Volume 223 — Missouri Reports

Mandamus. (1) Section 9752, Revised Statutes 1899, contemplates only one vote and one loan for such buildings and furnishings as may be needed a.t one time in the judgment of the board of directors, (a) The statute says schoolhouses, not sehoolhouse.

— Hon. Francis H. Trimble, Judge. The court submitted the cause to the jury upon the first count of the information. Upon examination of the first count of the information, we find that the ownership of the goods and chattels were alleged to be and belong to “The Chicago, Burlington & Quincy Railway Company.” It is not alleged whether “The Chicago, Burlington and Quincy Railway Company” is a copartnership or a corporation. State v. Pollock, 105 Mo.

Louis City Circuit Court. — Hon. Geo. H. Williams, Judge. (1) The indictment is sound. In all hut the names used it is a rescript of that approved in the cases of State v. Gray, 172 Mo. 434; State v. McNamara, 212 Mo. 156. It is practically identical with the form of the indictments approved in the cases of State v. Evans, 158 Mo. 592; State v. Wilson, 172 Mo. 423.

■ Appeal from St. Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) There was a material variance between the allegations of the indictment and the proof, as to how the appellant signed the alleged books of- registration, if he signed them at all.

<p>1. EVIDENCE: No Objection in Motion. Where defendant’s motion for a new trial does not assign as a ground thereof that the trial court erred in excluding evidence offered by him, any complaint of the ruling of the court in excluding testimony cannot be considered on appeal.</p> <p>2. CONTINUANCE: Discretion. Granting or refusing a continuance in a criminal case is a matter that frequently rests in the sound discretion of the trial court, and unless it is apparent that such discretion has been abused the appellate court will not interfere with its rulings.</p> <p>3. -: Reviewable. Unless the application for a continuance is preserved in the bill of exceptions, the rulings of the trial court thereon are not reviewable on appeal.</p> <p>4. CONCUBINAGE: Instruction: Refusing Defendant’s. Where the court has fully defined the elements of concubinage in an instruction given, as the taking away of a female under eighteen years of age for the purpose of prostitution and concubinage, it is not error to refuse one asked by defendant in which the jury are told that sexual intercourse is not concubinage, and that they should acquit him, even though they find he had sexual intercourse with prosecutrix, unless they find that he took her away for the purpose of concubinage.</p> <p>5. APPELLATE PRACTICE: Sufficiency of Evidence. Where there is any substantial evidence to support the verdict in a criminal case, the appellate court will not interfere therewith on the ground of its insufficiency. It is for the jury to settle any conflict in the evidence.</p> <p>6. CONCUBINAGE: Sexual Intercourse. The evidence was undisputed that prosecutrix was under eighteen years of age, that she was in the legal charge of her father, and that she was persuaded and taken away by defendant. The evidence that the taking away was for the purposes of prostitution was that she and defendant remained at the picnic grounds into the night several hours after her family were gone, and at his persuasion; that they walked that night to his house twelve or fifteen miles away; that the house was a one-room one, in which were two beds; that they remained there that day and the succeeding night; that she lay down on one of the beds, with her clothes off, and defendant, with his shoes and' coat off, lay down beside her. He testified he did not have sexual intercourse with her, and she did not testify one way or the other. Defendant was married and had a family, and they were at her father’s a mile away. Held, sufficient to support a verdict of guilty of concubinage.</p>

— Ho». Louis Hoffman, Judge. (1) Appellant complains because she was cross-examined as to the number of times she had been convicted of various crimes prior to the date of this trial. When appellant became a witness, she was then subject to such cross-examination. This is permitted by our statutes.

Louis City Circuit Court . — Eon. Hugo Muench, Judge. (1) The information on its face is barred by limitation. It is proper and timely to draw attention to the record, which shows and recites that the information last filed, and upon which' appellant was tried, was filed on the 6th day of January, 1908, the same day, according to the jurat, that “Arthur N. Sager” subscribed and swore to it. The offense is therein charged and alleged to have been' committed September 19, 1904.

— How. A. W. Lincoln, Special Judge. (1) There is no bill of exceptions in the record. Motions to quash,, applications for continuance, instructions and motions for new trial and in arrest are strewn through the record, but no proper steps were taken in the lower court to preserve any matters of exception for review. None of the evidence has been brought to this court. In this state of the record nothing is reviewable except the record proper.

