848 and 1849', Revised Statutes 1899. State v. Nelson, 118 Mo. 124; State v. Taylor, 118 Mo. 153; State v. Rufus, 149' Mo. 406.</p> <p>(1) Instruction 1 correctly defined the crime of assault with intent to kill, and also told the jury what was the punishment therefor. State v. Jones, 86 Mo. 625. (2) The evidence for the State was sufficient, if believed by the jury, to warrant the verdict of guilty. If the State’s witnesses told the truth about this difficulty, defendant was certainly guilty of a most uncalled for and brutal assault. It is doubtful even if defendant’s own testimony was sufficient to acquit him on the ground of self-defense. Where there is substantial evidence tending to show that defendant is guilty, this court will defer to the finding of the jury and affirm the'judgment. State v. Smith, 190 Mo. 706; State v. Groves, 194 Mo. 452; State v. Payne, 194 Mo. 442; State v. Swisher, 186 Mo. 8.</p>

<p>INFORMATION: Conclusion: Omission of “The.” An information which concludes, “against the peace and dignity of State,” omitting the word “the” immediately preceding the word “State,” is invalid, since it violates section 38, article 6 of the Constitution, which provides that “all indictments shall conclude, ‘against the peace and dignity of the State,’ ” (Following State v. Campbell, 210 Mo. —.)</p>

<p>Appeal from Crawford Circuit Court. — -Ho». L. B. Woodside, Judge.</p> <p>(1) The court erred in the abuse of its judicial discretion in permitting witness Josbua Brown to testify, because be was incompetent, being a person deficient in understanding. 1 Greenl. Ev. (Redf. Ed.), pp. 413, 414; see. 4659, R. S. 1809'; Ridenour v. Railroad, 102 Mo. 288; State v. Nelson, 132 Mo. 198, (2) The testimony of Laura Brown with reference to previous acts of defendant ought not to have been admitted, because it does not detail any specific previous acts of unchastity by defendant nor refer to any particular time when any other alleged intercourse between them took place. State v. Prewitt, 202 Mo. 51. (3) The information having charged defendant to have been a single person, the State is compelled to prove the same to the same degree that it is required to prove • any other material allegation contained therein. 2 Greenl. Ev. (5 Ed.), p. 462; State v. Coffey, 39 Mo. App. 58; State v. St. John, 94 Mo. App'. 2291; State v. Cooper, 103 Mo. 266 ; State v. Roswell, 6. Conn. 446. (4) The instruction of the court, number 5, in confining the finding of the jury to the alleged act of intercourse in July, 1906', was not sufficient, in that it did not inform the jury to what extent and for what purpose they could consider any other alleged acts of intercourse or lascivious conduct between prosecuting witness and defendant.</p> <p>(1) No error was committed in permitting State’s witness.. Joshua Brown to testify. This witness testified that he was eleven years old, and the statute says that children under ten are presumed to be incapable of testifying. In other words, the witness was presumed to be old enough to appreciate his position and his duties. R. S. 1899, sec. 4659; State v. Nelson, 172 Mo. 198; State v. Doyle, 107 Mo. 42; Rapalje on Witnesses, sec. 7. No error was committed in allowing the State to prove by witness Laura Brown that defendant had sexual intercourse with her previous to the day in July, 1906, when they were seen by Joshua Brown. If error was committed, defendant is in no position to complain, as lie simply made objection to such, evidence without giving any reason therefor, which is insufficient. - State v. Adams, 108 Mo. 216. No error was committed in not limiting the State to any particular act of intercourse; as defendant’s attorneys did not ask to have the State elect upon which act the State would rely for a conviction. Having failed to make such a request, defendant has waived the right now to complain. State v. Prewitt, 202 Mo. 51; State v. Palm-berg, 199 Mo. 243. (2) The evidence that defendant was a single person was sufficient, especially in view of the fact that defendant offered no evidence to the contrary. Proof that a defendant has been lawfully married, and proof that he has been illegally married, may be made by the defendant’s admissions, and so may proof of his divorce. State v. McDonald, 25 Mo. 179; Buchanan v. State, 55 Ala. 175; State v. Sanders, 30 Iowa 582; State v. Libby, 44 Me. 679; Com. v. Holt, 121 Mass. 61; State v. Medbury, 8 R. I. 543; Boger v. State, 19 Tex. App. 91; Wolverton v. State, 16 Ohio 173; 2 G-reenl. on Bv., sec. 49. It is, therefore, earnestly insisted by the State that such an immaterial allegation in the information (as section 2172 makes no reference to married or single persons) is supported by evidence of defendant’s admissions. (3) The record shows that instruction 5 was asked by defendant and given at his request.</p>

