Volume 220 — Missouri Reports

<p>1. APPEAL: By State. An appeal by the State from the action of the trial court in sustaining defendant’s objection to the introduction of evidence after the jury was impaneled and sworn, cannot be maintained. Even if the trial court had gone to the extent of declining evidence on the ground that the information was insufficient, and by order of record quashed the information, the State could not appeal.</p> <p>2. -: -: Discharge of Defendant. Where the State, the only appellant, had no right to appeal, the appeal will be dismissed, but the defendant will not be discharged by the appellate court, for that court acquires no jurisdiction of the cause, and hence cannot review the record and' determine whether or not defendant is entitled to a discharge.</p>

— Hon. Chas. D. Stewart, Judge. (1) Before arraignment defendant filed a motion to quash the information, but in no way challenged the constitutionality of the law, and in no respect referred to, or even suggested a constitutional question.

Louis City Circuit Court. — Hon. C. Orrick Bishop, Judge. (1) No order extending the time to the December term was made at the term during which the motion for new trial was overruled, and the filing of the bill of exceptions at the subsequent term does not preserve the action of the court in overruling the motion for new trial, and nothing can be considered here but the record proper.

— Hon. B. G. Thurman, Judge. Allegations must be proved as alleged in tbe information either literally or substantially as set out, and any variance of substance between the information and evidence in this respect will be fatal. State v. Frisby, 90' Mo. 533. It is not enough when defendant has made two contradictory statements to produce one in evidence to prove the other is false. 2 Wharton on Criminal Law, sec. 1317.

— Eon. Geo. W. Wanamaker, Judge. (1) The disqualification of the foreman is conceded, and such a case is not to he confounded with those where a mere irregularity in selection is shown. As to qualification of jurors, the statute .is mandatory; as to mode of selection, it is merely directory. 20 Cyc. 1303; R. S. 1899, sec. 3774; State v. Beckley, 18 Mo. 428; State v. Welch, 33 Mo. 33.

Louis City Circuit Court. — Eon. Eugo Muench, Judge. The indictment upon which appellant was tried and convicted concludes, “contrary to the form of the statute in such cases made and provided and against the peace and dignity of State.” The definite article “the” before “State” is - omitted in the concluding sentence of the indictment. It is only necessary to call the court’s attention to the learned, lucid and exhaustive opinion in State v. Campbell, 210 Mo. 202.

Louis City Circuit Court. — Eon. Moses N. Sale, Judge. (1) It seems to Tbe generally held that an indictment for larceny in a dwelling-house must describe the dwelling in such way as to identify it. Com. v. Smith, 111 Mass. 429; 2 Archbold’s Or. Pr. & P., *pp. 433, 434; Lamkin v. State, 42 Tex. 417; Williams v. State, 33 Tex. 345; Bishop’s Dir. and F. sec. 588, note 8; Rex v. Campbell, 2 Leach (3 Ed.), 642; State v. James, 194 Mo. 275.

— Eon. L. B. Woodside, Judge. (1) The record proper shows that the motion for a new trial was filed after judgment and sentence. The motion for a new trial must be filed before judgment. This is mandatory. Therefore, there is nothing before the court but the record proper, and if no error appears in the record proper, this court will affirm the judgment. R. S. 1899, sec. 2689; State v. Brooks, 92 Mo. 591; State v. Maddox, 153 Mo. 473.

St. Louis City Circuit Court. — Eon., Eugo Muench, Judge. (3) The court should have given the instruction on circumstantial evidence requested by defendant, the direct evidence having been thoroughly discredited and impeached. State v. Woolard, 111 Mo. 256; State v. Crone, 209 Mo. 330; State v. Robinson, 117 Mo. 649. And if the instruction was not correctly drafted, the court’s duty was to give a correct one.

— Row. Henry C. Riley, Judge. (1) (a) It was an error for the trial court to permit practically all of the witnesses for the State to detail to the jury conversations and statements of Mrs. S. A. Newcomb, made by her out of the hearing and not in the presence of defendant. Not alone were her statements and conversations thus made, permitted by the court to be shown, but her acts, her demeanor and her emotions, also.

Louis City Circuit Court. — Hon. Moses N. Sale, Judge. (1) The information, which is duly verified by the assistant circuit attorney, conforms to all the requirements of the statute and good pleading, and has been uniformly approved by this court. State v. Knock, 142 Mo. 522; State v. Hall, 164 Mo. 528; State v. Day, 188 Mo. 363; State v. Lakin, 203 Mo. 548.