— Eon. J. L. Fort, Special Judge. (1) The information is vagne and uncertain and fails to charge any offense under the statute; it fails to charge that a mortal wound was given the deceased by reason of the alleged assault with the knife in question, leaving the charge without any connection between the cutting or stabbing with the knife and infliction of the mortal wound, and omits to charge that the mortal wound was given feloniously, deliberately, premeditatedly on…

— Hem. Louis Hoffman, Judge. (1) None of the three motions to quash, nor the one motion to strike out certain portions of the information, nor exceptions to the overruling of same, were preserved in the hill of exceptions. Such matters form no part of the record proper, and this court is precluded from reviewing same when not embodied in the bill of exceptions.

— Now. John T. Moore, Judge. (1) (a) The form of the amended information upon which the defendant was tried, conforms to the precedents in like cases. State v. Ferguson, 162 Mo. 671. (b) The allegation that the murder was committed with an ax, “which they then and there in their hands held” is not the best form, but does not render the indictment fatally defective. State v. Dalton, 27 Mo. 14; State v. Payton, 90 Mo. 225; State v. Grimes, 29 Mo. App. 471.

Louis City Circuit Court. — Row. Geo. H. Shields, Judge. (1) The court erred in admitting the testimony of Mr. Elspermann, that there was a general registration of voters in the city of St. Louis in September, 1908, when it did not appear that he had any personal knowledge of the fact, and there was no evidence of any official action or notice on the part of the Board of Election Commissioners nor that any such registration was held in pursuance of any law.

— Hon. David H. Harris, Special Judge. (1) Plea in criminal ease is matter and part of record proper and not matter of exception. State to use v. Griffith, 63 Mo. 548; Batason v. Clark, 37 Mo. 31; Sheridan v. Railroad, 56 Mo.'App. 68. (2) The records must affirmatively show that defendant was arraigned and made plea (or plea entered by direction of the court). State v. West, 84 Mo. 440; State v. West, 84 Mo. 440.

— Hon. L. B. Wood-side, Judge. (1) See. 2213, R. S. 1899, upon which the information in this cause is predicated, is directed against the obtaining of money or property from a person whose confidence has first been secured by another by and through means of false and fraudulent representations and acts made and done with the intent to cheat and defraud.

— Eon. D. E. Blair, Judge. (1) Appellant complains because the court permitted the prosecuting attorney to indorse the names of the witnesses, Prank Ross, Wm. Weaver, H. L. Bright and Dr. E. H. Baird, on the information on the day of the trial. We only find in the record an objection by counsel for appellant, and an exception to the ruling of the court in permitting said names to be indorsed on the information by the prosecuting attorney.

— Ho». Henry L. Bright, Judge. Is this appeal authorized by the statute? (1) Section 2709, R. S. 1899, provides that “When any indictment is quashed, or adjudged insufficient upon demurrer, or when judgment thereon is arrested, . . . the court may, in its discretion, grant an appeal. ’ ’ Section 2708 expressly limits the State’s right to appeal to the instances enumerated in section 2709.

<p>1. APPEAL: By State: On Plea in Abatement. The State is not entitled to an appeal from a judgment of the circuit court sustaining defendant’s plea in abatement to the indictment.</p> <p>2. -: -: -: Equivalent to Motion to Quash. A plea in abatement to the indictment is not a motion to quash. The State is entitled to an appeal or writ of error from a judgment in favor of defendant only when it is expressly allowed by statute. And the statute does not say that the State may appeal from a judgment sustaining defendant’s plea in abatement to the indictment. It does say that it may appeal when an indictment is quashed or adjudged insufficient upon demurrer; but a plea in abatement based upon matters dehors the face of the indictment, is not a motion to quash or a demurrer.</p>

<p>APPEAL: By the State. For the reasons stated in State v. Craig, • ante, p. 201, it is held the State has no right to an appeal from, a judgment sustaining a plea in abatement to an indictment.</p>

<p>APPEAL. The State is not entitled to an appeal from a judgment of the circuit court sustaining defendant’s plea in abatement to the indictment.</p>

<p>Appeal from Jasper Circuit Court. — Hon. Henry L. Bright, Judge.</p>

<p>Appeal from Jasper Circuit Court. — Ho». Henry L. Bright, Judge.</p>

<p>Appeal from Jasper Circuit Court. — Ho». Henry L. Bright, Judge.</p>

— Hon. Henry C. Riley, Judge. (1) The proceedings in the prohate court, resulting in the guardian’s sale and deed to defendant bridge company, are void, for the reason that the plaintiffs had a homestead in the land. This involves a construction of certain provisions of chapter 34, R. S. 1899, entitled “Guardians and Curators,” in connection with chapter 37, entitled “Homesteads.” The statutes are in pari materia and should be construed together.

