Volume 234 — Missouri Reports

— Hon. Joseph J. Williams, Judge. (1) The court erred in holding that there was no evidence that Swope, plaintiff’s grantor, who acquired by deed, prior of record, but subsequent of date, was a purchaser for value.

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

— Eon. Joseph J. Williams, Judge. (1) The court erred in overruling appellants’ motion to dismiss and abate this action because not authorized by order of the county court of Wayne county. “In each county there shall be a county court which shall be a court of record and shall have jurisdiction to transact all county and such other business as may be prescribed by law.” Constitution, art. 6, sec. 36.

— Hon. W. N. , • Evans, Judge. ■ (1) Under the bankruptcy law of 1867, an assignee in bankruptcy could not act until his appointment or election had been approved of record by the court in which the proceedings were pending; and until such approval was made a register could not assign the bankrupt’s effects to the assignee. 14’U. S. Stat. at Lar. 517, sec. 13; In re Scheiffer, Fed. Cas. No. 12,447, 21 Fed. Cas. 657; Ex parte Bryan, Fed.. Cas. No. 2,061, 4 Fed.

— Eon. John Q. Park, Judge. (1) Plaintiff’s case is bottomed on, this statute: “All scaffolds used in or for the erection of any kind of building, shall be well and safely supported, and so secured as to insure the safety of persons working thereon, against the falling thereof.” R. 8. 1899, secs. 6447 and 6450. (2) Said statute applies to Williams’s case because the scaffold that fell and injured him was, at the time, being used in and for the erection of the building.

— Hon. W. N. Evans, Judge. (1) The sheriff’s deed introduced by respondents as the basis of their title did not convey or purport to convey that portion of the land in controversy described as west one-half of section 9 and west one-half of section 14. Sanzenbacher v. Santhuff, 220 Mo. 274.

— Hon. W. N. Evans, Judge. (1) Plaintiff bases Ms cause of action on false and fraudulent representations and also on a mutual mistake of law and facts. Held: that this was such a mixed and mutual mistake of law and fact as entitled the purchaser to relief in equity. Griffith v. Townley, 69 Mo. 13.

Mandamus. (1) The district line should be drawn at the mid.way line in all cases where platted lots front on the street improved, except where the lots as platted extend beyond such line, in which event the district line should follow the lot line. As all the lots in City Block 1287 are platted lots and none of them, as platted, extend beyond the midway line, a manifest mistake was therefore committed when snch midway line was not followed in laying ont the district..

Louis City. Circuit Court. — Ron. Eugene McQuiliin, Judge. •(1) A trust violating the rule against perpetuities is void, unless the object and purpose of such trust is to create a valid public charity. 2 Perry on Trusts (5 Ed.), sec. 687; 2 Underhill on Wills, 1195; Johnson v. Holifield,- 79 Ala. 423; Troutman v. Orphans’ Home, 66 Kas. 1; Hilliard v. Miller, 10 Pa. St. 326;-Duke of Norfolk’s Case, 1 Vern. 164; Bank v. Longfellow, 96 Mo.

— Hon. John P. Butler, Judge. (1) The deed was sufficient to and did convey the title to the land in question to the defendant. The consideration of five hundred dollars, recited in' the deed to be paid in maintenance, and the separate contract from the grantee to the grantors to support and provide for them during their lives, were both a good and valuable consideration for the conveyance. Anderson v. Gaines, 156 Mo. 664.

— lion. J. L. Fort, Judge. (1) The duty is devolved upon a plaintiff, in the first instance, to state a canse of action; if he fails to state a cause of action, the objection may be raised in this court. Young v. Scofield, 132 Mo. 650’. Fraud and injury must concur, and it must be so alleged, or plaintiff cannot succeed, and it was not so alleged in this case. 9 Ency. PI. and Pr. 696, sec. 6.

— Eon. Samuel Davis, Judge. (1) If the debt is honest and the security not excessive, the intention which prompted the making of the deed can in no wise affect the question of its validity or of its invalidity in a controversy with other creditors. Bangs'Milling Co. v. Burns, 152. Mo. 350; Bant v. Russey, 74 Mo. App. 651.

— Hon. John P. Butter, Judge. (1) The court erred in refusing to admit in evidence the deed from Nancy J. Morris to her husband, George M. Morris, conveying the land which George M. Morris sold as curator, the proceeds of which sale were invested in the land which the trial court found was held by George M. Morris as trustee for his children. A deed from the wife to the husband is good and will convey the legal title to the husband.

