Volume 228 — Missouri Reports

Mandamus. (1) The finding against relator is general; there is no mention of any one of the specified charges but he is found guilty of them all by the statement that, respondents “find, ascertain and determine that said J. Homer Williams is guilty as charged of fraud, deceit and misrepresentation in the practice of dentistry and gross violation of professional duties.” It seems to the relator that it is apparent from this first finding of the commissioner that respondents…

— Hon. Ralph S. Latshaw, Judge. (1) The statute is a revenue measure. (2) Meaning of the statute. Ins. Co. v. State, 86 Tex. 265; 6 Am. and- Eng. Ency. Law 230. (3) The tax provided for by the statute is not uniform.

— Hon. Chas. D. Stewart, Judge. (1) This case does not fall -within what is known as the humanitarian doctrine of this court. Ayres v. Railroad, 190 Mo. 228; Frye v. Railroad, 200 Mo. 377.

Louis City Circuit Court. — Eon. Geo. C. Eitchcock, Judge. (1) Under the present statute, the prior reversal saves the action from the special Statute of Limitations applicable to this class of causes. Clark v. Railroad, 219 Mo. 524. (2) Counsel for respondent contend that the judgment of reversal in the former case is res adjudicata in this. A few words on the subject from our side of the controversy may not be amiss.

Louis City Circuit Court. — Hon. Matt. ■ G. Reynolds, Judge. (1) Where compliance has been, made with the requirements specified by law for procuring a license, and the officer in whom authority is lodged refuses.to issue the license, he may be compelled to do so by mandamus. St. Louis v. Wetzel, 136 Mo. 620'; Ex parte Lucas, 160 Mo. 227; State ex rel. v. Ruark, 30 Mo. App. 325.

<p>1. WIDTH OF WAGON TIRES: Invalid Ordinance: In Excess of Charter Powers. Where the charter gives to a city the power “to regulate the width of tires of all vehicles for héavy transportation,” ¿n ordinance that undertakes to prohibit the use upon the streets of all vehicles unless they have tires of a specified width, whether they are used in heavy transportation or not, is invalid, since it is not limited to the express power granted.</p> <p>2. -: -: -: Inseparable Parts. And if the ordinance is so drawn that its invalid portions cannot be separated from its other parts, the whole is invalid and it cannot be upheld as an inhibition upon the use for heavy transportation of wagons with tires wider than the ordinance specifications.</p>

Louis City Circuit Court. — Hon. Matt. G. Reynolds, Judge. (1) Upon this appeal, from the trial court’s order sustaining the motion for a new trial, the whole record is before this court for review. Scullin v. Railroad, 192 Mo. 5, 184 Mo. 695.

— Row. W. B. Teasdale, Judge. (1) Plaintiff showed perfect title to the property-in dispute unless defeated by defendant’s tax deed. A sale of real estate for the collection of taxes being practically a proceeding in rem to fix a lien upon the property, it is essential that all the records and proceedings therewith describe the property in a definite manner.

— Hon. N. D. Thurmond, Judge. (1) The trial court committed error in sustaining the demurrer on the part of the State to the plea in bar of former acquittal of the defendant Stewart.

— Hon. J. L. Fort, Judge. (1) The information in this ease is insufficient, (a) It fails to charge with what the assault was made. State v. Ferguson, 152 Mo. 92; 2 Hawk. P. C., ch. 22, sec. 60. (b) It fails to charge that the mortal wound was feloniously given. State v. Green, 111 Mo. 585; State v. Williams, 184 Mo. 261; State v. Woodward, 191 Mo. 617. (2) Defendant’s plea in abatement should have been sustained. R. S. 1899, sec. 2476; Laws 1901, p. 138.

— Row. J. G. Sheppard, Judge. (1) The indictment in this case is fatally defective, in that it fails to allege that the alleged marking of the hogs was done without the owner’s consent. The statute makes the marking, or branding of animals with intent, etc., a species of larceny. In every case of larceny the want of consent of the owner of property alleged to have been stolen is an essential element of the offense.

— Hon. John T. Moore, Judge. (1) Instruction 2, given on the part of the State, informing the jury that if appellant cashed the forged check, as charged, in Howell county, the law presumed the forgery to have been committed in that county, unless the proof showed to the coDtrary, correctly declared the law on that phase of the case. State v. Allen, 116 Mo. 548; Sherwood’s- Crim. Law, p. 354.

