Volume 221 — Missouri Reports

Louis City Circuit Court — Hon. Bobt. M. Foster, Judge. Plaintiff was an assistant officer,, removable, either first, by the officer under whom he worked, at his pleasure, or secondly, by the mayor, for cause, i. e., after notice, charges, specifications and a formal trial. St. Louis Charter, art. 4, sec. 14 (2 R. S. 1899, p. 2492).

Hugh Dabbs, Judge. (1) Injunction is the proper remedy in this case, upon the pleadings and evidence set out in the record. Kamp v. Schrader, 45 Mo. 505; Lytle v. James, 98 Mo. App. 337; Jack Harvard Co. v. Continental Zinc Co., 106 Mo. App'. 66'.

Louis City Circuit Court. — lion. C. Or rick Bishop, Judge. (1) Before a court is authorized to sustain a demurrer to the evidence because of its insufficiency, it must appear that, admitting all the evidence introduced by plaintiff to be absolutely true and giving' him the benefit of every reasonable inference to be deduced therefrom, he is not entitled to recover; and in applying this rule to the facts proven by plaintiff, it must be remembered that negligence is not a…

— Eon. Jas. T. Neville, Judge. (1) The tax proceedings having been regular, and against the record owner of the land, the tax sale would have been valid even if all the taxes had been paid. Jones v. Driskell, 94 Mo. 190; Hill v. Sherwood, 96 Mo. 125; State ex rel. v. Boyd, 128 Mo. 130. (2) The purchaser at the tax sale under a judgment against the record owner acquires title against the holder of an unrecorded deed. Payne v. Lott, 90 Mo. 676; Vance v. Corrigan, 78 Mo. 94.

<p>1. ELEVATED RAILWAY: Obstruction to Light, Air and Access: Damages. The owner of real property abutting on a public street has an easement therein of light, air and access by means of said street; and that easement is property of which he cannot be deprived without just compensation. And the owner is entitled to recover all damages done to his abutting property by the interference with those easements by the construction of an elevated railway in the street and the operation of cars thereon.</p> <p>2. -: -: Prima-Facie Case for Plaintiff. Evidence that plantiffs are the owners of the property described in the petition; that it abuts on the street in which defendants had constructed and are operating an elevated street railway; that such construction and operation materially deprived the abutting property of light, air and access thereto, to their great damage, makes out a clear case for plaintiffs and the court should submit the issues to the jury.</p> <p>3. -: -: Measure of Damages: Contradictory Instructions: Construction: Maintenance and Operation. Plaintiffs’ instructions told the jury that the measure of damages resulting from the construction and operation of an elevated railway in the public street in front of their property, was the difference in the market value of the property “immediately before the construction, maintenance and operation” of the elevated railway “and immediately after the same was constructed and used for street railway purposes”; and defendant’s instruction told them that “if the market value of the property immediately after the building and operation of the street railway was equal to or greater than it was immediately before said railway was built, then plaintiff cannot recover in this suit.” Held, that the meaning of the two instructions is substantially the same and they are not in conflict. While plaintiffs’ instruction uses the word “maintenance,” and defendant’s does not, it must be held that the jury understood from both that they were to take into consideration the damage resulting not only from the construction of the elevated structure, but also the damage resulting from the continued operation of cars thereon. If either instruction properly declared the law, both did. But if both were erroneous, plaintiff, having invited the error, cannot complain.</p> <p>4'. -: -: -: Evidence: Rental Value of Other Property. It was error to permit a witness in direct examination to testify for defendant that the rental value of certain pieces of his property in the vicinity had increased since the construction and operation of the elevated street railway. Such testimony injects into the case a collateral and immaterial issue, can throw no light on the question of the abutting property-owner’s peculiar damages, and is calculated to confuse and mislead the jury.</p> <p>5. -: -: -: -: -: Waiver: Cross-Examination. Nor did plaintiff waive the court’s error in admitting that testimony by cross-examining the witness about the increase of his rents on his own property; nor can the court’s action in admitting it be justified by the fact that previously, when defendant on cross-examination of a witness for plaintiffs brought out that character of evidence, plaintiff on redirect examination briefly questioned the witness regarding the matter.</p> <p>6. -:■ --: -: Enhanced Value on Other Streets: General Benefits. It was error to admit testimony showing that the construction and operation of the elevated street railway enhanced the value of properties abutting on other streets of the city. The inquiry should be limited to the specific damages and benefits which resulted to the property alleged by the petition to have been damaged; and the general benefits it received in common with other property in the vicinity should not be gone into.</p> <p>7. -: -: -: -: Opinion That Property Was Damaged. An expert on real estate values was asked by plaintiff: “In your judgment, did the elevated street railway benefit or damage plaintiff’s property” abutting on the street? Answering, he stated that in his judgment it damaged it from $15,000 to $20,000. At the request of defendant the court struck out the answer. Held, error. The testimony was competent, material and relevant.</p>