<p>Appeal from Stoddard Circuit Court. — Hon. J. L. Fort, Judge.</p>

<p>1. ASSESSMENT: Increase by Board of Equalization. If the county board of equalization finds no inequality in the assessment of property as made by the assessor, but does find that all real and personal property in the county has been assessed ten per cent below its true value, the board may by one order Increase the assessor’s valuation of all property in the county by ten per cent.</p> <p>2. -: -: Judicial Act: Collateral Attack.' The statute authorizes the county board of equalization to so equalize the valuation and assessment of all property in the county “that each tract of land shall be entered on the tax book at its true value,” and “to raise the valuation of all such tracts or parcels of land and any personal property, such as in their opinions have been returned below tbeir real value, according to tbe rule prescribed by this chapter for such valuation.” The assessor made return of his tax book, and the county board made this order: “Ordered by the board that real and personal property situate in Christian county be raised ten per cent.” Hela, that the board had power to make this order and thereby raise the assessment upon all property in the county ten per cent. Held, also, that the board in making the order was acting in a judicial capacity, and its action is not subject to collateral attack, such as by an answer denying the validity of the order by a taxpayer who is being sued for his taxes and who tenders all the taxes due except the ten per cent increase.</p> <p>3. -: -: Notice. Notice, by publication in a newspaper, given by the board of equalization, that it would meet on the fourth Monday in April to heaj reasons, if any, why the increase of ten per cent in the valuation of all property in the county should not be made, is suffici mt notice to each individual taxpayer in the county, and an increase in the valuation of defendant’s property was not invalid because no.further notice was given.</p>