— Hon. L. B. Woo chide, Judge. (1) Only two instructions were given to the jury on behalf of the State. Instruction 1 embraced all of the elements contained in the indictment and properly marked out the punishment as by the statute provided. R. S. 1899, sec. 1898 and 1903; State v. Price, 186 Mo. 140.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) Appellant’s demurrer to the evidence should have been sustained. There was a total failure of evidence to support the allegation of the indictment that the alleged false oath was taken in the case of the State v. Joseph Boyd. 30 Cyc. 1441; 2 Bishop’s New Or. Pr. (4 Ed.), secs. 910, 911; 2 Wharton Cr.

— Hon. W. N. Evans, Judge. (1) The first instruction given on belialf of tlie State failed to properly define tlie crime of larceny. To constitute tlie crime of larceny, the taking must be without the consent of the owner, and the jury should be so instructed.

— Ron. G. A. Beivton, Judge. (1) (a) It was reversible error to permit the prosecuting attorney to lead, cross-examine, discredit and impeach witness for the State, over the objections of the defendant, by evidence previously made, unless he was entrapped or misled by some artifice or by some statement made to him by some one on whom he had a right to rely. State v. Burks, 132 Mo. 363.

— -No». E. E. Porterfield, Judge. (1) Upon a casual examination of the application for continuance it will he seen that it is in regular form. In fact, Judge Porterfield overruled said application on the ground that the evidence contained in the affidavit was immaterial. This ground is wholly untenable, since proof that deceased had a knife near his hand just after he fell shows plainly that he came from behind the counter around to the door to cut and injure defendant.

Louis City Circuit Court. — Ho». Geo. H. Shields, Judge. (1) The indictment in this case charges that the appellant “then and there unlawfully, feloniously, willfully, knowingly, falsely and fraudulently did sign said registers, poll hooks and hooks of registration of said election precinct, in the margin on said books provided for the signatures of registered electors and voters, under the said name John Murphy, by writing on said books the words and name “John Murphy.” It…

Louis City Circuit Court. — Ron. George R. Shields, Judge. (1) The trial court erred in permitting certain witnesses to testify as to how they voted, or for what candidates, at the primary; not from positive knowledge, nor upon positive assertion, bnt from indistinct recollection, pure guesswork, and in some instances where the witnesses admitted that they were not sure.

— Ho». Ben. J. Casteel, Judge. (1) The motion for new trial was filed on December 7, 1908, seven days after the rendition of the verdict and, also, seven days after judgment. The motion for new trial must be filed within four days after return of verdict, and before judgment; this is mandatory. R. S 1899', see. 2689; State v. Brooks, 92 Mo. 542; State v. Dusenberry, 112 Mo. 277; State v. Plunt, 141 Mo. 626; State v. Maddox, 153 Mo. 471; State v. Pritchett, 219 Mo. 696.

Circuit Court. — Hon. Chas. A. Denton, Judge. (1) The testimony of the prosecuting witness, upon which the State must depend solely, makes out a case of rape. It was proper, therefore, to submit to the jury the usual instruction on her failure to make an outcry or complaint of her treatment thereafter.

— Son. J. L. Fort, Judge. (1) The information is sufficient, and concisely presents the offense under section 1848, R. S. 1899. The assault is alleged to have been made with a pistol loaded with gunpowder and balls, and also a large knife. It was competent to charge the assault to have been committed by the use of more than one weapon.

— Mon. Jas. B. Barnett, Judge. (1) The information charges with certainty the essential elements of the crime, and follows well-considered precedents in criminal pleading. State v. Kindred, 48 Mo. 279; State v. Rector, 126 Mo. 328; State ,v. Barrington, 198 Mo. 36.