<p>1. INFORMATION: Unnecessary Description: Proof. It is an accepted rule in criminal practice that if a necessary allegation is made unnecessarily minute in description, the proof must satisfy the description as well as the main part, since the one is essential to the identity of the other. But where the allegation is immaterial and surplusage, there need be no proof of it.</p> <p>2. -: -: Deadly Weapon: Proof. It is unnecessary to insert in the information the words “with a deadly weapon” as descriptive of the knife with which the stabbing was done, and an information charging a felonious assault with a knife with intent to kill is sufficient without those words; and it is also unnecessary to prove that the knife was a deadly weapon when the information uses those words, for they may be considered surplusage.</p> <p>3. -: -: -: Instruction. And it being unnecessary to prove the charge in the information that the stabbing was done “with a deadly weapon,” the instructions need not require the jury to find that the knife with which the stabbing was done was a deadly weapon.</p> <p>4. DEADLY WEAPON: Assumption: Presumption Arising from Use: In Instruction. But where the proof is such that it cannot be assumed as a matter of law, either from the size of the knife used or the wound itself, that the knife was a deadly weapon, it is error for the court to instruct the jury that “he who uses upon another at some vital part a deadly weapon of any kind, must in the absence of qualifying facts be presumed to know that the effect is likely to produce death, and knowing must be presumed to intend death,” etc., unless that or some other instruction requires the jury to find that the knife used was a deadly weapon.</p> <p>5. -; Possession: Self-Defense. An instruction which tells the jury that if defendant prepared himself with a knife and with it in hand sought and brought on the difficulty, etc., there is no self-defense in the case, is not error, and does not make the mere possession of the knife a circumstance which denied him the right of self-defense.</p> <p>6. ASSAULT: Malice Aforethought. Under the evidénce in this case, which is one for an assault with intent to kill, it was error to refuse an instruction which left it to the jury to say whether the assault was done with malice aforethought or with an intent to kill or do some great bodily harm without malice aforethought.</p> <p>7. IMPEACHMENT: Reputation: Cross-Examination. A liberal cross-examination of witnesses called by the State to rebut the defendant’s attack upon the reputation of the prosecuting witness for peace, should be allowed, but the extent to which it may go is largely in the discretion of the trial court. And in this case, it is Held that where an attempt was made to break down the defendant’s attempted showing that the prosecuting witness was a quarrelsome man, no reversible error was committed by the exclusion of a cross-examination tending to show that he had made vicious and unwarranted assaults upon others.</p>