— Hon. J. L. Fort, Judge. (1) The abstract of the record was not served by appellant within the time provided by law and the rules of this court. E. S. 1899, sec. 813; Eule 11. (2) The abstract filed by the appellant is not such as is contemplated and required by the statutes and the .rule of court referred to above. Hill v. Butler County, 195 Mo. 511; Yandeventer v. Gross, 190 Mo. 239; Everett v. Butler, 192 Mo. 564.

— Hon. W. B. Teasdale, Judge. The relief that Sallie M. Thayer is asking for in her petition is that the court leave the Sponables in the position that J. W. Sponable placed them, that is, that as he colluded and agreed with Thayer that this money should be taken out of the bank and appropriated by them in the manner shown in evidence, his sons, Fred T. and Frank, should not be paid a second time for such wrongful appropriation.

— Hon. L. B. Woodside, Judge. (1) The note in suit, being dated June 2, 1884, and being due five years after date, did not mature .until June 2, 1889, and was not barred by limitation until June 2,1899, and the plaintiff could1 institute suit to foreclose the mortgage or deed of trust securing the note at any time within twenty years after the maturity of thefnote, and this suit being filed the 16th day of June, 1904, plaintiff’s cause of action was not barred by limitation.

<p>1. APPELLATE JURISDICTION: Trespass. In cases of pure trespass upon land, title to real estate is not so involved as to confer jurisdiction upon the Supreme Court over an appeal from a judgment of a circuit court refusing to enjoin the trespass, although the title may be incidentally involved and must be shown in the course of the trial.</p> <p>3. -: --: To Enjoin the Opening of a Road. Where plaintiff in his bill for an injunction alleges that he is the owner of a certain nine-acre lot and seeks to enjoin the road overseer and the judges of the county court from opening up a public road or street twenty feet wide into the lot, on the ground that there had been no petition for the road, no plat filed, etc., and defendants answer that plaintiff was formerly the owner of the lot and dedicated the strip to public use by filing a plat of said lot, showing its division into blocks, lots, streets and alleys, and by selling lots in reference to said plat, and alleging the title to be in the county as trustee, title is incidentally involved, but the real purpose of the ' suit is to restrain a threatened trespass, and hence the Supreme Court does not have jurisdiction over the appeal from the judgment dissolving the injunction.</p> <p>3. -: -: County as Party. Where the suit is against the road overseer and the judges of the county court, to enjoin them from committing a threatened trespass upon private property by opening up a road thereon without complying with the statutes, the county is not a party, nor are the road overseer and county judges State officers, and the Supreme Court does not have jurisdiction over the appeal.</p>

<p>1. APPELLATE JURISDICTION: Revenue Law: Preservation of Fund. Under the provisions of the Constitution giving the Supreme Court jurisdiction of the appeal in a case involving “a construction of the revenue laws of this State,” the term “revenue laws” covers and includes laws relating to the disbursement of the revenue and its preservation, as well as provisions relating to the assessment, levy and collection of it.</p> <p>2. -: -: Where Found. In determining the appellate jurisdiction of the court it is of no importance whether the “revenue law” upon which jurisdiction depends is found in the chapter on “Revenue” or the one on “Counties” or the one on “Roads and Highways.” It makes no difference where it is found if it is a “revenue law” within the meaning of the Constitution.</p> <p>3, -: -: County Depositaries. The Supreme Court has jurisdiction over an appeal in a case involving a construction of the laws prescribing the duties of the county court in selecting a depositary of the county funds.</p> <p>4. APPEAL: No Exceptions: County Depositary: No Advertisement for Bids. Interlocutory motions or motions for a new trial can be preserved for review only in a bill of exceptions; and if no such bill is preserved in the abstract, and the record proper is free from error, the Supreme Court will not reverse the judgment of the trial court quashing the record of the county court for that, in selecting a county depositary, the court had not advertised for bids, as the law (Sec. 6817, R. S. 1899) requires.</p>