<p>1. MURDER: Sufficient Evidence: Circumstantial: Conflict. It is for the jury to settle any conflict in the testimony; and though the evidence tending to show defendant’s guilt is circumstantial and though the verdict convicts him of murder in the first degree, yet if it is substantial the Supreme Court will not disturb the verdict on the ground that it is insufficient.</p> <p>2. CROSS-EXAMINATION: Defendant as Witness. A cross-examination of defendant as to matters referred to or necessarily embraced within the questions propounded and answers given in his examination in chief, is not improper.</p> <p>3. TESTIMONY: Irrelevant Matters: Exclusion. Questions and answers concerning an irrelevant matter which develop no evidence either for or against defendant, especially where the trial court specifically directs the jury they must not consider such matters, are not error.</p> <p>41. MURDER: Of Brother: Double Presumption of Innocence. An instruction telling the jury that defendant is entitled to an additional presumption of innocence due to the fact that deceased was his brother, is unauthorized; but having been asked by defendant and given, it was error in his behalf and he cannot complain.</p> <p>5. -: Of First Degree: Instructions for Lower Grade. Where upon the facts as developed at the trial defendant is guilty of murder in the first degree if guilty at all, the instructions are properly confined to that degree of the offense, and the court is not justified in giving instructions upon any lower degree, and defendant cannot be heard to complain that instructions submitting lower degrees of the offense were not given.</p> <p>6. REMARKS OF COUNSEL: Not Preserved. Complaints of improper remarks of counsel for the State made during the argument of the case, preserved only in the motion for a new trial, cannot be reviewed on appeal.</p> <p>7. IMPEACHING JUROR: Verdict Not Based on Evidence. Affidavits in support of the motion for a new trial tending to show that one of the jurors made statements in the presence of certain persons that “it was not the evidence given in court in the trial of the case that the jury convicted him on, but on what they heard outside of court, and that there was some evidence they would not allow to be given in court,” amount to nothing more or less than an offer to use the statements of a juror for the purpose of impeaching the verdict. A juror cannot make affidavits or statements impeaching the verdict of a jury of which he was one.</p> <p>8. MURDER: Reviewing Case: No Counsel. Though defendant is not represented by counsel in the Supreme Court on an appeal from a judgment convicting him of murder in the first degree, the court will carefully examine the record with the view of /discovering any reversible error committed at the trial to which exception was taken, and also the sufficiency of the information.</p>

— Non. B. 0. Thurman, Judge. (1) The demurrer to the evidence should have been sustained, because the table was not adapted, devised and designed for poker playing in the manner that gambling was done upon it, and such was the trial court’s view of the law as outlined in instruction 7. The table and slot device were entirely covered with cloth. The mere fact that this table was used does not make it a gambling device.

— Hon. Geo. W. Wanamaker, Judge. The appellant is mistaken in the assumption of having invoked the provision, or the construction of any provision,- of the Constitution in this case. No constitutional provision has been invoked to any greater extent than the provision of the Constitution is invoked in every criminal prosecution.

Louis City Circuit Court. — -Ho». Daniel D. Fisher, judge. The State was permitted, over appellant’s objection, to introduce evidence tending to show that appellant had registered in another precinct under the name of Patrick Clancey, the circuit attorney stating that its purpose was to show that appellant “actually registered at another precinct . . . there are two crimes, registering twice,” and promising’ to connect appellant therewith.

- — Hon. Jos. J. Williams, Judge. (1) The information is valid and sufficient; it concisely presents the charge in the language of the statute, and is good under the common law. R. S. 1899, sec. 1875; State v. Moore, 61 Mo. 276; State v. Hunt, 190 Mo. 359. (2) The bill of exceptions is not authenticated or identified. The part of the record that should have been denominated the bill of exceptions is intermingled with the record proper.

Louis City Circuit Court. -^-Eon. Chas. C. Allen, Judge. (1) The court erred in overruling appellant’s demurrer to the indictment. The second count charged the defendants with setting up and keeping a certain table commonly called a crap table, etc., but failed to aver how or in what manner it was used.

<p>Appeal from Moniteau Circuit Court. — Ho». Wm. H. Martin, Judge.</p>

Louis City Circuit Court. — Eon. Jesse A. McDonald, Judge. (1) The court erred in overruling appellant’s motion for judgment on the pleadings, because the respondent failed to deny the allegations of appellant’s answer, or, at best, presented a case wherein the denial must be fairly regarded as ambiguous. Tomlinson v. Lynch, 32 Mo. 160; Billings v. Iron Railway Co., 86 Mo. App. 228; Lamberson v. Long, 66 Mo. App. 254; Jordan v. Surghnor, 107 Mo. 520; Holke v. Herman, 87 Mo.