— Hon. Samuel Davis, Judge. (1) The court erred in overruling the demurrer to the evidence and in refusing to give a peremptory instruction directing the jury to return a verdict sustaining the will. The evidence clearly shows that the testator had sufficient capacity to make the will a.t the time he executed it. .

<p>CONTEMPT: Refusal to Answer Question: Incrimination. The petitioner was committed to jail for refusing to answer this question propounded by the grand jury: “Did you ever make any bet with any persons other than Steve Pensa upon the result of any horse race to be run anywhere in this State, or without this State, at his place of business on Washington Avenue?” Held, that, having declared under oath to the court that he could not answer the question without incriminating himself, he was not guilty of pertinaciously refusing to answer a lawful question, and was not guilty of contempt, and is entitled to his discharge. ■</p>

Habeas Corpus. (1) The criminal court of Pettis county, under the statutes, could only impose a fine for the offense charged. The jail sentence was unauthorized. R. ,S. 1899, sec. 2197. Likewise, the stay of execution granted relator was unauthorized. A stay of execution may be granted for ninety days after conviction, by defendant entering into a recognizance to surrender himself in execution. R. S. 1899, sec. 2695.

Habeas Corpus. Petitioner now seeks Ms discharge from said imprisonment, because he contends that section 23, article 2, of the Constitution of Missouri, which provides that no person shall be compelled to testify against Mm-self in a criminal case, was violated by the judgment of the court wMch directed his imprisonment.

— Ho». G. A. Mosman, Judge. (1) This is a proceeding to condemn the land of plaintiff and intérvenors for an alleged public road, and “it has been'uniformly held by this court in proceedings to condemn private property for public use, that unless it affirmatively appeared upon the face of the proceeding that every essential prerequisite of the statute conferring the authority has been complied with, such proceedings, will be void.” In re Bledsoe Hill, 200 Mo. 642.

<p>1. MALICIOUS PROSECUTION: Plaintiff’s Guilt: Probable Cause. In a suit for civil damages for malicious prosecution, the issue is not whether plaintiff was guilty of the offense charged in the information which was based on defendant’s affidavit, but the issue is, Did defendant have probable cause for commencing said prosecution?</p> <p>2. -: Probable Cause: Information Founded on Facts. An instruction, in a suit for malicious prosecution, advising the jury, that- “information that would justify the making of a criminal complaint against another, for the purpose of having him arrested, must be of such character and obtained from „ such sources, that men, generally, of ordinary care, prudence and discretion would feel authorized to act upon it under similar circumstances,” is not erroneous. The law does not require that the prosecuting witness must know of his own knowledge all the facts upon which such prosecution must rest.</p> <p>3. -: -; Evidence: Question for Jury. Defendant filed an affidavit charging plaintiff with arson, and the prosecuting attorney based an information thereon, and the case was dismissed before trial, and plaintiff brought this suit for malicious prosecution. Defendant testified that he was the owner of the house that was burned; that he himself had been charged with burning the house along with one Berryman, but the charge was dismissed; that he then began to investigate, and received information that led him to believe it was burned by an incendiary; that he found plaintiff had a printing outfit in said building, which was insured for $300, and that plaintiff had collected the insurance, and a witness told him plaintiff had purchased the outfit from a woman for fifty dollars. He also produced evidence to the effect that plaintiff’s reputation for honesty and integrity was bad; that plaintiff was seen on the evening of the fire talking to Berryman, whose reputation for honesty, integrity and property-burning was very bad; that soon afterwards Berryman was seen to give Morris some money and heard, to say, “Give it to Daniels, and he will know what it is for,” and these facts were made known to defendant; that he was told by Ballard that Mell had seen plaintiff go towards defendant’s building with shavings and an oil can, about ten minutes before the fire broke out, and defendant testified that Mell told him the same story. Held, that, if these facts were true, the court cannot say, as a matter of law, that an ordinarily reasonable and cautious man would not have said that plaintiff burned the house, and whether or not they were true was a matter for the jury to determine, and their verdict for defendant is justified by the evidence.</p> <p>4. -: -: -: Incompetent Hearsay: Irrelevant. Berryman testified by deposition that defendant, in the suit for malicious prosecution, offered to satisfy two debts amounting to fifty dollars and to pay him fifty dollars cash, if lightning would strike the building which defendant by affidavit charged plaintiff burned; that he, witness, told one Daniels that defendant would pay money to have the building burned, and that Daniels, a few days after the fire, being drunk, told witness he had burned it. Held, first, that the alleged statement of Daniels was wholly incompetent as hearsay; and, second, the statement of Berryman as to what occurred between him and defendant, was utterly irrelevant to any issue on trial, and was properly excluded.</p> <p>5. IMPEACHMENT: Of Excluded Witness. The impeachment of a witness, all of whose testimony was properly excluded, was not hurtful to appellant.</p> <p>6. -: Reputation Prior to Three Years, Where a witness for three years prior to testifying had no established residence, and resided in no place long enough to establish a reputation, it is proper to show that his reputation was bad in the community where he had resided all his life prior to such time.</p>

