Volume 239 — Missouri Reports

— Hon. Argus Cox, Judge. (1) The plaintiff was not a competent witnéss as to any facts relating' to tire Illinois decree of divorce, the other party to the cause of action being dead. R. S. 1909, sec. 6354; Bishop v. Investment Co., 129 S. W. (Mo.) 668; Patton v. Fox, 169 Mo. 97. (2) Judgments of foreign courts are conclusive in Missouri as to all questions involved therein. 13 Am. and Eng. Ency.

Certiorari. (1) The Republican City Central Committee has no power, jurisdiction or authority to remove any of its officers after the organization of the committee by election of such officers under the provisions of Sec. 5880, R. S.. 1909'. State ex rel. v. Miles, 210’ Mo. 127; See State ex rel. v. Lucas, 236 Mo. 18.

Prohibition. (1) It is elementary that when an original bill is dismissed before final hearing, a cross-bill filed by a defendant falls with it. Cross, v. De Valle, 1 Wall. (U. S.), 14; Dows v. Chicago, 11 Wall.

Prohibition. (1) The cirncit court has no jurisdiction, because: (a) the service of process was insufficient; and (b) the courts of Missouri have no jurisdiction over foreign insurance companies in causes of action arising out of business clone in other States with citizens of those States. Sec. 7042, R. S. 1900; Insurance Co. v. French, 18 How. (U. S.) 404; St. Clair v. Cox, 106 U. S. 350; Life Ass’n v. McDonough, 204 U. S. 8; Hunter v. Ins. Co., 218 IJ.

Circuit Court. — Eon. Wm. G. Ellison, Judge. (1) The law does not require the running of trains on Sunday, because Sunday is not specifically named, and the words “every day” do not include Sunday for following reasons: (a) In computing time, Sunday is not counted as a day in legal proceedings. State v. May, 142 Mo. 149'; Jordan v. Railway, 92 Mo. App. 85.

Prohibition. (1) The allegations of the application for the writ of habeas corpus were insufficient to confer jurisdiction upon the court to issue said writ; for the reason that it is not alleged… Held: in the case of Ex parte Brockman, that the relator could set up any facts in answer to the return additional to those set up in the petition which would justify the issuance of the writ, and such seems to be the holding of the courts generally.

Mandamus. (1) The court will take judicial notice of the time the stated terms of court commence and the date when the motion was filed, that is, the eighteenth day of May,' 1910, excludes the idea that the court was in session at the next term after the judgment term, as the times fixed by statute for the terms of the circuit court of Adair county are the third Monday in May and the fourth Monday in October, hence the court could not on any date in May or June, 1910, have…

Louis City Circuit Court. — Eon. George E. Shields, Judge. (1) The contract of June 15 was fraudulent as to prospective purchasers. This contract contemplated turning over property to the corporation hy the promoters, at a sum of two or three times its actual cost, without disclosing its real cost to the purchasers of bonds and stock.

— TIon. W. W. Graves, Judge. . (1) An abstracter having omitted an instrument from his abstract ought not to be allowed to set up a claim under such instrument against one who was misled by his omission. Pomeroy, Equity Jurisprudence (2 Eel.), secs. 1047, 1053; Clark v. Bank, 57 Mo. App. 277; Bircher v. Sheet Metal Ornament Co., 77 Mo. App. 509; Deal v. Bank, 79 Mo. App. 262; Harrison v. Murphy, 106 Mo.

— No,n. Joseph D, PerJtins, Judge. (1) The court committed error in permitting the prosecuting attorney to indorse the name of the juror Miller upon the information, and then excusing him from the panel of jurors. (2) It was error to permit the witness Walker to testify to having seen defendant and Cannon talking together frequently.

— -Hon. Argus Cox, Judge. (1) The evidence shows conclusively that no part of respondent’s money was used in the purchase of the lot on which the hotel was afterward erected and no trust could arise by operation of law in favor of respondent. Kelly v. Johnson, 28 Mo. 249; Sell v. West, 125 Mo. 631; Weiss v. Heitkamp, 127 Mo. 31; Richardson v. Champion, 145 Mo. 544.