<p>1. RES GESTAE: Evidence: Statements of Party Injured. In a prosecution for murder, all that occurred at the time and place of the shooting, which had reference thereto or connection therewith, was part of the res gestae, and was properly admitted in evidence; and, therefore, it was not error to permit a witness, who was wounded by defendant at the time of the shooting of deceased, to testify as to the nature of the wound the witness received and as to what he said and did following the shooting.</p> <p>2. DEFENDANT AS WITNESS: Impeachment: Reputation: Improper Form of Question: Rebuke. When a defendant testifies as a witness in his own behalf, he is subject to impeachment by evidence of his general reputation for truth and morality, the same as any other witness. While a question propounded to a witness, if he knew the defendant’s reputation for truth and veracity as an average negro, was not in proper form, yet the subject of the inquiry was a proper one, and the question being presumably asked in good faith, a rebuke of the prosecuting attorney for asking the .question was not called for.</p> <p>3. REMARKS OF COUNSEL: Rebuke: No Exception: Waiver. The prosecuting attorney, in his closing address to the jury, said: “The parties to this killing were negroes, and if you allow negroes to. shoot each other, how long will it be until they are shooting you white men?” Upon objection by defendant to these remarks, the court said to the prosecuting attorney: “It is improper for you to appeal to race prejudice, or refer to the race of the defendant. It must not be repeated, you must stay in the record.” Held, that the court’s rebuke was sufficient; and, besides, no exception being taken or saved at the time to the insufficiency of the rebuke, the point must be considered as waived.</p> <p>4. JURY: Separation: Misconduct: Affidavit. An affidavit which states that affiant left at the residence of one of the members of the jury a daily paper which contained a statement with reference to the trial, and the names of the jurors selected to try the case, and the names of the attorneys engaged in the trial, but which does not say that the juror ever saw-or read the paper, is no proof that the jury separated, or that any member of the jury was guilty of misconduct.</p> <p>5. MURDER: First Degree: Sufficiency of Evidence. Evidence held sufficient to support the verdict finding defendant guilty of first degree murder.</p> <p>6. -: Shooting at One, Killing Another: Intent. Although. defendant may have shot at one party with the intention of killing him, and killed another party, he is equally as guilty of murder as if he had killed the party whom he intended to kill, since the felonious intent in such case, follows the hullet.</p>

— Ho». A. W. Lincoln, Judge. (1) The trial court erred in overruling defendant’s application for a continuance.

Louis County Circuit Court. — Ho». Jno. W. McEVhmney, Judge. . (1) The petition is in the words of the statute, so far as the allegation complained of is concerned, and is sufficient. Sec. 9772, R. S. 1899.

Louis City Circuit Court. — Row. Walter B. Douglas, Judge. (1) While the State may present its claim for taxes, it is not compelled to do so; it is the duty of the executor to pay the taxes without any demand therefor being presented to the court for allowance. R. S. 1899', see. 184, subd. 3; secs.. 4259, 4260' and 9246; State ex rel. y. Tittmann, 103 Mo. 553, 119 Mo. 661; State ex rel. v. Burr, 143 Mo. 209; State ex rel. v. Donaldson, 28 Mo.

— Eon, W. L. Jarrott, Judge. (1) The deed should not have been admitted in evidence at all. It was a copy of the record. The proof of the inability to produce the original was insufficient. The record constituted no evidence because the acknowledgment was not authenticated under the seal of the City of Kansas. Laws 1853, Approved Feb. 22, 1853, sec. 6, art. 3.

— Now. J. N. Slo* ver, Judge. . (1) If the appliances are safe for the purpose designed but the party is injured by improper handling, the master is not liable. Holmes v. Brandenbaugh, 172 Mo. 53. (2) Plaintiff was fully aware of all the conditions, and the evidence presents no excuse for his putting his hands between the rollers, and he was guilty of contributory negligence. Holmes v. Brandenbaugh, 172 Mo. 53.

- — Hon. Jas. H. Slover, Judge. (1) No compensation having been paid to Mrs. Holmes, or into court for her, as required by both the Constitution and the city charter, her proprietary interest in her property cannot lawfully he disturbed.