— Hon. Jno. P. Butter, Judge. (1) The process in the foreclosure proceedings was void. It wa.s not stated in the affidavit that the ordinary process of law could not be served on defendants in this State. As the law stood prior to the Act of 1887 service by publication could be had on any non-resident defendant whether an individual or corporation.

Louis City Circuit Court. — Hon. Daniel-D. Fisher, Judge. If the property was conveyed to defendant for sale, and if defendant sold and received the proceeds, then it is his duty to account therefor. It is sufficient for plaintiff in the first instance to show these facts, and thereupon the burden of proof falls on defendant to make good his accounting and discharge himself of the obligation which the law imposes on him in such a case.

— Now. David H. Eby, Judge. (1) All the evidence shows that plaintiff, with full knowledge of the defective coupler, and with full knowledge .that there was a dangerous and a safe way in which to move the car, adopted the dangerous mode, and thereby was guilty of contributory negligence and cannot recover. Defendant’s demurrer to the evidence should have been sustained.

— lion. J. L. Fort, Judge. (1) The motion in arrest of judgment should have been sustained. The verdict of the commissioners was never reviewed by the court; never set aside or affirmed. Under R. S. 1889; Sec. 1268, it is necessary for the court to review the report of the commissioners and to set the same aside on a proper showing.

— No». Henry G. Riley, Judge. (1) The court erred in not sustaining the demurrer to the replication of the plaintiff. The facts set up in the replication stated no reason why the settlement should be avoided. Layson v. Cooper, 174 Mo. 220; Paris Mfg. Co. v. Carle, 116 Mo. App. 501; Crim v. Crim, 162 Mo. 552; Shirts v. Over John, 60 Mo. 305.

Circuit Court. — Eon. J. W. Alexander, Judge. (1) A clear perception of the attitude of the parties in this matter removes all difficulties as to parties and pleadings. Who are attacking? The appellants. Who are defending? The respondents. Pro hac vice, then, in real substance, as to all issues presented by appellants’ affidavit of concealment appellants occupy the attitude of administrators of the estate, and respondents that of concealers.

— Hon. Jno. G. Parle, Judge. (1) A carrier is held to the exercise of that high degree of care, caution and foresight for the safety of its passengers that a very careful and prudent person would exercise under like circumstances.

<p>Appeal from Nodaway Circuit Court. — Row. William G. Ellison, Judge.</p>

— No». G. A. Mosman, Judge. (1) The fee to the real estate is placed in John Jones as trustee, but as to the real estate devised in items second and third of the will no power is reposed in him, and no duties imposed on him. He is given a bare legal title, without possession. Being the mere repository of title the statute of uses will execute the trust. R. S. 1899, see. 4598; Carter v. Long, 181 Mo. 701; Perry on Trusts (5 Ed.), sec. 298.

<p>Appeal from Jackson Circuit 'Court. — Hon. W. B. Teasclale, Judge.</p>

— Hon. F. A. Cummins, Special Judge. (1) Testimony concerning the financial condition of plaintiffs and their husbands was incompetent. Such evidence had no tendency to prove any issue presented by the pleadings. Its only effect, and, we believe, the only purpose in offering it, was to create in the mind of the jury a sympathetic feeling'for plaintiffs, and thus cause the jury to say, as they did, this farm ought to be divided.

— Row. Henry C. Riley, Judge. (1) The evidence in this ease shows, a reliance upon a common source of title by both plaintiffs and defendant, Thomas C. Powell, and this made a prima facie case for plaintiffs. Harrison Machine Works v. Bowers 200 Mo. 219 ; Finch v. Ullman, 105 Mo. 255; Smith v. Lindsey, 89 Mo. 76; Dixon v. Hunter, 204 Mo. 390.