<p>The facts in this case are the same as those in the case of Wrights-man v. Rogers, ante, p. 417, and this case is decided upon tn« authority of that.</p>

<p>CARNAL KNOWLEDGE: Attempt to Ravish: Intent: Instruction. Where defendant took a girl thirteen years of age to a rooming house, and while she was on a bed, got on top of her, with his private parts exposed, her drawers being down, but made no attempt at penetration, and there was no dampness or wetness on her legs, and after two or three minutes he got up, buttoned up his trousers and went away, the court should have instructed the jury that if the acts were done by defendant without the intention of having carnal knowledge of her, then they did not constitute an assault to commit a rape. Under the circumstances the jury should have been permitted to say whether or not the defendant had the intent to ravish the girl.</p>

<p>Appeal from Jackson Circuit Court. — Hon. Hermann Brumbach, Judge.</p> <p>(1) The action of the court below was not justified by the statute, (a) While the lower court issued a commission, it was directed to a notary public in Illinois. His power to act or to compel the attendance of, or the giving of testimony by a witness was wholly dependent upon the law of that State. Rapalje on Contempt, sec. 7; Wharton on Conflict of Laws, sec. 723; Martin v. People, 77 111. App. 311; In re Bushnell, 44 N. Y. Supp. 257, 19 Mise. 307; Spanish Consul’s Petition, 1 Ben. 225; 22 Fed. Cas. 854. No proof was offered of any Illinois statute upon the subject, and it has been there explicitly decided that .neither the notary nor court in Illinois can compel a witness to attend or testify before him. Martin v. People, 77 111. App. 315; Puterbaugh v. People, 131 111. 199. (b) Here the court below issued no order to appellant. He was not asked to appear before it. The order was from a notary in Illinois and under the rule there prevailing, whether or not he there appeared was solely a matter of voluntary action. Hawes on Jurisdiction, see. 223; Rapalje on Contempt, sec. 13. As the defendant was at the time without the State and beyond the reach of process of the court below, that court had therefore neither power nor jurisdiction to deal with him. In re Allis, 44 Fed. 216; Larimore v. Bobb, 114 Mo. 446. The reason for that rule is that no court can be empowered to act in matters beyond its territorial jurisdiction, (c) The statute (Sec. 6361), when properly construed, should not, therefore, be extended to the refusal to testify in another State. Its language is that if he refuses to testify then “besides being punished himself as for a contempt,” his answer may be stricken out. Hnless, therefore, he could have been by the court below punished as for a contempt, Ms answer conld not be stricken ont. The statute did not justify the action of tbe court below. That a Missouri statute was not intended to empower a Missouri court to deal with, or punish, for an act done in Illinois, is apparent from a slight review of the authorities. 13 Am. & Eng. Ency. Law (2 Ed.), 1051,1054; 22 Ibid. 1319; Hilton v. Guyot, 159 U. S. 163; Cooley on Constitutional Limitations (6 Ed.), 149; Sedgwick on the Const, of Stat. and Const. Law (2 Ed.), 56', 57; Story on Conflict of Laws (7 Ed.), secs. 7, 8. (d) Moreover, if the statute could be applied, it was an abuse of discretion to strike out the answer and render judgment. (2) The statute, if applicable, fails to accord to defendant due process of law, as guaranteed by the Fourteenth Amendment to the Constitution of the United States. Hovey v. Elliott, 167 U. S. 409; McVeigh v. United' States, 11 Wall. 259; Calder v. Bull, 3 Dali. 388; Bonaker v. Evans, 16 Ad. & E. 170; Capel v. Child, 2 Cromp. & J. 574. This doctrine has been frequently reaffirmed and applied. Golpin v. Page, 18 Wall. 350; Bennett v. Bennett, 208 U. S. 505; Fayerweather v. Ritch, 88 Fed. 719; The Fred M. Lawrence, 94 Fed. 1017, 1018; In re Parvine, 96 Fed. 197; In re Rosser, 101 Fed. 567; Mercantile Nat. Bank v. Hubbard, 105 Fed. 813; In re Mayer, 108 Fed. 599; Hendryx v. Perkins, 114 Fed. 825; Young, etc. Co. v. Brande, 162 Fed. 664; Sibley v. Sibley, 76 N. Y. App. 132, 78 N. Y. Supp. 745; McClatchy v. Superior Court, 119 . Cal. 413, 51 Pac. 699; Foley v. Foley, 120 Cal. 33; Younger v. Superior Court, 136 Cal. 682, 69 Pac. Rep. 486; Greig v. Ware, 25 Colo. 184; State v. Clancy, 24 Mont. 359. The notary had no power to force him to testify, nor to protect Mm from an inquisitorial examination, never asked him a question or sought to coerce his attendance.</p> <p>(1) In the following eases pleadings were stricken ont for failure to appear and give testimony on behalf of an adversary, and the action of the trial' courts in so doing upheld: Larimore v. Bobb, 114 Mo. 446; Snyder v. Raab, 40 Mo. 166; Haskell v. Sullivan, 31 Mo. 435; Carr v. Dawes, 46 Mo. App. 351. (2) It nowhere appears, nor has there been any attempt to make it appear, that defendant had any good cause or excuse for refusing to testify; nor does it anywhere appear, nor has there been any attempt to make it appear that he had any meritorious defense to plaintiff’s cause of action. (3) The statute in question applies to this case, notwithstanding defendant resided in Illinois and it was sought to take his deposition in that State, (a) It is true there was no proof that under the laws of Illinois a notary public may compel the appearance of a witness; or that