Platie Circuit Court. — Hon. Alonzo I). Burnes, Judge. Held: secured and appropriated “according to the provisions of the charter.” What are those provisions relative to “money” and “other funds?” Read sections 2 and 5, article 3.

<p>Appeal from Platte Circuit Court. — No». Alonzo D. Burnes, Judge.</p>

— Eon. David H. Eby, Judge. (1) Prances Peak, life tenant under the will of her deceased husband, purchased the land in controversy for all parties in interest. Allen v. DeGroodt, 105 Mo. 442; Cockrill v. Hutchinson, 135 Mo. 67; Hinters v. Hinters, 114 Mo. 26; Allen v. DeGroodt, 98 Mo. 159. (2) The court should have ascertained the amount appellants should he required to pay in order to save their interests in the lands. Tender was not necessary.

Circuit Court.— Hon. Willard P. Cave, Special Judge. (1) Plaintiff having shown that he is the owner in fee of all the southwest quarter of northwest quarter of section 10, and in actual, undisputed possession of the same, except that portion thereof in controversy, the law invests him with the possession of the whole and he can only be dispossessed by actual ouster.

Francois Circuit Court. — Hon. Charles A. Killian, Judge. (1) Although the deed named John B. Adams as the grantee, when this property was purchased in 1864 from Joseph Stay, yet the absolute equitable title vested at once in James F. Adams, plaintiffs’ husband and father, because he was the man who bought the property. He bought it with his own money and his brother had nothing to do with the affair.

<p>1. CONSTITUTIONAL OR FEDERAL QUESTION: Raised After Default: Too Late: Appellate Jurisdiction. A failure to raise a constitutional or Federal question until the next term after defendant was required to plead and until default aftér judgment rendered at that term, makes the raising of such a question thereafter, in the motion to set aside, too late; and the judgment being for $1055.30, and there being no constitutional or Federal question that can he considered, the Supreme Court has no jurisdiction of the defendant’s appeal.</p> <p>2. ' AMENDING RETURN: Relation: Time to Plead. Courts will permit an amendment to the sheriff’s return of a writ of summons to correspond with the facts of the case; and if the amendment he made even at a subsequent term, the return will relate back to the proper return date; and whén the return is made, and thereupon defendant’s motion to quash is overruled, it becomes defendant’s duty to plead at the term at which his motion is overruled.</p> <p>3. -: -: -: Judgment by Default: Constitutional or Federal Question: Raised in Motion to Set Aside: Too Late. Where defendant at the October term filed a motion to quash the sheriff’s return, and the court, without notice to defendant, overruled the motion and permitted the sheriff to amend his return, it became defendant’s duty to plead at that term, and at that term, if the case involved a Federal or constitutional question, it was defendant’s duty to raise it; but where defendant raised no such question at that term, or the next until after judgment by default, and at the next, after judgment by default had been rendered upon a judgment of a court in the Indian Territory, defendant filed a motion to set the same aside, on the ground that the court never acquired jurisdiction over defendant because of the defective service and return, and also because under the Constitution and Federal statutes plaintiff was not entitled to judgment, these Federal and constitutional questions were not timely raised, and the Supreme Court, because of them, does not acquire jurisdiction over defendant’s appeal from the judgment overruling his motion to set aside.</p> <p>4. SHERIFF’S RETURN: Amendment: Defendant's Right to Notice. The court has power to permit the sheriff to amend his return to harmonize with the facts, without notice to the defendant. It is the service of the writ and petition upon defendant, and not the return, that gives the court jurisdiction over the person of defendant. The return is merely the evidence by which the court is -informed that the defendant has been served. If the original return was a false return, the court has the right, under the statute, to permit the sheriff to amend it, without notice to defendant. [Overruling, on this point, Little Rock Trust Co. v. S. M. & A. Ry. Co., 195 Mo. 1. c. 689.]</p> <p>BeU, by YALLIANT, J., concurring, that the allowing of an amendment to a return being a matter in the sound judicial discretion of the court, and the statute which authorizes it not expressly requiring notice of the application to amend, the question of requiring notice is also within the sound judicial discretion of the court, and, therefore, if, in a given case, the trial court has allowed the return to be amended without notice, the ruling will not on appeal be held to be error, unless under the facts, the appellate court is satisfied the discretion was not judicially exercised and injury probably resulted. And where defendant entered a limited appearance for the purpose of moving to quash the return, as was the fact in this case, defendant was hound to take notice of what the court did with its motion and of its rulings on the sufficiency of the return, and its rulings on the motion being based on the amendment, defendant had notice and the court did not abuse its discretion.</p> <p>Held, also, that the practice of allowing a sheriff to amend his return has gone further than was originally contemplated, either by the General Assembly or by this court, and has reached a condition that calls for legislation to put a reasonable limit to the time in which an amendment should be allowed, and to require notice if the party to he affected is within reach.</p>