'Appeal from St. Louis County Circuit Court. — Eon. Jno. W. McElhinney, Judge.. (1) Appellant’s demurrer to respondent’s petition, based on the ground that tbe petition does not state facts sufficient to constitute a cause of action, should have been sustained. (2) Tbe facts set out in tbe petition show that tbe board conformed to tbe statute under wbicb it proceeded.

<p>Appeal from St. Louis County Circuit Court. — Hon. Jno. W. McElhinney, Judge.</p>

<p>1. APPELLATE JURISDICTION: Construing Statute of Another State: Federal Question. The mere construction of a statute of another State, though it he erroneous, does not deny its validity; and if the most appellant contends for is that the trial court misconstrued the statute of a sister State, upon which he based his cause of action, no Federal question is involved, and the Supreme Court does not, on that account, have jurisdiction of the appeal.</p> <p>2. -: -: -: Full Faith and Credit, Etc.: Penal Statute. By the statute of Colorado all mining corporations were required to file a report within sixty days after the first day of January of their operations the preceding year, and failing to file such report all the officers and directors became individually liable for all the debts of the corporation; and defendants, being officers and directors of a mining corporation in Colorado, did not file such a report and the company being indebted to plaintiff in the sum of $521.88 he filed suit in this State against them, basing the suit on the said statute. The trial court held the statute to be a penal one, and sustained a demurrer to the petition, and plaintiff appeals, contending the court did not give full faith and credit to the Colorado statute, as required by the U. S. Constitution (Sec. 1, art. 4), which says that “full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State,” etc. Held, that the jurisdiction of. the court is not dependent upon a correct construction of the statute, and no Federal question is involved, and the appeal is not to the Supreme Court.</p> <p>S. ——: -: -: -: Penal Statute Not Enforcible: Comity. The courts of no State enforce the penal laws of another. Comity is never carried to the extent of enforcing a foreign law that is contrary to the policy of the State in which its enforcement is asked, nor does it extend to the enforcement of a penal statute of another State; and when a court is called upon to enforce the statute of another State, full faith and credit do not compel it to enforce it in this State, but it has the right to construe it to be a penal statute, and if found to be such to refuse to enforce it.</p> <p>4. -: -: -: -: -: Public Acts. Besides, it is questionable whether the words “public acts,” used in the clause of the TT. S. Constitution requiring each State to give full faith and credit to the public acts of another State, include the statutes of such other State.</p> <p>5. -: -: -: -: -: Judgments. There is a wide difference between a suit to enforce a liability founded on the statute law of another State and a suit founded on a duly certified judgment rendered by a court of competent jurisdiction in such other State, even though the judgment was based on the same statute.</p> <p>G. -: -: -: -: -: Lex Loci Contractus. Likewise there is a wide difference between a suit to enforce a liability founded on a penal statute of another State and a suit brought 'in a court in this State on a contract made m another State and designed to be performed there. In the latter case the courts interpret the contract according to the law of that State, although it may differ from the law of this .State; but this they do in respect to “the settled rules of public and international law” which require courts to interpret the contract according to the He* loci contractus, and not in obedience to the full-faith-and-credit clause of the U. S. Constitution.</p>

— Hon. Howard Gray, Judge. (1) Regardless of the correctness of the holding of the trial court on the invalidity of the garnishment statute, the effect of that holding may be to submit the defendant to a liability in such proceeding, either in that court, or on appeal, and under the holding in How-land v. Railroad, 134 Mo. 474, the judgment in this case, whether for the wages admitted to be due, or for double such wages, ought to be conditional and not effective until…

— Ron. Nat. M. Shelton, Judge. (1) The common law of England is in force in this State. Sec. 976, R. S. 1899. (2) At the common law, upon the dissolution of a corporation, its real property reverts to the grantor. Knight v. Wells, 1 Lutwitche 519 ; Atty-Genl. v. Lord Gower, 9 Mod. Rep. 226; Prior of Spalding’s Case, 7 Edw.