he could not do so. But, for the purposes of this case, it is wholly immaterial what may be the laws of Illinois in that regard. The deposition was not to be taken under the laws of that State, nor for use in the courts of that State, but under commission duly issued under the laws of this State, for use in a case pending in a circuit court of this State. The commissioner did not undertake to attach the defendant nor to punish him for contempt; , hence, it is wholly immaterial whether he did or did not have power to do so. (b) Defendant’s next contention is, that as he was beyond the territorial jurisdiction of the court, it had “neither power nor jurisdiction to deal with him.” If it be conceded that the court had no power to “deal with him,”- — that it had no power to fine or imprison him, yet it had jurisdiction . of the case, and had power to deal with it. Plaintiff had a right — a legal, substantial, valuable right — to procure and have for use in the suit, tlm defendant’s testimony. Defendant had no legal or moral right to deprive him thereof. It was not only within the power of the court, but it was its duty, to see that defendant did not unjustly or wrongfully deprive him of that right, (c) The next contention is that the statute does not extend to a refusal to testify in another State. This contention overlooks the fact that our laws guarantee to any party to a suit pending in our courts, the right to have and use the testimony of his adversary, wherever he may be. And, recognizing that an adversary may sometimes, through stubbornness or meanness or personal ill-will, or for some other unjust and inexcusable reason, deprive the other party to the suit of his just and lawful right in that regard, our laws also provide a means for the protection of that other party; and, in applying and enforcing that statutory right, the court is dealing with a case over which it has jurisdiction. If this were not the law, how easy it would be in some cases, for a party to a suit to use our courts of justice as instruments of wrong-doing. In the consideration of this point, it must be remembered that defendant was in court, (d) Defendant’s next contention is that if the statute can be applied in this case, it was an abuse of discretion to strike out the answer and render, judgment. As hereinbefore stated, it does not appear that defendant had, or pretended to have, any good cause or excuse for refusing to testify, nor was there -any showing nor any claim that he had any meritorious defense to plaintiff’s cause of action. If there had been any such claim or showing, the action of the court might have been different. Not only was there no showing or claim of meritorious defense, but, before judgment, “ plaintiff introduced evidence tending to prove all the allegations of his petition.” See the second point in this brief. But defendant suggests that there was no showing that the deposition was to be taken for use, and that he was not given permission to appear and testify under proper protection. There certainly can be no presumption that plaintiff was not acting in the utmost good faith; and it is perfectly apparent that defendant must have been possessed of actual knowledge touching the alleged contract sued on, as he was party thereto. Touching defendant’s suggestion that he was not given permission to appear and testify under proper protection, we suggest that it does not appear that he was in need of any protection, nor is there any claim or showing that he was willing “to appear and testify under proper protection,” or under any circumstances or conditions. (3) Defendant was not deprived of his property without due process of law. The case of Hovey v. Elliott, 167 IT. S. 409, is easily distinguishable from this. If defendant had any meritorious defense, or if he had any good reason to believe that a new trial would have resulted differently, or been of any benefit to him, it was his duty to make some showing or claim to that effect. Haskell v. Sullivan, 31 Mo. 435; Carr v. Dawes, 46 Mo. App. 351. See, also, Packing Co. v. Arkansas, 212 U. S. 322; Mayer v. Peabody, 212 U. S. 78; 22 Am. & Eng. Ency. Law, 1257; Kirby v. Tallmage, 160 U. S. 379; Pac. S. S. Co. v. Bancroft-Whitney, 94 Fed. 198; Brent v. Lewis, 88 Mo. 462; Pomroy v. Benton, 77 Mo. 87; Mun-ford v. Wilson, 19 Mo. 669; Ecton v. Ins. Co., 32 Mo. App. 61; Brake Co. v. Mfg. Co., 19 Fed. , 520; Baldwin v. Whitecomb, 71 Mo. 658; Mabary v. McClung, 74 Mo. 591; Conn. Ins. Co. v. Smith, 117 Mo. 261; Henderson v. Henderson, 55 Mo. 534; Cass Co. v. Greene, 66 Mo. 498; Leeper v. Bates, 85 Mo. 224; 16 Am. & Eng. Ency. Law, 1090. (4) The statute is not unconstitutional. The statute in question has been in force since the revision of 1835' — more than seventy-five years. It has many times been resorted to by litigants and enforced by trial courts with the express approval of the Supreme Court and of the Courts of Appeals of this State. In view of the universal acceptance and acquiescence of the bar and the courts of this State in its constitutionality, it ought not, at this late day, when questioned for the first time by one who shows no just excuse for depriving his adversary of his testimony, and who shows no meritorious defense, to be held unconstitutional. Rhodes v. Bell, 230 Mo. 138;' Venable v. Railroad, 112 Mo. 103; State ex rel. v. Laughlin, 75 Mo. 147; Shipp v. Clinger, 54 Mo. 239; Standard Oil Case, 194 Mo. 124.</p>