— Hon. Wm. H. Wallace, Judge. (1) The confession was properly admitted in evidence. In the case at bar there was-evidence on the preliminary examination that no inducement was held out to obtain the confession from appellant, and in the absence of any improper conduct upon the part of the officers to induce such confession by flattery of hope or promise of immunity or use of threats, the confession was properly admitted in evidence.

<p>■ 1. OBJECTIONS: How Preserved. If a party desires the appellate court to review the action of the trial court, it is his duty to make his objections in the trial court and if they are overruled to save his exceptions to such ruling, and then to call the attention of the trial court to such alleged error in his. motion for a new trial, and to save his exceptions to the overruling .of his motion.</p> <p>-2. INSTRUCTION: Objection: Failure to Fully Instruct: Not Sufficient. Merely assigning in the motion for a new trial that the court failed to fully and properly instruct as to all the law of the case, is not an exception to the instructions actually given, but merely goes to the failure of the court to instruct on points not covered by the instructions given.</p>

Louis City Circuit Court. — Eon. Moses N. Sale, Judge. There was an utter absence of proof of the corpus delicti of the offense with which appellant stood charged. The proven facts were not “inconsistent with any reasonable theory of the defendant’s innocence” of the crime charged. Of the seven or eight salesmen who had access to and authority to sell these goods only two were placed on the stand.

— Hon. J. G. Sheppard, Judge. (1) The record title to the land in suit being in the name of Eobert Lee Hall, the admitted common source of title, the sheriff’s deed, order of publication, and taxbill, all being in the name of E. L. Hall are all void; and hence the sheriff’s sale and all proceedings in pursuance thereto were void and did not give the court jurisdiction of Eobert Lee Hall.

— Eon. J. L. Fort, Judge. (1) The affidavit on which the judgment, under which the land was sold for taxes was based, was sufficient. Allen v. Ray, 96 Mo. 542; Combs v. Crabtree, 105 Mo. 292; Harbert v. Durden, 116 Mo. App. 514; Paddock v. Paddock, 91 S. W. 398.

— Ron-. J. L. Fort, Judge. (1) The affidavit on which the judgment, under which the land was sold for taxes was based, was sufficient. Allen v. Ray, 96 Mo, 542; Coombs v. Crabtree, 105 Mo. 292; Charles v. Kelley, 120 Mo. 134; Harbert v. Durden, 116 Mo. App. 514; Paddock v. Paddock, 91 S. W. 398. (2) The intent of the Legislature is the primary object in construing all statutes. Grimes v. Reynolds, 94 Mo. App>. 584;-24 Eng. and Am. Ency. Law (2 Ed.), 712.

— Hon. J. L.Fort, Judge. (1) The trial court committed reversible error in holding that the circuit court of Stoddard' county was deprived' of jurisdiction and… Held: by the court, to be adverse possession; a title thus acquired by such notorious acts of ownership has been held sufficient by this court to maintain trespass or forcible entry and detainer, and support actions of ejectment, and, in short, to defeat the claim of the party holding the paper title to such land.

— Hon. J. L. Fort, Judge. The trial court erred in hearing testimony on the respondent’s objection to the introduction of the sheriff’s deed before the appellant had closed its testimony. This practice is confusing and has been criticised by this court. Wheeler v. Reynolds Land Co., 193 Mo. 288.

— Hon. J. L. Fort, Judge. The judgment in this case is not responsive to the pleadings. This constitutes reversible error. A judgment must be based on, and in conformity with, the pleadings and facts proven. It is limited by them. The answer in this case contains no prayer for the vesting of the title in defendants; the judgment rendered does so and thereby exceeds the limits made by the pleadings.

— No». Win. C. Ellison, Judge. (1) The trust declared on is an express trust and must be proved by writing. Hillman v. Allen, 145 Mo. 638. (2) A resulting trust must be coeval with the making of the deeds. Niver v. Crane, 98 N. T. 40. (3) And must be proved beyond a reasonable doubt. Stnith v. Smith, 201 Mo. 547. (4) No trust will result for the person who advances the money as a loan. 1 Leading Cas. in Eq. (4 Am. Ed.), p. 323.

— Hon. John T. Moore, Judge. An execution from a justice court returned on the eighty-ninth day is premature. The right to a transcript execution depends on the justice’s execution and a nulla bona return at the expiration of ninety days. Huhn v. Long, 122 Mo. 605. “Not satisfied” (“I hereby certify that I served within execution”) are not synonymous with nulla bona, and does not answer the requirements of the statute, Sec. 6287, R. S. 1889, Sec. 4019, R. S. 1899.