<p>Appeal from. Jackson Criminal Court. — Hon. Ralph 8. Latshaw, Judge.</p> <p>(1) Indictment is illegal and void and the defendant should he discharged. State v. Stowe, 132 Mo. 199; United States v. Riley, 74 Fed. 210'; State v. Drake, 30 N. J. L. 422; State v. Wiseback, 139 Mo. 214; State v. Thompson, 137 Mo. 620; State v. Meysenberg, 171 Mo. 51; State v. Hall, 130 Mo. App. 175; State v. Krueger, 134 Mo. 262; State v. Barbee, 136 Mo. 440. (2) The evidence of the State is wholly insufficient to sustain the verdict. State v. Nesenhener, 164 Mo. 461; State v. Jackson, 95 Mo. 623; State v. Moxley, 102 Mo. 374; State v. Francis, 199 Mo. 671; State v. Jones, 106 Mo. 302; State v. Scott, 177 Mo. 665; State v. Crabtree, 170 Mo. 642; State v. Johnson, 209 Mo. 357. (3) The court committed error in admitting over defendant’s objection incompetent, irrelevant, immaterial and prejudicial testimony offered by the State, and in excluding competent, relevant and material testimony offered by the defendant, (a) As to other offenses: Schafner v. Commonwealth, 72 Pa. St. 60; Sykes v. State, 112 Tenn. 572; Farris v. People, 129 111. 528; Pitts v. State, 43 Miss. 473; State v. Palmberg, 199 Mo. 233; State v. David, 131 Mo. 397; Bird v. United States, 180 U. S. 356; Kearney v. State, 68 Miss. 233; People v. Molineux, 168 N. Y. 26; Beavers v. State, 54 Ark. 336; State v. Boatright, 182 Mo. 51; State v. Spray, 174 Mo. 85; State v. Goetz, 34 Mo. 85; State v. Reed, 85 Mo. 194; State v. Tabor, 95 Mo. 590; State v. Reavis, 71 Mb. 419; State v. Burlingame, 146 Mo. 207; State- v. Harroll, 38 Mo. 496; State v. Alston, 94 N. C. 930; Lee v. State, 72 S. W. 1005-; Davis v. State, 54 Neb. 177; Janzen v. People, 15-9 111. 441; Raymond v. Commonwealth, 96 S. "W. 515; State v. May, 142 Mo. 154; State v..Wilson, 174 Mo. 569; State v. Parker, 96 Mo. 382; State v. Raymond, 53- N. J. L. 260; Boyd v. United States, 142 U. S. 450; People v. -Lonsdale, 122 Mich. 388; State v. Brown, 188 Mo. 464 ; People v. Collins, 107 N. W. (Mich.) 1114. (b) As to expert evidence: Baehr v. Casualty Co., 133 Mo. 541; Glasgow v. Railroad, 191 Mo. 347; Braggs v. Rail.road, 192 Mo. 343; Taylor v. Railroad, 185 Mo. 25-5; Gutridge v. Railroad, 194 Mo. 472. (4) The court erred in giving instruction number two for the State. State v. Bailey, 57 Mo. 131; State v. Sayers, 58- Mo. 588; State v. Hudson, 59 Mo. 138 ; State v. Chambers, 87 Mo. 409; State v. McKenzie, 102 Mo. 631; State v. May, 142 Mo. 152. (5) The court erred in permitting the prosecuting attorney and special counsel to make improper and highly prejudicial statements during the. progress of the trial in the presence of the jury. State v. Jackson, 95- Mo. 623; State v. King, 64 Mo. 591; State v. Reed, 71 Mo. 200; State- v. Lee, 66 Mo. 165; State v. Mahly, 68 Mo. 315; State v. Elmer, 115 Mo. 401; State v. Fairlamb, 121 Mo. 150; State v. Ulrich, 110 Mo. .350; State v. Shipley, 174 Mo. 512; State v. Clancy, 225 Mo. 654; State v. Fischer, 124 Mo. 460; State v. Robbst, 131 Mo. 328; State v. M-oxley, 102 Mo. 374; Evans v. Trenton, 112 Mo. 390'; State- v. Lentz, 184 Mo. 243. (6) The improper comments of the court on the law and the evidence, and his repeated exhibitions and manifestations of anger toward defendant and his counsel, during the trial in the presence of the jury, were gross errors and tended to prejudice the jury against defendant. Rose v. Kansas City, 125 Mo. App.' 231; Wright v. Richmond, 21 Mo. App. 76; Padgett v. Moll, 159 Mo. 143; State v. Shipley, 174 Mo. 512; State v. Lentz, 184 Mo. 243; State v. ¿ring, 64 Mo. 591; State v. Phillips, 109 Pac. 1049; Hicks v. United States, 103 Pac. 873; Wheeler v. Wallace, 53 Mich. 355; State v. Swisher, 186 Mo. 14. (7) The court erred in permitting counsel specially employed to prosecute defendant to make the opening statement to the jury and the closing argument on the part of the State. R. S. 1899, see. 2627; State v. Price, 111 Mo. App. 423; R. S. 1899, sec. 4890. (8) The court erred in revoking the defendant’s bond and committing him to jail during the pendency of the trial. (9) The court erred in overruling defendant’s objections to the hypothetical questions propounded to the State’s experts, because the questions assumed facts which were not in evidence and excluded facts which were in evidence. Russ v. Railroad, 112 Mo. 48; Benjamin v. Railroad, 50 Mo. App. 610; Hicks v. Railroad, 124 Mo. 125; Root v. Railroad, 195 Mo. 377; Dernart v. Storage Co., 121 Mo. App. 105; Davis v. Ins. Co., 52 Pac. (Kas.) 67; Soquet v. State, 72 Wis. 659. (10) The verdict of the jury is the result of bias, passion and prejudice, and is therefore a denial of the constitutional guarantee that the defendant shall have a trial by a fair and impartial jury.</p> <p>(1) The indictment is sufficient in form and substance and contains every material and essential allegation charging appellant with murder in the first degree of Thomas H. Swope, by administering to him “strychnine, and other deadly drags and poisonous .substances, to the jurors unknown.” R. S. 1909, sec. 4485; Kelley’s Crim. Law (2 Ed.), sec. 568; Sherwood’s Crina. Law, 142; 3 Chit. Crina. Law, 771; State v. Steen, 115 Mo. 474; State v. Brooks, 92 Mo. 550; Joyce on Indictments, 733. (2) The indictment is legal and valid and fully informed appellant of the crime with which he is charged. Appellant makes the further contention that the indictment is insufficient, because it does not contain the specific charge of the administering of cyanide of potassium, a deadly poison, instead of charging “and other deadly drugs and poisonous substances, to the jurors unknown.” In other words, appellant contends that the indictment should be held bad as against our State Constitution, which provides by Sec. 22 of the Bill of Rights that, “the accused shall have the right ... to demand the nature and cause of the accusation” against him, arid relies upon the case of State v. Stowe, 132 Mo. 199, as the leading authority in this State as supporting his contention.’ On this point the rule is clearly stated in Bishop’s New Criminal Procedure, sec. 553, to be as follows: “In homicide, the indictment may charge that it was committed ‘in some way and manner, and by some means, instruments, and weapons, to the jurors unknown,’ if in fact the grand jury are unable on investigation to be more specific.” The author cites the following, among other authorities, in support of the above rule: Commonwealth v. Webster, 59 Mass. 295; State v. Williams, 7 Jones (N. C.) 446; P'eople v. Cronin, 34 Cal. 191; State v. Burke, 54 N. PI. 92; State v. Parker, 65 N. C. 453; State v. Wood, 5J N. PI. 484; Cox v. People, 80' N. Y. 500’; Olive v. State, 11 Neb. 1. (3) The evidence offered on the part of the State clearly and positively proved appellant guilty as charged beyond a reasonable doubt, and the verdict of the jury is fully warranted in finding appellant guilty of murder in the first degree as charged. The rule of law is well settled in this State that if there is any substantial- evidence upon which to base the verdict, even in a criminal case, it will not be disturbed on appeal. State v. Smith, 190 Mo. 723. (4) The court did not err in admitting evidence tending to prove the commission of the other crimes than the one charged in this indictment. It is a general rule of law that a distinct, unconnected crime with that laid in the indictment cannot be .proved against the defendant. 