' Louis City Circuit Court. — Hon. Daniel G. Taylor, Judge. Plaintiff’s appeal in this cause should be dismissed and the trial court’s action affirmed, for the following reasons: (a) Because the pleadings are not set out in the abstract, and because they are necessary to a review of a trial court’s act in sustaining defendant’s demurrer to the evidence, (b) Because the purported abstract fails to show that there was any verdict or judgment entered of record, or the amount of…

Louis City Circuit Court. — Roto. Selden P. Spencer, Judge. (1) Instruction 4 given by the court at the instance of defendant was erroneous. (2) Instruction 5 given by the court at the instance of defendant was erroneous. Coffey v. City of Carthage, 186 Mo. 583. (3) Instruction 1 given by the court at the instance of defendant was erroneous. (4) The refusal of instruction 3 asked by plaintiff was erroneous.

Prohibition. (1) The suit instituted by Circuit Attorney Jones in St. Louis is a mere subterfuge and a disguise for an attempt to defeat the decrees of the United States Court at Kansas City and to prevent the plaintiffs in those suits from realizing any benefit or advantage thereunder. The suit of State ex rel.

— Hon. A. D. Burnes, Judge. (1) In so far as article 4, chapter 59, Eevised Statutes 1899, attempts to confer jurisdiction on the court to try, decree or determine title to real estate, it is void as violating section 28, article 4, Constitution of Missouri, 1875. In re Goode, 3 Mo. App. 226; State v. Great Western Coffee and Tea Co., 171 Mo. 634.

Louis City Circuit Court. — Hon. Matt. G. Reynolds, Judge. (1) The court erred in admitting in evidence the deposition of defendant, because defendant was in court in person and the deposition contained no admission which tended to sustain the allegations of the bill. (2) The court erred in excluding the testimony offered as to the reputation of defendants Simon and Marcus Epstein, who were charged with having committed an actual, not a constructive fraud.

— Hon. W. B. Teasdale, Judge. (1) The action of the trial court in setting aside the sale as fraudulent was correct, and no complaint is or can he made with reference to that part of the decree. 28 Am. and Eng. Ency.

— Eon.. A. F. Evans, Judge. (1) The finding upon counts one and two should have been in favor of plaintiff. 1. Moore absolutely disregarded the terms of the letter transmitting the pledged notes, which letter constitutes the contract of pledge and which provides that the pledge of the notes should be only temporary and that the notes should be held only until foreclosure could be made, title taken in Nevius’ name and deed of trust given by him.

—Hon. John A. Snider, Judge. (1) The evidence tends to show that Robert W. Renfroe, who lived about one-quarter of a mile from the premises, controlled the property and collected rents; that after his death his widow, Cordelia Renfroe, did so until her marriage to Jasper N. Dudley, and that thereafter he had charge for his wife and two stepchildren, Early Renfroe and Nora Renfroe, but the evidence utterly fails to disclose an unfriendly or adverse holding as against the…

— Hon. John T. Moore, Judge. (1) Jurisdiction of the person of a defendant can only he required by a strict compliance with the statute. Parker v. Burton, 172 Mo'. 85; Kelly v. Murdock, 184 Mo. 377. (2) Defendant Moses was proceeded against as a resident, and the order of publication was not based upon a finding of the court, but a finding of the clerk, in vacation.

— Hon. G. W. Goad, Special Judge. (1) When the question as to the sufficiency of the petition upon demurrer was determined by this court, the principles of law applicable to such transactions were clearly declared in the opinion, and our contention is that the evidence in this cause falls far short of bringing it within the principles so declared as to entitle plaintiffs to the relief demanded.

Louis City Circuit Court. — Mon. Wm. M. Kinsey, Judge. The instruction authorizing the conviction of defendant of the offense of attempted sodomy was not warranted by the evidence and the verdict finding him guilty of attempted sodomy was contrary to the evidence and not responsive to the issues under the evidence. A careful analysis of the evidence will disclose that whatever proof was made under the information tended to show that the completed offense had been perpetrated.

Louis City Circuit Court. — Hon. Moses N. Sale, Judge. (1) The information, which was duly verified, is sufficient in form and substance. Sherwood’s Crim. Law, p. 34; Kelley’s Crim. Law (2 Ed.), sec. 474; State v. Bradford, 156 Mo. 95; State v. McGinnis, 158 Mo. 116. (2) The arraignment, verdict and the sentence and judgment are shown by the record proper.