— Ho». Wm. C. Ellison, Judge. (1) The court erred in making a finding and rendering a decree against all of the defendants, four of whom had not been served with summons or had other legal notice and not appearing in the action. Holt County v. Harmon, 59 Mo. 165; Jasper County v. Wadlow, 82 Mo. 172.

— Hon. W. B. Teasdale, Judge. (1) It was error not to assess a portion of the cost of the work of constructing the sewers in question against the land of the Kansas City Belt Railway Company lying within the sewer district. Heman Construction Co. v. Railroad, 206 Mo. 172. (2) The above constituted a failure of the board of public works to make an apportionment of the cost of the work as required by the charter of Kansas City, and the taxbills are therefore void.

Charles Circuit Court. — Hon. Jas. D. Barnett, Judge. (1) In order that a deed may operate to convey an after-acquired title by inurement, it must purport to convey an indefeasible estate in fee simple absolute. Bogy v. Shoab, 13 Mo. 380; Valle v. Clemens, 18 Mo. 486; Eector v. Waugh, 17 Mo. 27; Gibson v. Chouteau,. 39 Mo. 566; Brawford v. Wolfe, 103 Mo. 391; Ford v. Unity Church Society, 120 Mo. 508; Wilson v. Fisher, 172 Mo. 10; Devlin on Deeds (2 Ed.), sec. 947.

— Eon. Jos. J. Willianns, Judge. (1) The court erred in ruling that the court rendering the judgment had no jurisdiction to render to same. (2) The court erred in setting aside the deed made by the sheriff of Reynolds county to W. S. Worley, and the. quitclaim deed from the latter to appellants.

— Hon. Henry C. Riley, Judge. (1) The court erred in permitting plaintiff to amend his petition after the jury had been empanelled, and the petition read. No notice of the intention to amend had previously been given defendant of his intention to amend, and the amendment changed the cause of action after the trial began, and in a material matter. , Pruett v. Warren, 71 Mo. App. 84; Purdy v. Pfaff, 104 Mo. App. 331; Riley v. Railroad, 124 Mo.

— Hon. Henry C. Riley, Judge. The order of sale, not having been renewed from term to term as required by law, was absolutely void, and conferred no authority upon the sheriff to make the sale. G. S. 1865, sec. 32, chap. 152; Hughs v. Hughs, 72 Mo. 136; Carson v. Hughes, 90 Mo. 173. (1) The cases cited by appellant are not in point.

— Eon. Wm. G. Ellison, Judge. (1) The alleged deed of March 7, 1895, from James M. Partridge and Elizabeth, his wife, to Agnes Smith, purporting to convey all their undivided shares in the eighty acres of land situate in section 33, township 64, range 34, was absolutely void, and should not have been admitted in testimony. Mudd v. Dillon, 166 Mo. 110; Dixon v. Finnegan, 182 Mo. 111.

— -Hon. Hugh Dabbs, Judge. (1) Maintenance is unlawful under the law of Missouri. Duke v. Harper, 66 Mo. 51; Breeden v. Ins. Co., 110 Mo. App. 312; Phelps v; Manecke, 119 Mo. App. 139. (2) A civil action for damages resulting from maintenance will lie at common law. Breeden v. Ins. Co., 110 Mo. App. 312; 5 Am. and Eng. Eney. Law (2 Ed.), 821; Harris v. Brisco, 17 Q. B. Div. 511; Wallis v. Portland, 3 Ves.

— Hon. John G. Park, Judge. (1) The court erred in refusing to sustain the demurrer offered by defendant, at the conclusion of plaintiff’s evidence, and the peremptory request at the conclusion of the whole case. 2 Fetter, Carr. Passengers, sec. 480-; Nellis, Street Surface Railroads, p. 519 ; Spencer v. Railroad, 17 Am. and Eng. R. R. Cases (N. S.) 166; Hite v. Railroad, 130' Mo. 140; Roscoe v. Railroad, 202 Mo. 576.

- — Hon. John G. Park, Judge. (1) This court has a superintending power over inferior courts and the final responsibility to see that justice is properly administered rests here, but this court should never interfere except “when the verdict and judgment are manifestly wrong, or shock a judicial sense of right.” Taylor v. Railroad,. 185 Mo. 260. It is primarily the duty of the jury to fix the amount of damages in this case. There is and can be no scale of measurement.

Mandamus. (1) The refusal of the trial court to pass upon the demurrer was a refusal to exercise jurisdiction conferred upon it by law, which it is compellable to exercise. If the demurrer was a proper pleading, this relator had a clear legal right to file it, and the refusal of the trial court to consider it was a refusal to exercise jurisdiction. Under these facts mandamus is the proper remedy.