1 Bishop’s Crim. Proc., sec. 1120. Yet this general rule of law has a number of well -recognized exceptions. 1 Bishop’s Crim. Proc., sec. 1126-. See sections 1127, 1128 and 1129 of 1 Bishop’s Crim. Proc., for further additional exceptions to the general rule. People v. Molineux, 168 N. Y. 293; Goer sen v. Commonwealth, 99 Pa. St. 398. The real question to be considered is whether the events connected with the other crimes or attempted crimes, as proved in this case, are so related to the murder of Col. Swope, as charged in the indictment, as to fall within one or more of the well recognized exceptions as heretofore stated. One common motive for the crime as charged in the indictment runs through all of the other alleged -crimes. State v. Spaugh, 200 Mo. 5-94; State v. Bailey, 190 Mo. 279; Goersen v. Commonwealth, s-upra; Commonwealth v. Robinson, 146 Mass. 577; Commonwealth v. Snell, 189 Mass. 22; Hawes v. State, 88 Ala.- 37; Higgins v. State, 157 Ind. 57; People v. Harris, 136 N. Y. 423; Zoldoske v. State, 82 "Wis. 580. The evidence of the other alleged crimes was properly admitted to show the intent with which Dr. Hyde administered the capsule to Col. Swope, and to disprove the possibility of mistake, accident, or doubt as to the cause of Col. Swope’s death. People v- Molineux, supra, 300; 'Wharton’s Am. Crim. Law (6 Ed.), sec. 649; 3 Greenleaf, Ev., sec. 15; Stephen’s Digest of Ev., arts. 11 and 12; 7 Am. and Eng. Ency. Law, 61-62. There was one common plan or scheme in the murder of Col. Swope and all of the other alleged crimes. People v. Molineux, supra, 305'. The following additional authorities fully sustain the position of the State as to the admissibility of the evidence showing the commission of the other alleged crimes: State v. Toohey, 203 Mo. 678; Regina v. Cotton, 12 Cox’s Cr. Cas. 400; Makin v. Attorney-General, 17 Cox’s Cr. Cas. 704; Regina v. Geering, 18 L. J. Maj. Cas. 215; Regina v. Heesom, 14 Cox’s Cr. Cas. ,40. (5) The court did not err in permitting the expert medical witnesses for the State to give their opinions on the statement of facts which they witnessed and testified to in this trial, nor in giving their opinions in answer to certain hypothetical questions. Lawson on Ex. and Op. Ev., 162; Railroad v. Falvey, 104 Ind. 418; State v. Wright, 134 Mo. 418; Bowen v. Huntington, 35 W. Ya. 682; Railroad v. Shires, 108 111. 617; Railroad v. Huntley, 38 Mich. 537; 1 Greenleaf, Ev. (16 Ed.), sec. 441b; 1 Wharton’s Ev. (3 Ed.), see. 437; Wharton’s Crim. Ev. (9- Ed.), sec. 418. (a) In cases in which there is a conflict of the evidence upon the material facts, the question to an expert, otherwise qualified, must be framed hypothetically, (b) It is not necessary to assume by hypothetical question the state of facts in those cases in which the expert is personally acquainted with the material facts in the case, (c) In cases in which there is no conflict upon the material facts in the case, the opinion of an expert may be asked as to conclusions or inferences to be drawn from such facts without having them asked in a hypothetical question. Rogers on Expert Testimony, sec. 55; Woods v. Railroad, 181 Mo. 453; Redmond v. Railroad, 185 Mo. 14; State v. Klinger, 46 Mo. 228; Bowen ' v. Huntington, 35 W. Ya. 694; People v. Bowers, 18 Pac. 666; State v. Tippet, 63 N. W. 446 ; Page v. State, 61 Ala. 18; Smith v. State, 43 Tex. 647; Commonwealth v. Thompson, 159 Mass. 58; 5 Ency. Ev., 575-576; Indemnity Co. v. Dorgan, 59 Fed. 949; Simon v. State, 108 Ala. 27; Mobile Life Ins. Co. v. Walker, 58 Ala. 294; People v. Foley, 64 Mich. 153; Polk v. State, 36 Ark. 124: Peo ole v. Barker, 60 Mich. 291; State v. Smith, 52 Me. 369; Lexter v. Hall, 82 U. S. 26.. (6) The court did not admit hearsay evidence nor conversations between other persons not in the presence of appellant. (7) The court did not err in admitting the ’ testimony of Hugo Brecldein and other witnesses as to the sale of cyanide of potassium to Dr. Hyde, and the finding of cyanide of potassium in the stomach contents of Col. Swope. (8) The court did not commit error in permitting the witness Brecldein to sprinkle cyanide of potassium upon his fingers in the presence of the jury, and in permitting the witness Miss Van Nuys to smell the odor of the cyanide on his fingers. (9) There are no miscellaneous errors as to the admission or exclusion of evidence as contended by appellant. (10) There were no prejudicial statements made by either the prosecuting attorney, or his assistants, in their arguments before the jury. State v. Court, 225 Mo. 1. c. 616; State v. Whitsett, 232 Mo. 511. (11) The court did not mate improper comments on the la-w and the evidence during the trial of this cause. State v. DeWitt, 152 Mo. 86; State v. DeMoss, 98 Mo. 342; State v. Todd, 194 Mo. 391. (12) The court did not err in permitting special counsel for the State to make the opening statement and the closing argument. E. S. 1909, sec. 5231; State v. Coleman, 1991 Mo. 120 ; State v. Stark, 72 Mo. 37; State v. Eobb, 90 Mo. 30; State v. Taylor, 98 Mo. 240. (13) The court did not err in revoking appellant’s bond and committing him to the custody of the marshal during the trial of this cause. 3 Am. and Eng. Ency. Law (2 Ed.), 655', 664; Bacon’s Abridg. 581; 2 Hawkins’s P. C. 140; 5 Cyc. 72; People v. Beauchamp, 49 Cal. 42; Adkins v. Commonwealth, 98 Ky. 557; People v. Williams, 59 Cal. .676; State v. Baker, 125 N. W. (Ia.) 660'. (14) The' court did not err in overruling appellant’s objections to the hypothetical questions propounded to the State’s experts on the ground that said questions assumed facts not in proof, and excluded facts in proof. Lawson on Ex. and Op. Ev., 166, 261; Rogers on Exp. Test., sec. 27; Jones on Ev. (2 Ed.), sec. 371; Davidson v. State, 135 Ind. 261; People v. Hill, 116 Cal. 566; Railroad v. Wallace, 202 111. 133; Morrill v. Hershfield, 19 Mont. 248; Stearns v. Field, 90 N. T. 641; Jones on Ev. (2 Ed.), sec. 377; Underhill on Ev. 272. (15) The record in this case discloses a remarkable series of crimes,, actuated by a common motive, pursued with the same malevolent purpose, and committed by the same hand, with agencies which could only be employed by a doctor who was skilled in the use of poisons. The various crimes consummated and attempted are so inextricably woven together that it is impossible to properly investigate any one tragedy without considering all, each throwing light upon the other and having a direct bearing upon the particular felony under investigation. Learned counsel for appellant have filed a brief in which they seek to impress this court with the idea that defendant was tried for committing a number'of separate and distinct crimes. This they attempt to do by omitting the connecting facts, which when properly stated will demonstrate the inaccuracy of their conclusion.</p>