<p>Appeal from St. Louis City Circuit Court. — Hon. D. D. Fisher, Judge.</p> <p>(1) Defendant’s plea in abatement should have been sustained. U. S. v. Edgerton, 80 Fed. 374; Boyd v. U. S., 116 IT. S. 639; State v. Frosetb, 16 Minn. 296; Sbarpe Case, 107 N. Y. 477; People v. Haines, 107 N. Y. Supp. 54; People v. Selliek, 4 N. Y. Crim. Eep. 329; People v. Lauder, 82 Micb. 109 ; Boone v. People, 148 111. 440; State v. Duncan, 4 L. E. A. (IT. S.) 1144. "What of law, of justice, of Constitution, exists in ■ this State if such procedure is permitted to páss without rebuke, censure and condemnation? No country governed by any settled laws, or wherein its citizens are treated with common humanity, could furnish any occurrence of such unparalleled abuse of power. The poorest wretch who crawls on British soil would have in the administration of the law an adamantine shield which would protect him against such a wicked, nefarious and outrageous assault upon his constitutional right; and no officer would dare violate a sacred constitutional right without being visited with swift, severe and condign punishment. The government that would submissively tolerate such an inquisition and forego a direct assault on its Constitution without rebuke, condemnation and censure, would be a disgra.ce to humanity and civilization. Nowhere under the flag of monarchial England would such procedure be possible. The official daring to usurp such powers would be driven from office in disgrace. (2) The court should have instructed the jury that under the pleadings and proof defendant was not guilty of the offense charged in the indictment. There is no evidence in the case that defendant knew or could have known that Ascher had made a corrupt agreement with Warner and that as a part of the agreement be paid Priesmeyer five hundred dollars. There is not a word of evidence that he knew that Priesmeyer received $500- from Ascher, and there is no evidence tending to prove that he received $500 from either Priesmeyer or Warner, but on the contrary the only affirmative evidence on that subject offered by the State is to the effect that neither Warner nor Priesmeyer gave him $500 on the night of October 18, 1907. It would have been impossible for bim to have known that either Warner or Priesmeyer, on October 19', 1907, was guilty of a felony. Can it be contended that because defendant refused to testify before the grand jury he aided Priesmeyer or Warner to avoid arrest, trial, conviction or punishment? The record shows that defendant’s conviction is without evidence and that he was without evidence indicted •and convicted because he saw fit to exercise a guaranteed constitutional right.</p> <p>(1) The plea does not allege that defendant’s evidence was the only evidence before the jury, or that the indictment was based in part upon his evidence, or that the jury was influenced in returning the indictment by any such evidence, or that he testified to any material fact to the case of the prosecution, or that his substantial rights were thereby prejudiced. On the contrary, the plea discloses upon its face that he did not testify to any material fact, but instead refused to testify in most instances, and in this was sustained by the court. The questions to which he did make reply,'according to the plea, were answered in such a way as to furnish no evidence against him, hut if anything, it was in his favor, and it will not be presumed that the grand jury in disregard of its duty allowed themselves to he influenced to his prejudice, (a) The indictment, which must he considered in determining the sufficiency of the plea, was returned in the usual manner of presenting indictments, with the names of competent witnesses indorsed thereon, defendant’s name not appearing on it, and the presumption must he indulged that the indictment was found on competent evidence and in the manner pointed out by law, and this presumption is sufficient to support the regularity of the indictment when it is not, as in this case, rebutted by either the plea or evidence. People v. Hayes, 28 N. Y. (Misc.) 94; State v. Hawks, 56 Minn. 138; State v. Lauder, 82 Mich. 113; Hope v. People, 83 N. Y. 418; Jones v. State, 81 Ala. 79; State v. Grady, 84 Mo. 223; State