— lion. David II. Eby, Judge. (1) Atkinson had no interest in the land since bis indebtedness to the estate of Gertie M. Chamberlain exceeded what would have been his share in said estate. Leitman v. Leitman, 149 Mo. 112; Ayres v. King, 168 Mo. 244; Trabne v. Henderson, 180 Mo. 625; Duffy v. Duffy, 155 Mo* 144.

<p>Appeal from Linn Circuit Court. — Nora. John P. Butter, Judge.</p> <p>(1) It is negligence to liang a gate so that when open it swings over and on the sidewalk. Decatur v. Hamilton, 89 111. App. 561; Bohen v. City of Waseca, 32 Minn. 176; Jerrell v. Wilmington, 56 Atl. (Del.)' 379; Berling v. Brooklyn, 120 N. Y. 93; Hume v. New York, 74 N. Y. 264; Mansfield v. New York, 119 App. Div 199; Kelley v. Kansas City, 69 Mo. 102; Barr v. Kansas City, 105 Mo. 550. (2) Instruction 7 is erroneous and should not under the evidence have been given. It was prejudicial to plaintiff and reversible error. Clark v. Brookfield, 97 Mo. App. 16; Deland v. Cameron, 112 Mo. App. 708; Cropper v. Mexico, 62 Mo. App. 388; Mans v. Springfield, 101 Mo. 613; Sneed v. Salesbury, 94 Mo. App. 429; Huff v. Marshall, 97 Mo. App. 547; Young v. Webb City, 150 Mo. 342; Market v. St. Louis, 56 Mo. 188; Shipley v. Bolivar, 42 Mo. App. 401.</p> <p>(1) If the gate was properly constructed, in reasonably good repair, and afforded, when closed, a reasonably safe sidewalk for public use, it was not a nuisance per se. Fehlkauer v. St. Louis, 178 Mo. 635; Stoetzelle v. Swearingen, 90 Mo. App. 588. (2) Instruction 7 was proper, as there was no evidence of actual notice, nor was there any evidence from which actual notice could be inferred. (3) And plaintiff recognized the fact that to allow him to recover, it was not necessary for him to prove actual notice to the city, and so told the jury by instruction 7, given at his request as follows: “And if the jury further believe, from the evidence, that the city of Chillicothe through its proper officers knew, or by the exercise of ordinary care would have known of the existence of' said gate.” So, too, did the court instruct the jury by instruction 8, given on behalf of defendant, which was a proper question for the jury. Carrington v. St. Louis, 89 Mo. 208; Eeedy v. Brewing Ass’n, 161 Mo. 541; Goodman v. Kahoka, 100 Mo. App. 278.</p>