— Son. Jos. J. Williams, Judge. (1) The information is valid and sufficient, duly verified by the prosecuting attorney, and legally presents the charge of burglary and larceny under the statutes, and is in approved form. R. S. 1899, sec. 1886; State v. McGuire, 193 Mo. 215; State v. Helms, 179 Mo. 280; State v. Taylor, 136 Mo. 66; State v. Frazier, 220 Mo. 86; Kelley’s Crim.

Louis Court of Criminal Correction.— Eon. Wilson A. Taylor, Judge. Upon appellant’s suggestion, this cause was inadvertently transferred to this court by the St. Louis Court of Appeals. The áppeal was, in the first instance, taken to the .St. Louis Court of Appeals, where appellant appeared and suggested that the appeal involved the determination of a constitutional question, whereupon, and for that alleged reason, the cause was transferred to this court.

— Hon. G. A. Benton, Judge. (1) Tb.e court erred in giving to the jury the instruction on behalf of the State, authorizing the conviction of the crime of incest. There was absolutely no evidence to support this conviction.

— Hon. H. G. Riley, Judge. A bequest to a son-in-law, though he is not designated as such, is a naming of the daughter, within section 2611, of the act concerning wills. Hockensmith v. Slusher, 26 Mo. 237 ;■ Wood v. Drake, 135' Mo. 393. In the case at bar the testator referred to the father of the plaintiffs as his son-in-law, which clearly shows that he did not forget the children of his deceased daughter.

— Hon. J. T. Neville, Judge. (1) The court erred in permitting the plaintiff Tillery to take a nonsuit after verdict. . The statute itself is conclusive on this question. It heeds no construction, but only to be read, to be comprehended. R. S. 1899; sec. 639. The statute expressly provides for a special finding of facts by the court when requested by either party. The record shows that it was requested and made. R. S. 1899; see. 695.

— Hon. J. W. Alexander, Judge. (1) The language of the Act of February 22, 1851, under which defendant claims its personal property is exempt from taxation, must be taken in its ordinary and usual sense, and when so read, clearly refers to real estate and not to personal property. R. S. 1899, sec. 4160,- Standard Dictionary; Century Dictionary; 1 Cooley’s Blackstone (3 Ed.) 14; 18 Am. and Eng. Ency.

<p>1. MANDAMUS. Pleading: General Denial. A general denial in respondents’ return to an alternative writ in mandamus will be disregarded, as not a sufficient traverse of the writ’s allegations.</p> <p>2. -: -: Reply: Treated as Demurrer. Where relator’s reply to respondent’s return in mandamus does not raise an issue of fact, but prays the issuance of the peremptory writ, it may be treated as a demurrer to the return, and the cause considered at issue.</p> <p>3. APPEAL: Abstract: Affidavit: Sufficiency. It is not necessary to set forth in the abstract of the record proper the affidavit for an appeal in haeo verba or its contents, in order to entitle appellant to a hearing of his appeal in the appellate court. A statement in the record proper showing, in appropriate and unmistakable language and in narrative form, that the necessary steps to remove the case to the appellate court were taken, is a sufficient compliance with the statute and the rules of the court. A statement in the record proper, namely, that “afterwards on the 26th day of May, 1909, at said April term, 1909, of said circuit court, defendant filed its application and affidavit for appeal, and on the same day the court granted and allowed defendant an appeal to the Kansas City Court of Appeals, and approved the bond of said defendant for an appeal,” is a sufficient setting forth of the affidavit to invest the Court of Appeals with jurisdiction of the cause; and the Court of Appeals committed error in dismissing the appeal on the ground that “the abstract of the record proper does not contain the affidavit for appeal, nor its substance.”</p> <p>4. -: Wrongful Dismissal by Court of Appeals: Mandamus. ■ When a Court of Appeals has improvidently dismissed a ease appealed to -it, on the ground that the abstract of the record proper fails to show an affidavit for an appeal, whereas in fact the matters set forth therein show a sufficient compliance with the statute in that respect, the Supreme Court will compel said Court of Appeals, by its writ of mandamus, to exercise its jurisdiction to hear and determine the cause.</p>

Prohibition. (1) ■ The objection that the Wilson case did not land in the Federal court by filing the reinoval papers is not well taken. The filing of removal papers of itself accomplished the removal of the case to the Federal court for the present purposes. Black’s Dillon on Removal, sec. 198; Company v. Company, 3 S. D. 590; Wills ,v. Railroad, 65 Fed. 532; Brown v. Murray, 43 Fed. 614; Miller v. Tobin, 18 Fed. 609 ; Osgood v. Railroad, 18 Fed. Cas.