v. Faulkner, 185 Mo. 696. -(b) If by tbe plea defendant means to assign as cause the violation of his constitutional rights as to being compelled to testify against himself, his plea falls far short of the requirements in both form and substance, and the disclosures of the record do not support the contention. The constitutional guaranty is, not that no person shall be subpoenaed or sworn as a witness in an investigation of his own conduct, but it is that he shall not be compelled to testify — that is, give criminating evidence against himself. It is not an invasion of his constitutional rights to subpoena him, to require him to appear and be sworn, nor to testify upon any matter that would not criminate him, or would not be against himself. This much the law demands of every person, (c) In his plea defendant alleges the general conclusion that he was compelled, not to testify against or criminate himself, but to testify. This might be true, and still his constitutional rights have not been infringed, and the facts set out in the plea disclose the same condition. After he appears, either .voluntarily or in obedience to a subpoena, and is sworn, his constitutional guaranty is then available. He may decline to testify, or like any other personal privilege, he may voluntarily waive it. If he asserts his privilege, “how could there be compulsion or legal restraint when there is no law' which could compel him to testify against himself, or punish him for refusing to testify?” Within legal contemplation it is impossible for one to be compelled to testify against himself. The plea discloses that defendant exercised his right and refused to testify against himself, and in this was sustained by the court. The questions which he did answer, according to the plea, did not furnish testimony against himself,' or in any manner tend to criminate him on the charge contained in the indictment. Even if he had given such testimony, he voluntarily answered these questions after knowing his rights, and after successfully asserting them on other inquiries, and the court can now but assume that1 he was not only willing, but desirous to answer. Having thus waived his right, it is too late to complain. State v. Douglas, 1 Mo. 528; People v. King, 28 Cal. 265; State v. Faulkner, 185 Mo. 694;. State v. Lander, 82 Mich. 119; State v. Lynn, 169' Mo. 671. (d) From- the questions asked defendant by the grand jury and the evidence adduced on trial, it is evident that the grand jury, while investigating the bribery of Warner and Priesmeyer, first traced the marked money to the hands of defendant, and it was certainly competent and proper to call him to ascertain, if possible, where, when and from whom, and under' what circumstances this bribe money came into his possession, they indulging the legal presumption that his connection therewith was innocent. There was no more impropriety in this action than in subpoenaing witness, Wiseman, who received the money from defendant, and who deposited it in the bank. All this was necessary to complete their investigation, and for them to have done less would have been censurable. Wharton, Criminal Pleading and Practice (9 Ed.), p. 36, eh. 4; 1 Chitty, Criminal Law, 318; Ward v. State, 2 Mo. 121; State v. Faulkner, 175 Mo. 570; State v. Lehman, 175 Mo. 627; State v. Hawks, 56 Minn. 139; State v. Turley, 153 Ind. 345. (2) ' The indictment charges with certainty and particularity all the elements and facts necessary to constitute the crime of accessory after the fact to bribery, and fully informs the defendant of the exact nature and cause of the accusation against him. State v. Miller, 182 Mo. 373; State v. Williams, 136 Mo. 294; State v. Schnettler, 181 Mo. 187; State v. Lehman, 182 Mo. 445. (3) The evidence is amply sufficient to support the -verdict of guilty. It shows that defendant had knowledge of the bribery, and with such knowledge received the money and endeavored to secrete it in an effort to aid the principal offenders. His conduct is inconsistent with any other rational theory, and must be attributed to a consciousness of guilt. State v. Miller, 182 Mo. 386; State v. Kosky, 191 Mo. 16; State v. Guild, 149 Mo. 377; State v. Richmond, 186 Mo. 82; State v. Wigger, 196 Mo. 97.</p>