<p>1. WILL CONTESTS: Question for Jury. Not every -will contest is to be submitted to the jury. The court may give a peremptory instruction for proponents, or sustain a demurrer to contestants’ evidence, as in other cases. Statutory will contests are on the same footing as ordinary law suits, as regards the province of the court or jury.</p> <p>2. -: Undue Influence: Statement By Son-in-law. A statement made by the husband of one of the devisees, to a witness, in the absence of testatrix, that testatrix “is no lady, because she did not do what I wanted her to do,” meaning the making of a will in accordance with his wishes, is not competent evidence of undue influence.</p> <p>3. -: -: Statement Made By Devisee: As Affecting Other Devisees. Where the petition charges no conspiracy between the devisees to influence their mother to make a will, it is not error to exclude a statement made by a daughter to a third party, in the absence of the mother and her other three children, that “while I live” her disinherited sister “shall not receive one cent of my mother’s property if I can help it.” The issue is will or no will, and a'will that is shown by competent, proof to be in fact the product of the undue influence of one devisee, out of several, is as much void as if it was the product of the undue influence of all of them; but where it is not shown that this daughter exercised any'influence over her mother or had anything to do with the execution of the will, .her unsisterly statement or admission was not competent against the others, to prove that undue influence was exercised by her. [Following Schierbaum v. Schemme, 157 Mo. 1, and overruling Gordon v. Burris, 141 Mo. 602, and Jackson v. Hardin, 83 Mo. 175.]</p> <p>4. -: -: Daughter: Decrease of her Share. A daughter’s influence in having her mother in her last will omit a special annuity and bequest made to her by a former will, and to increase to that extent the share of the other devisees, cannot be said to be undue.</p> <p>5. -: -: -: Explanation. An unmarried daughter, who resided with her mother, lovingly cared for her, and turned into the family chest the surplus of her wages earned as a stenographer over and above what was necessary to clothe herself, and went with her to the lawyer’s office when the will was made and at her request made the appointment with him for the occasion, stoodñn no such fiduciary relation to the mother as threw upon proponents the burden of explaining the provisions of the will or as would raise a presumption that it was produced by her or their undue influence.</p> <p>6. -: -: How Shown and Effect. Undue influence need not be shown by direct evidence. It may be shown indirectly and arise as a natural inference from other facts in the case. But it cannot rest on mere opportunity to influence or on suspicion; there must be proof of undue influence itself,t either in fact or presumptively, and to be effective it ought to be sufficient to destroy the free agency of the testator at the time of making the will.</p> <p>7. -: -: Statements Made by Testate. Where there is an issue upon the state of affections of the testatrix, statements and admissions made by her may be admitted upon that point, but they are not to be received or taken as proof of the truth of facts narrated. They are not to be taken as true for the purpose of establishing undue influence and defeating the will.</p> <p>8. -: -: Prior Wills. About 1882 plaintiff married against the wishes of her father and mother, and thereafter a business quarrel arose between her father and husband, which developed into a lawsuit in which the husband obtained judgment, which the father paid. Thereafter both the father and mother made wills, by which they disinherited plaintiff, and he gave all his property to his wife, suggesting therein that, should she survive him, she give it to his other four children. After his death and the death of one of the four children, plaintiff’s mother in 1892 made a new will, by which she disinherited plaintiff, gave an' annuity to her two unmarried daughters and the balance to the three of them in equal portions. Subsequently one of the annuitants married, and the other became self-supporting, and then, in 1903, she made a third will, by which, at the request of the unmarried annuitant, she cut out the annuities, gave to her her household effects, and divided the balance equally between the same three children, again disinheriting plaintiff. This unmarried daughter, at her request, made the appoinment with the lawyer to draw up the will and went with her when it was drawn up and executed. There was testimony that, while the first and second wills were operative, and even after the one of 1903 was executed, when none of the principal beneficiaries was present, the mother said to plaintiff and others that she had a kindly testamentary disposition towards plaintiff, that she recognized her faithful services in the days before the breach of the family peace, that she had become reconciled towards her, that it was her heart’s desire to.treat her in her will as she didder other daughters, but that she was in bonds on account of their . opposition and could not do as she wanted to do without exposing herself to bother, trouble and unhappiness. Held, that there was no evidence of undue influence, that her statements and admissions were not evidence to establish undue influence, and the court properly gave a peremptory instruction for proponents.</p>

— Hon. Wm. G. Ellison, Judge. (1) Oral contracts of the kind stated in the petition, when proven according to the standard of proof required, and shown to he performed, will be decreed to be specifically enforced. Lynn v. Hockaday, 162 Mo.