Prohibition. (1) It is alleged in the amended answer that defendant had been adjudged a bankrupt in the Federal court.

— Hon. J. W. Alexander, Judge. (1) If the plaintiff Anua M. Bushnell was importuned by Timbro ok to sign the 'deed of trust, and to induce her to sign he made the statement to her that these papers were to protect her husband against the prosecutions of the Bank of Dawn and to save him of this trouble, then her signature was «obtained by duress. Bell v. Campbell, 123 Mo. 1; Earl v. Norfolk, 36 N. J., Eq. 192.

Louis City Circuit Court. — How. ■ Darnel D. Fisher, Judge. (1) The court erred in refusing to grant the defendant a separate trial from its co-defendant, and further erred in refusing to allow defendant three peremptory challenges to the jurors upon the panel presented, from which the jury was selected which, tried this case. R. S. 1899, secs. 694 and 3783; Hunt v. Railroad, 14 Mo. App. 160; Hoyle v. Railroad, 103 Mo. App. 19'.

Louis City Circuit Court. — No». Daniel D. Fisher, Judge. (1) The rudimental relation of master- and servant is that it is a duty incumbent upon the master that he use ordinary care to see that the place where he orders the servant to perform work or service is reasonably safe for the servant to perform that service. Dayharsh v. Railroad, 103 Mo. 576; Herdler v. Stove Co., 136 Mo. 16; Doyle v. Trust Co., 140 Mo. 10; Burk-hard v. Rope Co., 217 Mo. 481.

— lion. Alonso D. Burnes, Judge. (1) The grantor, in the deed complained of, specified the ground which he was willing to give for a family burying ground, at the time he signed the deed. If the deed does not contain a description of the reservation of the then contemplated burial ground, no power exists in this court, or elsewhere, to compel him to make a new deed, or give something which did not go in the deed.

<p>1. VAGRANCY: Statute Constitutional. The statute concerning vagrancy (Sec. 4789, R. S. 1909) does not prohibit anyone from being without visible means of support, or from being idle, or from loitering around gambling houses, saloons, etc.; nor can any one of these things in and of itself and alone be punished as a crime. But when they all three meet in one person at the same time they constitute sucn person a vagrant, and under the statute he may be punished, and so interpreted the statute is constitutional.</p> <p>2. -: -: Indictment. An indictment charging that petitioner on a certain day “and on divers other days and times was found unlawfully loitering around houses of ill-fame, gambling houses, and place where liquors were sold and drunk, without any visible means of support,” charges a crime under the statute; and a petitioner who has been convicted thereunder cannot, on the ground that the statute authorizing said in.dictment is unconstitutional, be discharged upon a writ of habeas corpus.</p>

Francois Circuit Court. — Hon. Charles A. Killian, Judge. ' (1) The testimony of Popp, that he owned land in the same general neighborhood with defendant’s land, and similar to it in its availability for town or residence lots, and that its availability for said purpose was destroyed by the building- of the Chester, Perryville and Ste.

— Hon. E. W. Hinton, Special Judge. (1) The original petition in this case contains no claim for advancements, or interest on advancements. This petition was duly served upon the plaintiff in err-or, but the plaintiff in error being satisfied with any judgment which might he entered in accordance with the allegations and prayer of that petition, made default.

Louis City Circuit Court. — Hon. O’Neill Ryan, Judge. (1) The respondent must recover, if at all, on the strength of her own title. Ownership must be proved beyond, reasonable donbt. A preponderance of the evidence is not sufficient. Shaw v. Shaw, 86 Mo. 595; Brinkman v. Sunken, 174 Mo. 709; Ringo v. Richardson, 53 Mo. 385; Kennedy v. Kennedy, 57 Mo. 73; Adams v. Burrus, 96 Mo. 361; Philpot v. Penn, 91 Mo. 38; Oreentree Brewery v. Dold, 45 Mo. App. 603.

Louis City Circuit Court. — Now-. Daniel G. Taylor, Judge. (1) The rule is that if a plaintiff, in order to make out Ms cause of action, is required to show that the contract sued upon is for any reason illegal, the court should not enforce it whether pleaded as a defense or not.

Louis City Circuit Court . — Mon. Charles C. Allen, Judge. (1) The principal ground of the motion to quash in this case was based upon the theory that section 31 of the Act of 1907 regarding primary elections did not designate the offense charged in the indictment.

— Hon. Wm. C. Ellison, Judge. (1) Under the law in this State before a conviction for rape can be had, the evidence must show the fact of non-consent, and the exercise of all the means of resistance which, under the circumstances of the case and the condition of the mental faculties of the prosecutrix were within her power to make. State v. Cunningham, 100 Mo. 382; 10 Ency. Ev. 584.