Louis City Circuit Court. — lion. Moses N. Sale, Judge. (1) The evidence against appellant was unworthy of belief and was not sufficient to overcome the presumption of his innocence, consequently the demurrers to the evidence interposed on his behalf should have been sustained. State v. Burgdorf, 53 Mo. 65; State v. Shelly, 166 Mo. 618; State v. Hahn, 189' Mo. 241.

Louis Court of Criminal Correction. —Eon. Wilson A. Taylor, Judge. At the very outset we wish to call the attention of the court to the question of jurisdiction in this cause. Sec. 2220, R. S. 1899, under which this prosecution is had, makes the offense charged a misdemeanor only. There is nothing before this court but the record proper, and nothing to show that0a constitutional question was raised in the lower court to give this court jurisdiction.

— Hon. L. B. Woodside, Judge. '(1) The State failed to show that prosecutrix was unmarried. This is fatal. This is one of the essential elements of this offense, made so by statute, without proof of which a conviction cannot stand. State v. Wheeler, 108 Mo. 663; 25 Am and Eng. Ency. Law, 235; Hughes, Crim. Law, sec. 2123; West v. State, 1 Wis. 209; 2 McClain’s Crim. Law, sec. 1113.

— Hon. L. B. Wood-side, Judge. The necessity of compliance with the common law requirements as to swearing the jury was recognized in State v. Schoenwald, 31 Mo. 159; State v. Tern-pie, 194 Mo. 241. If the oath is required by the constitutional guaranty referred to, and is a necessary prerequisite to the incorporation of the jury into and as a part of the trial machinery, then a verdict by an unsworn jury would seem to be a nullity, and cases so holding are not lacking.

— Hon. Win. G. Ellison, Judge. (1) The trial court erred in compelling defendant to go to trial without his witness, Elsey Baker, or his testimony, by deposition. Said application showed due diligence on part of defendant, and that the absent witness was located, and a good probability of procuring his testimony, by deposition, at the next term of the court.

— Hon. Francis II. Trimble, Judge. (1) Defendant’s motion for his discharge should have been sustained, for the reason that the court was without jurisdiction to try him on the indictment herein.

Transferred from St. Louis Court of Appeals. (1) (a) The statute fully individuates the offense and an indictment substantially following its language is sufficient. R. S. 1899, sec. 2179; Laws 1905, sec. 300-9, p. 141; State v. Heibel, 116 Mo. App. 43; State v. Harroun, 199 Mo. 525.

— lion. A. W. Lincoln, Special Judge. (1) There is nothing in the record to identify the so-called hill of exceptions, and the matters which pertain to the record proper and those which should only he embraced in the bill of exceptions preserving the .exceptions to the action of the court during the progress of the trial are so confounded that it is impossible to tell where the bill of exceptions begins or end's. There are no record entries showing the filing of a motion for…

.Appeal from Greene Criminal Court. — lion. A. W. Lincoln, Judge. Practically every element of the offense was either •admitted by defendant while testifying in her own behalf, or was proved by the record of her pleas of guilty to charges lodged against her in the police court in the city of Springfield. The proof on every phase of the case was plenary.

Louis City Circuit Court. — Eon. Hugo Muench, Judge. (1) The court erred in not permitting defendant, on cross-examination of Ida Bunting, to ask her questions regarding her testimony before the grand jury, for the purpose of impeachment. R. S. 1899, sec. 2508; State v. Thomas, 99 Mo. 235; State v. Whelehon, 102 Mo. 17; Little v. Com., 25 G-ratt.

— Hon. J. L. Fort, Judge. Tbe trial court cannot extend tbe time granted a party to file his bill of exceptions after it has expired. State v. Scbucbman, 133 Mo. 115; O’Bannon v. Railroad, 10'6 Mo.

— Hon. Chas. A. Killian, Judge. (1) What purports to he the hill of exceptions in this cause does not contain the motions for a new trial or in arrest of judgment, nor any exceptions to the overruling of the same. There is nothing for this court to review, except the record proper, and the judgment should be affirmed. State v. Finley, 193 Mo. 202; State v. Penland, 199 Mo. 152; State v. Miller, 189 Mo. 673.

Appeal front St. Louis City Circuit Court. — Hon. Geo. H. Williams, Judge. (1) The information proceeds to allege that the said Leo Judd then and there unlawfully, feloniously, etc., did sign said registers and books of registration “in the margin on said books, provided for the signatures of registered electors and voters, under the same name Chas. Cohn, by writing on said books the words and name Chas.

— Hon. F. C. Johnston, Judge. (1) Upon the evidence of provocation by violence from deceased at the time and place of the shooting, defendant was clearly entitled to at least an instruction authorizing the finding of a verdict of manslaughter of the fourth degree. State v. Sebastian, 215 Mo. 58; State v. Darling, 199 Mo. 197; State v. Weakley, 178 Mo. 423.

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. (1) Defendant is a competent witness in his own behalf, subject to cross-examination as to matters referred to in his examination in chief, and subject to contradiction and impeachment as other witnesses. E. S. 1899, see. 2637.