Louis County Circuit Court. — Hon. Jno. W. McElhmney, Judge. (1) All records and exemplifications of office books kept in any public office of tbe United States, or of a sister State, not appertaining to a court, shall be evidence in this State, if attested by the keeper of said records or books and the seal of his office, if there be a seal. R. S. 1899, sec. 30.98.

— -No». Nat. M. Shelton, Judge. (1) Plaintiff’s petition does not state facts sufficient to constitute a cause of action. Jopling v. Walton, 138 Mo. 485. (2) There was no tender in this case. Landis v. Saxton, 89 Mo. 375; Hudson v. Glencoe Gravel Co., 140 Mo. 103; secs. 1565 and 1564, R. S. 1899; Berthold v. Reyburn, 37 Mo. 586; Voss v. McGuire, 26 Mo. App., 452; Woolner v. Levy, 48 Mo. App. 469.

Louis City Circuit Court. — No». Walter B. Douglas, Judge. (1) Appellant is entitled to the rate of one cent per hundred gallons under the ordinance, (a) It is affirmatively shown by the evidence that, during the period in controversy, (1), appellant consumed over fifty million gallons of water annually from respondent’s water works; (2), appellant used the same at its manufacturing plant, located wholly in one city block; and (3), appellant used all of the same for purely…

— Eon. Jas. T. Ne-ville, Judge. (1) Defendant admits Ms possession of the land in controversy; and plaintiff shows that it descended to him and his grantors, and no sale or transfer of the title to the same from their ancestor entitles plaintiff to recover. R. S. 1899, sec. 3060. (2) The claim of an agreement to settle the dispute of the line between plaintiff and defendant in a former suit is not sustained by the judgment entered in said former suit.

— Hon. W. B. Teasdale, Judge. (1) Section 2988, Revised Statutes 1899, was enacted as a companion statute to section 2939, Revised Statutes 1899, and the same rules of legal construction apply to both. Under section 2939 the wife takes in lieu of dower. Under section 2938 the husband takes in lieu of curtesy.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) The specific and only act of negligence charged in the petition is-that “defendant had allowed its wires to become defective in insulation and in a dangerous condition.” No proof in support of this allegation was offered, and none appears in the record.

Louis City Circuit Court. — Now. O’Neill Ryan, Judge. (1) When this case was here on the former appeal it was reversed and remanded for a new trial, and not with directions to enter any particular judgment. State ex rel. v. St. Louis Circuit Court, 41 Mo. 574; State v. Newkirk, 49 MO'. 474; Updike v. Park, 11 111.

Transferred from St. Louis Court of Appeals. (1) A contract between two parties upon a valid consideration may he enforced by a third party, when entered into for the benefit of such third party, even though, he may not be mentioned in the contract, and though he was not privy to the consideration.

— Noto. Hugh Dabbs, Judge. (1) The control of the highways and streets is primarily in the State and the State acting in its sovereign capacity may grant the right to nse the streets and public highways in its discretion. Railroad v. St. Louis, 3 Mo. App. 320, 66 Mo. 256; Hisey v. Mexico, 61 Mo. App. 252; Keasby on Elec. Wires, sec. 3; Booth on St. Rys., pp. 107, 108; Elliott on Roads and Streets, pp. 327-332-698; 2 Dill. Mun. Corp,, secs. 657-683.

— How. J. W. Alex- ■ wider, Judge. When two adjoining proprietors are divided by a fence which they suppose to be the true line, or which is built in ignorance of the true line, each claiming only to the true line, they are not bound by the supposed line, but must conform to the true line when ascertained. St. Louis University v. McCune, 28 Mo. 481; Schad v. Sharp, 95 Mo. 573; Brummell v. Harris, 162 Mo. 397; McCabe v. Buere, 153 Mo. 1; Roecker v. Haperla, 138 Mo. 33.

Mandamus. (1) The provision contained in section 17 of the ■act, directing the clerk of the court to pay all fines, penalties and forfeitures collected by him into the city treasury, is unconstitutional in that it violates section '8, article 11, of the Constitution of the State.