Louis City Circuit Court. — Eon. Eugene McQuillin, Judge. This indictment simply avers that appellant at the time and place mentioned applied for and received a ballot in and upon a name “to these grand jurors unknown;” it does not aver that the name was not his own nor that it was the name of any other person; for aught that appears from the indictment, appellant may have applied for and received a ballot in and upon his own name; the fact that the name may have been “to…

<p>1. INFORMATION: Hog Stealing. An information charging that defendant and two others, on a certain day, “one hog, of the value -of fifteen dollars, belonging to Frank Ellison, then and there being found, unlawfully and feloniously did steal, take and carry away, contrary to the form of the statute,” ere., sufficiently charges defendant with hog stealing.</p> <p>2. INSTRUCTION: Principal: Theft as Abstract Proposition: Cured by Others. An instruction telling the jury that if they find “from the evidence that a hog was stolen at the time and place mentioned in the information, and further find from the evidence that the defendant was present, aiding and assisting in said larceny,” that he was guilty as a principal, is not incorrect as an abstract proposition of law, but should have been fuller and more specific; but if another instruction, which was a correct, full and explicit declaration of the law and facts, was given and there was no evidence of the theft of any other hog except the one belonging to the man named in the indictment as the owner, it was not reversible error.</p> <p>3. -: As Set Forth in Transcript and Bill. Loose pages found in the' transcript in which are set forth instructions having no meaning, will not be accepted as establishing that the instructions set forth in the bill of exceptions were not the ones actually given, where there was no suggestion in this court of a diminution of the record.</p>

— Hon. L. B. Woodside, Judge. The court erred in admitting secondary evidence of the contents of the note alleged to have heen forged, for the reason that there was no proper foundation laid for the introduction of such' evidence. “Ona prosecution for forgery the instrument alleged to have been forged must be produced at the trial, or its absence satisfactorily accounted for, before evidence can be given to prove the forgery, and, if the instrument is in the hands of the…

— How. W. N. Evans, Judge. The court erted in giving instruction 1.

— Hon. Henry L. Bright, Judge. (1) The court erred in refusing to give the instruction asked by defendant in the nature of a demurrer at the close of the State’s case. To establish its case, the State offered the testimony, of Bond, Hammond and Henderson, who were present at the time of the defendant’s arrest.

— Hen. John T. Moore, Judge. Where there is substantial evidence tending to support the verdict of guilty, this court will not interfere, but will defer to the finding of the jury and the trial court. State v. Smith, 1901 Mo. 706; State v. Payne, 194 Mo. 442; State v. Groves, 194 Mo. 452; State v. Williams, 149 Mo. 496-; State v. Swisher, 186 Mo. 8,

— Eon. F. G. Jolmsion, Judge. The verdict in this case is not based upon evidence, as there is no evidence to support it, but on the other hand was founded upon prejudice created by the admission of the testimony of the witness Gtalbreath, relating statements made by defendant’s grandson and conversations he had with other parties attacking defendant’s character and reputation in advance of any such issue being raised by defendant. This is a reversible error.

Appeal, from Shannon. Circuit Court. — Eon. W. A. Evans, Judge. (1) The court erred in refusing to give defendant’s peremptory instruction offered at the close of the evidence for both State and defendant. There is no evidence that the hogs killed and carried away by the defendant were the property of the prosecuting witness. Criminal intent is the principal element of the offense of larceny, whether the offense be grand or petit larceny.

— Hon. F. H. Trimble, Judge. (1) Appellant challenged the validity of the Local Option Law in so far as it prohibits traffic in beverages which contain alcohol, or are fermented, but which are not, in point of fact, intoxicating.

— Hon. Henry L. Bright, Judge. (1) There was no competent evidence in this case sufficient to support a verdict of guilty. One accused of a crime should not be convicted on a mere suspicion, or even a strong probability, of guilt, but the evidence should be clear.and convincing, fully satisfying the minds and consciences of the jury; unless it is so, the accused should be acquitted.

— Eon. Henry G. Riley, Judge. (1) When a justice of the peace, having in charge the examination of a person under arrest on a -charge of crime, issues his warrant of commitment and delivers it to the sheriff, the prisoner can he discharged on hail or otherwise only by a court or magistrate authorized to issue writs of habeas corpus. State v. Caldwell, 124 Mo. 509 ;' State v. Randolph, 26' Mo. 213; R. S. 1899, sec. 2469; R. S. 19Ó9, sec. 5048.

<p>APPELLATE JURISDICTION: Misdemeanor: Constitutional Question: Motion to Quash. Where defendant was convicted of a misdemeanor, and the only way any constitutional question* was raised was by a motion to quash the indictment, and defendant in his motion for a new trial did not call the attention of the court to the alleged error in overruling his motion to quash, there remains no constitutional question in the case, and the Supreme Court has no jurisdiction of the appeal. A motion to quash is not a part of the record proper, and rulings thereon cannot be reviewed on appeal unless an assignment of them as error is made in the motion for a new trial.</p>

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. The act known as “An act to provide for party nominations by direct vote,” Laws 1907, p. 263, does not contain in its caption or title any reference to any penalties which, are suggested by the State as being fixed in the body of the act.

— Son. Ralph S. Latshaiu, Judge. The fact that the illicit relations between appellant and the prosecuting witness continued more than three years prior to the filing’ of the information does not affect the case. These relations continued, at least, until the latter part of 1906, about two years before the information was filed.