<p>1. CONTEMPT: Commitment. The statutes require that when a citizen is committed to jail for a contempt the commitment itself must contain “the particular circumstances of his offense,” and the contempt must he plainly and specifically charged in the commitment.</p> <p>2. --: -: Refusal to Answer Questions. A recital in ■the order leading up to the adjudication of contempt that the witness was ashed “proper and'- legal questions,” that the court had ruled them to he such, and the witness was directed to answer them and refused, falls far short of specifically and plainly charging the contempt, as the statute requires. The particular questions which he refused to answer should be stated, not merely the court’s'conclusion that they were legal and proper. q</p> <p>3. -: -: -: Intendment. Contempt is a specific criminal offense, and, as in other criminal proceedings, nothing not recited in the adjudication will he inferred from the matter of inducement set out therein, nor will presumptions or intendments be indulged in in order to sustain a conviction.</p> <p>4. -: -: -: Conclusion: Disrespect of Court. It is not sufficient that the- adjudication of contempt recite that the witness “is hereby ordered and adjudged guilty of contempt of court in treating the court disrespectfully and he is hereby committed,” etc. That is a recital of a conclusion, not a finding and adjudication of the facts which constituted disrespectful conduct.</p>

— Hon. Henry C. Riley, Judge. (1) In all the deeds in defendant Hope’s chain of title, to-wit: the warranty deed from James E. to John R. McKee, dated August 19', 1874; the John R. McKee deed of trust dated November 15,1901, and the sheriff’s deed as trustee in said deed of trust, the grantors assumed to convey the whole title to the land, and as sole owners thereof; and each of these conveyances, in itself, operated as an ouster of plaintiffs and those through whom they…

— Eon. C. A. Mosman, Judge. (1) A suit for partition of real estate cannot he maintained where it appears that defendant is in the exclusive possession of all the land. In this case plaintiff expressly alleges that defendants are in the actual and exclusive possession of the land, and the cause must he reversed for that reason. Lambert v. Blumenthal, 26 Mo. 471; Haeussler v. Iron Co., 110 Mo. 188; Colvin v. Hauenstein, 110 Mo. 575 ; Sheperd v. Fisher, 206 Mo. 249.

— Eon. W. B. Teasdale, Judge. “In passing upon a demurrer to the evidence, the court is required to make every inference of fact in favor of the party offering the evidence, which a jury might, with any degree of propriety, make in his favor; and if, when viewed in this light, it is insufficient to support a verdict in his favor, the demurrer should be sustained.

— Hon. Henry M. Ramey, Judge. This court has no jurisdiction of these cases. Respondent Abler recovered, by the judgment of the circuit court, $182.55. The other respondents recovered each a smaller sum, so that, as to the amount involved in any one of these cases, no jurisdiction was conferred upon this court. Section 12 of article 6 of the Constitution confers jurisdiction upon the Court of Appeals in cases wherein the amount recovered does not exceed the sum of $4,500.00.

— Hon W. B. Teasdale, Judge. (1) If the Platt deed be construed to embrace the land in question, it must necessarily follow that two descriptions are embraced in the deed, and this constitutes a patent ambiguity, rendering the deed void, and parol evidence is not admissible to aid such description. Mudd v. Dillon, 166 Mo. 110; Carter v. Holman, 60 Mo. 498; Devlin on Deeds, sec. 1010.

— Hon. W. N. Evans, Judge. (1) A deed made by a grantor who has previously sold the same land by deed which has been recorded before the execution of such second deed, is an absolute nullity and conveys no title. This is A B C law and needs the citation of no authorities to support it.

— Eon. W. B. Teasdale, Judge. (1) Under the evidence plaintiff was not entitled to recover. The gate and floor was a simple, ordinary appliance, without any complication, plain to he seen and observed by any man. It was being used constantly and might be out of line at any time. Plaintiff knew its condition and was the man to know it. He had control of it. It was his duty to report it if it needed repairing and he was the man to know when it needed repairing.

Transferred from Kansas City Conrt of Appeals. (1) Although defendant in his individual capacity acquired the note in question after its maturity, yet he stands in the shoes of and has all the rights and benefits of a purchaser before maturity, because he is the transferee of a. purchaser-before maturity. Langsford v. Yarner, 65 Mo. App. 370; Bank v. Stanley, 46 Mo. App. 440; Griswold v. Buechle, 72 Mo. App. 53.