Louis City Circuit Court. — Eon. Jesse A. McDonald!, Judge. (1) The Act of 1903 is in conflict with the Constitution of Missouri, (a) Because it is an arbitrary, unusual, unnecessary and unreasonable interference with the right of private contract, and with the conduct of private business. Woolley v. Mears, 226 Mo. 41; Grossman v. Caminez, 79 N. Y. App. Div. 15; Fisher Co. v. Woods, 187 N. Y. 90; State v. Loomis, 115 Mo. 307; Mo. Constitution, art. 2, secs. 4 and 15.

— Hon. C. A. Mosman, Judge. (1) As to the pojnt that the record does not disclose that appellant excepted) to the court’s action in overruling the motion for a new trial, we entertain the view that an announcement of the trial court and that exception is made to all adverse rulings of the court, is a sufficient answer to this point. But in addition, it will be borne in mind that the respondent is contend-' ing that this is an equity case.

Platte Circuit Court. — Hon. Alonzo H. Bwnes, Judge. (1) The court committed error in dismissing the suit and entering judgment for respondents against defendant James Wallis, on the stipulation filed between respondents and James Wallis, after answer filed by appellants.

Louis City Circuit Court. — Hon. Robt. M. Foster, Judge. (1) The evidence must be confined to the issues raised by the pleadings, and it is not competent to prove a given condition or quality at a given time by evidence of incidents occurring prior to that time. Gable v. Kansas City, 148 Mo. 470; Hannibal v. Richards, 35 Mo. App. 15; Caleaterra v. Iovaldi, 123 Mo. App. 347.

— Hon. Francis H. Trimble, Judge. (1) Alimony is an allowance payable out of the husband’s estate for the wife’s support, payable periodically, except where the statutes authorize an award in gross. It is not a portion of the husband’s estate to be assigned1 to her in fee simple. It never covers the estate itself, and cannot be decreed in specific property, except by statutory authorization or by agreement. 1 Bailey on Jur., sec. 271, p. 282; 2 Am. and Eng. Ency.

Louis City Circuit Court. — Row. Robt. M. Foster, Judge. (1) The contract shown in evidence being unilateral and containing a provision that it should be closed twenty days from February 3d, or earnest money forfeited, time of performance became the essence of the contract.

<p>TRANSFERRING CAUSE TO SUPREME COURT: Wrong Opinion. A judge of a Court of Appeals, who is of the opinion, that a decision made by said court is in harmony with the last previous ruling of the Supreme Court on the point, has no authority to transfer the case to the Supreme Court on the ground that he believes the former ruling of the Supreme Court to be wrong.</p>

Louis City Circuit Court. — Now. O’Neill Tty an, Judge. (1) The insurance contract of a fraternal society which has not qualified under section 1410, R. S. 1899:, is governed by the insurance laws of our State. Provisions in such insurance contracts which deny liability in case of suicide of the insured' are void under section 7896, unless suicide was contemplated at application (which is out of this case).

Louis City Circuit Court. — Hon. Matt. G. Reynolds, Judge. (1) An ordinance to be valid must be reasonable. Dillon on Mun. Corp. (4 Ed.), sec. 319; Corrigan v. Gage, 68 Mo. 541. (2) A contract should always be given a just, fair and reasonable construction. 17 Am. and Eng. Eney. Law (2 Ed.) 18; 9 Cyc. Law and Proc. 587; Clarke on Contracts (Ed. 1894) 593, 595; Lawson on Contracts, see. 389; McManus v. Shoe Co., 60 Mo. App. 216.