Louis City Circuit Court. — -How. Warwick Hough, Judge. (1) The grant of the right of way in this case was to the Fourth Street and Arsenal Railway Company, and to no one else. (2) Under the general law of this country, such grants made to a corporation are not assignable without express statutory authority. Such grants are to be strictly construed. Snell v. Chicago, 152 U. S. 199; 26 Am. and Eng. Ency.

<p>Transferred from St. Louis Court of Appeals.</p>

— Hon. Wm. H. Martin, Judge. (1) The court erred in striking out that part of appellant’s answer setting up want of authority and non-compliance with the statutory requisites in the execution of the… Held: as the statute expressly states, that such acts are null and void and without any force or validity whatever. Hume v. Eagon, 83 Mo. App. 576. The same conclusion is reached in Vansandt v. Hobbs, 84 Mo. App. 628; Powers v. Wool-folk, 3 8. W. 1187.

— Eon. Chas. D.. Stewart, Judge. (1) The court erred in admitting the opinions or conclusions of certain witnesses that the mine in question was dangerous. Miller v. Canton, 112 Mo. App. 322; Spaulding v. Edina, 112 Mo. App. 69; Morgan v. Hager & Sons Mfg. Co., 120 Mo. App. 609; Hurst v. Railroad, 163 Mo. 320; Keyes-Marshall L. Co. v. Railroad, 105 Mo. App. 560.

<p>1.ELECTIONS: Opening Ballot Boxes: Frauds at Primary Election: Criminal Prosecution: Under Act of 1903. If the general primary election of August 4, 1908, was held under the regulation and protection of the laws of this State, there was and is no authority for the opening of the ballot boxes or the inspection of the ballots, in aid of the prosecution of primary election judges of St. Louis for making false and fraudulent returns, except such as might be derived from section 40 of the Act of March 28, 1903, creating a board of commissioners in said city; and if no charge is pending involving an offense under the said Act of 1903, said section 40 affords no authority for an order of court to open the ballot boxes and expose the ballots.</p> <p>2. -: -: -: -: Under Sec. 2116, R. S. 1899. If the general primary election conducted under the General Primary Election Law of March 18, 1907, was not an “election authorized by law,” then Sec. 2116, R. S. 1899, has by its very terms no application to said primary, and an information charging judges of election with feloniously making a false return of the ballots cast at said primary election charged no offense against the laws of this State, and no court having jurisdiction of criminal causes had or has power or authority to order the production of the ballot boxes or to reguire the ballots cast at said primary to be produced as evidence.</p> <p>3. -: -: Constitutional Meaning of “Election:” Primary Law Applicable to All Elections. Even though it be conceded that the word “election” as used in the Constitution does not apply to primary elections for the purpose of nominating party candidates for public office, the Legislature had power, as it did, to provide that the statutes in force in relation to holding elections, counting the ballots, making returns thereof and other kindred subjects should apply to all primary elections held under the General Primary Act of March 18, 1907; and when it did that it provided for the secrecy of the ballot just as the Constitution had already provided for other elections; and Sec. 2116, R. S. 1899, is applicable to frauds by judges and clerks of a primary election, and when they are prosecuted under that section no court has authority to open the ballot boxes and inspect the'ballots in aid of the prosecution.</p> <p>4. -: -: For What Purposes. The Constitution permits ballot boxes to be opened and ballots to be inspected only in cases of contested elections; and if it is desired to open the boxes or inspect the ballots in aid of a prosecution for frauds committed by election judges and clerks in making false and fraudulent returns, it can be done only by amending the Constitution itself.</p>

Louis County Circuit Court. — Hon. Jno. W. McElhinney, Judge.

- — Hon. Louis Hoffman, Judge. (1) The courts refrain from interference with school regulations not oppressive or arbitrary and which are needful for the moral and physical health of the pupils. King v. School Board, 71 Mo. 628 ; Deskins v. G-ose, 85 Mo. 485; Dritt v. Snodgrass, 66 Mo. 286. (2) If smallpox is prevalent, as shown in this record, then even without express statutory authority, vaccination may he required as a condition precedent to the right to attend school.

— Eon. Thos. J. Seehorn, Special Judge. (1) Defendant contends that the court had no jurisdiction of the subject-matter or over the person of defendant, and had no power or authority to render the judgment. 1. The conditions of the note conferred no authority on C. E. Denham to enter the appearance of the defendant and confess judgment. 2. Said confession of judgment does not comply with the requirements of the laws of Missouri. 3.