<p>1. APPELLATE JURISDICTION: By Consent of Parties. Consent of counsel on both sides, that the Supreme Court has jurisdiction to hear and determine the cause, does not give the court jurisdiction.</p> <p>2. -: Federal Question: Removal of Cause. The constitutional provision giving the Supreme Court jurisdiction of the appeal “in cases where the validity of a treaty or statute of or authority exercised under the United States is drawn in question,” does not give said court jurisdiction where the only point is whether or not the trial court erred in refusing to permit the cause to be removed to the United States Circuit Court. Such a ruling did not involve the validity of the act. At most, it was an erroneous construction of a valid act.</p> <p>3. -: Amount in Dispute: Act of 1909: Interest. The amount in dispute, under the Act of 1909, giving jurisdiction of causes to the courts of appeals “where the amount in dispute, exclusive of costs, shall not exceed seventy-five hundred dollars,” meant the amount in dispute at the time the judgment appealed from was rendered, and not the amount in dispute at the time the act was approved. So that if judgment was rendered for $7,500, interest could not be added to that sum until the date of the act, June 12, 1909, so as to give the Supreme Court jurisdiction, but the case should be transferred to the proper court of appeals.</p> <p>4. -: -: Decision of Federal Courts. When a State court is called upon to construe a State statute relating to the jurisdiction of a State court, it is not always safe to follow a decision of a Federal court construing an act of Congress relating to the jurisdiction of Federal courts, because those courts exercise a peculiar jurisdiction and the acts of Congress concerning the subject are to he viewed from that peculiar standpoint.</p>

— No». J. L. Fort, Judge. There is no evidence upon which to hase a judgment for respondent. The evidence in this case shows that the contested deeds were executed two years before the sale to plaintiff for the purpose of preventing the premises in question from being sold for ¥m. F. McAnally’s debts, and that within six weeks of their execution the grantee, Martha Isabel McAnally, died.

— Eon. Nat. M. Shelton, Judge. We have been unable to find a case deciding the point as to the right to file a bill of exceptions when the sole plaintiff dies after the elapse of the term at which judgment was rendered (as in the case at bar), and after appeal granted.

— No». John G. Park, Judge. (1) Plaintiff and his associates had a perfect right to buy the franchise from Enoch, regardless of whether they had notice of the contract that Enoch had made with the Central Construction Company. Land & Gravel Co. v. Com. Co., 138 Mo. 439; Chambers v. Baldwin, 91 Ky. 121; Bourlier v. Maeauley, 91 Ky. 135; Boison v. Thorn, 98 Cal. 578; McCann v. Wolff, 28 Mo. App. 447; Cooley on Torts, 497.

— Hon. Frank Sheets, Special Judge. (1) That a judgment may be valid and binding, the court rendering it must have jurisdiction of the persons of the parties involved. A judgment without jurisdiction is void. Wyth v. Lang, 54 Mo. App. 147; Caffery v. Mining Co., 95 Mo. App. 180. Judgment void unless party is properly brought into court and made a party to the suit.

B. F. Davis, Judge. The road was used, worked and occupied in every way a road could be from the date of the purported contract in 1889 to the fall of -1905, continuously, under claim of right, and the appellant has acquired a perfect easement of way by prescription. A right to a private way acquired by adverse user is a vested right, and not a license. Washburn on Easements (3 Ed.), p. 135; Powers v. Dean, 112 Mo. App. 288. 2nd.

— Rem. Nat. M. Shelton, Judge. (1) The judgment rendered for the plaintiffs was right and proper, and it was error to grant defendants a new trial. (2) The defendants seek to hold the land in question exclusively, solely on the Statute of Limitations. It is not possible for one to acquire title to real estate under any section of our Statute of Limitations, without an adverse holding for some length of time.

— Roto. Geo. W. Wanamaker, Judge. (1) This case is removable to the Federal court and defendant’s petition for removal should have been sustained.

— Sow. J. W. Alexander, Judge. (1) When a description of the land in a contract for the conveyance of real estate is hy mistake indefinite and uncertain, the contract may, in the samé suit, be reformed and then specifically enforced as reformed. Hook v. Craighead, 32 Mo. 405; Waterman v. Dalton, 3 Wis. 273; Pomeroy on Spec. Per. (2 Ed.), sec. 262; G-los v. Wilson, 198 111. 44; 20 Ency. PL and Pr., 396; Story’s Eq. Jur., chap. 5; 20 Am. and Eng. Ency. Law (2 Ed.), 825.

— Hon. Jos. J. Williams, Judge. (1) The burden of proving contributory negligence on the part of plaintiff’s husband rested on defendant. Plaintiff’s husband, in the absence of evidence on her behalf to the contrary, was presumed to have been in the exercise of ordinary care. The instruction given by the court erroneously required plaintiff to prove affirmatively that her husband was in the exercise of ordinary care.