Court. — So A. Henry C. Riley, Judge. (1) Some cases go to the extent of holding that it is permissible for the State to prove declarations and acts of one of the parties made and done in the absence of others, before proving the conspiracy, but the conspiracy must be afterwards proved and the declarations and acts of the co-conspirator must be about and concerning the offense for which defendant is being tried.' State v. Eoss, 29 Mo. 32; State v. Nell, 79 Mo.

— Won. WugU Dabbs, Judge. (1) The interest devised to Clyde B. Lanyon under the will of his father vested immediately on the death of his father. Redell v. Collier, 40 Mo. 287; Bum v. Prance, 131 Mo. 63; Simmons v. Cabanne, 177 Mo. 336; Chew v. Keller, 100 Mo. 362; Lippincott v. Stottseberg, 47 N. J. Eq. 21. When devises or legacies have once vested, they will not be divested by any doubtful implication.

<p>INJUNCTION: Complied With After Appeal: Merits Not Considered. Where citizens of St. Louis county brought injunction against the city of St. Louis, to enjoin the city from shutting off water from the city’s water works, from which they had for some time been obtaining water for their residences and other property, and lost in the trial court, and appeal, and after their appeal the city, at their request and in pursuance to legislative authority granted by the State, enacted ordinances authorizing water to be continued to be furnished to them, on terms acceptable to them, and said ordinances are properly and without objection before the court, the - appeal will be dismissed; for, conceding appellants are right in their contention that the arrangement between them and the city, by which the city for years supplied them with water, amounted to an irrevocable license, they would gain nothing by a decision so holding, since the ordinance grants them all they could obtain by a decree, and therefore the ease is purely a moot one.</p>

<p>Appeal from St. Louis City Circuit Court.— Hon. Matt G. Reynolds, Judge.</p>

<p>Appeal from St. Lonis City Circuit Court. — Now. Matt G. Reynolds, Judge.</p>

<p>Appeal from St. Lonis City Circuit Court. — Hon. Matt G. Reynolds, Judge.</p>

— Hon. Henry L. McCune, Judge. (1) Tlie court erred in refusing to give defendant’s demurrer offered at the close of plaintiffs’ evidence and renewed at the conclusion of all the evidence.

<p>1. JUDGMENT: Revivor: Barred: No Contest: No Appeal. A judgment reviving a judgment more than ten years old, which was contested and from which no appeal was taken, is valid and cannot be contested in a suit, brought by the plaintiff therein and the purchaser thereunder, to set aside a deed made by defendant to hinder and delay his creditors.</p> <p>2. CONVEYANCE: Delivery: For Purposes of Suit. A delivery of a deed, to take effect as a conveyance of land, must be with the understanding, on the part of both grantor and grantee, that it is the consummation of the conveyance. The one must give it with the unequivocal intention of parting with the title conveyed, and the other must receive it with the intention of taking such title. So that where the sheriff, at execution sale, sold for $10 land to plaintiff, who paid him only $5, and retained the deed, without recording it, until the day of the trial of plaintiff’s suit to set aside a deed to the same land made by one of the defendants to the others to delay and hinder creditors, and then gave it to plaintiff in order that he might use it for the purposes of this suit, it being understood by both that plaintiff was to pay the amount of his bid before he was entitled to the deed, there was no such delivery as showed title in plaintiff.</p> <p>3. FRAUD OF GRANTEE: Protecting Own Interest. If the only object of the grantees was to protect their own valid interests, they are not chargeable with fraud, even if fraud could be charged against their grantor.</p> <p>4. PREFERRING CREDITORS. An insolvent debtor is allowed to prefer a creditor even when his object is thereby to prevent another creditor from collecting his debt; and the preferred creditor, although he may know of the fraudulent purpose of his debtor, is not chargeable with fraud, if his only motive is the securing of his own debt.</p> <p>5. FRAUDULENT CONVEYANCE: Consideration. Whether advances made to a debtor by his brothers and sisters, after he became of age, to pay for his education and to establish him in business, made out of products arising from their father’s farm entrusted to them, be considered as debts he owed his father’s estate, or as the motive that induced him to agree with them to relinquish his interest in the farm, the -effect is the same as constituting a consideration for the deed to them assailed as being in fraud of his other creditors.</p> <p>6. -: -: Pleaded by General Denial. Where the petition charges the deeds were executed without consideration and for the purpose of defrauding plaintiff in the collection of his judgment, defendants are authorized, under their general denial, to prove those allegations were not true, and hence that the deeds were supported by a valuable consideration.</p>

Louis City Circuit Court. — Eon. W. B. Eomer, Judge. (Í) The plaintiffs’ petition was not multifarious for the reason that it joined numerous defendants who claimed distinct and separate parcels of land, unconnected from the other defendants, for the reason, as set forth in plaintiffs’ reply, that the defendants all claim title to the property described in plaintiffs’ petition through a common source, and that plaintiffs claim the same property by a paramount title to that…

— Hon. J. L. Fort, Judge. (1) There is no question as to the right of the Dexter Improvement Association to make such conveyance as was made in this case. The conveyance was strictly within the scope of the authority conferred by its charter, but if it were otherwise, the question of its being an ultrai vires contract could not he raised under the pleadings and facts in this case.