<p>1. ACCRETIONS: River as Boundary: Title. A running stream forming the boundary between lands otherwise contiguous, continues to be such boundary line, although the channel may ■ change, provided the change is by the gradual erosion and cutting away of its banks, and not by a sudden leaving of the old channel and the forming of an entirely new and different channel. And where the plaintiff owned land that was bounded by a running stream, and the stream gradually cut away a part of it and formed it on the other side of the stream up against defendant’s lands, the defendant is entitled to all additions to his lands along the river so made, as accretions thereto, though such “made” land comes within the descriptions contained in plaintiff’s deed at the time he purchased.</p> <p>2. -: Length of Time in Forming: Identity. In determining whether a riparian owner has title to land by accretion, the length of time in which it was forming is not important. If it was formed by a gradual, imperceptible deposit of alluvion, it is accretion, and becomes a part of the land against which it 'is deposited; but if the stream changes its course suddenly and in such manner as not to destroy the integrity of the land or so that the land can still be identified, it is not accretion and the boundary line remains the same as before the change of the channel.</p>

<p>1. INDICTMENT: Voter: Fraudulent Attempt to Vote. An indictment which charges that the defendant, whose name is James Holmes, “unlawfully, feloniously, willfully, knowingly, falsely and fraudulently did then and there offer and attempt to register under a name not his own, to-wit, under the name of Joseph Hanley,” etc., sufficiently charges that defendant attempted to register under a name not his own.</p> <p>2. INSTRUCTIONS: Abstract Proposition: Singling Out Part of Evidence. The trial court did not err in refusing the four instructions asked by defendant which are set out in the opinion. Number 4 was an abstract proposition without any explanation as to how the jury could apply it to the facts. Number 3 is not a correct statement of the law. Those numbered 1 and 2 single out portions of the evidence to the exclusion of the rest, which is not proper.</p> <p>3. VOTER: Attempt to Register Under False Name: Evidence. Appellant entered a polling place, told a judge of election that he wished to register, and then gave a false name. A clerk wrote the name in the original registration book. When defendant gave his address it was objected to as being the number of vacant property, and he left to go, as he said, and see what the number, was. Held, sufficient facts to show an offer or attempt to register as contemplated by Sec. 4441, R. S. 1909.</p> <p>4. -: Application for Registration. .The application to register contemplated by Sec. 6154, R. S. 1909, is the presentation of one’s self at the place of registration with the request to be registered.</p>

— Now. Geo. W. Wana/maker, Judge. (1) The motion to quash the information should have been sustained.

— Now. John T. Moore, Judge. Tlie following clause of the will, to-wit, “I will and bequeath to my wife Sarah Jane Gibson all of my property, real, personal and mixed wherever the same may be situated, with the power to sell, control, manage and dispose of in the same way that I might do if living,” vests in the said Sarah Jane Gibson the absolute power of disposition. That being true, at the death of the testator she became the owner in fee simple of the property.

<p>MANSLAUGHTER: Heat of.Passion: Self-Defense: Instruction. Defendant was convicted of murder in the second degree for killing deceased •with a knife. According to his own testimony, defendant, after being called vile names, was suddenly and violently assaulted, knocked down and was being choked when he drew his weapon and struck the fatal blow. Held, that the trial court committed reversible error by refusing to give an instruction on manslaughter in the fourth degree. Defendant’s testimony was evidence of lawful and reasonable provocation sufficient to engender that heat of passion which would reduce the offense to manslaughter. The jury should have been left to say whether that testimony was true, and then, if they found it true, to decide whether such provocation actually engendered such heat of passion and precluded malice. And the fact that self-defense was sought to be shown does not, in this kind of case, render unnecessary such instruction on manslaughter.</p>

— Row. Francis R.' Trimble, Judge.. In ejectment plaintiff must recover, if at all, on the strength of his own title, and not because of any weakness or want of title in the defendant. Large v. Fisher, 49 Mo. 307; Funkhouser v. P'eck, 67 Mo. 19; Siemers v. Schrader, 14 Mo.

— Eon. W. N. Evans, Judge. It is a well settled rule of law, both in criminal and civil cases, that an instruction which purports to cover the whole case and directs a finding must embrace all the issues and the law applicable to them. It is but a corollary of this proposition that such an instruction in a criminal proceeding must not ignore any essential element of the offense charged, and that it cannot be pieced out by the contents of other instructions.

— How. Wm. C. Ellison, Judge. (1) The court erred in overruling defendant’s application for a change of venue. State v. Goddard, 146 Mo. 181; State v. Streight, 138 S. W. 742. (2) The court erred in overruling’ defendant’s motion for a continuance.

<p>Appeal from Pemiscot Circuit Court. — Ho». H. G. Riley, Judge.</p>

<p>1. INDICTMENT: Indorsement of Names of Witnesses: New Witnesses at Trial: Notice to Defendant. The names of eight witnesses were indorsed, on the indictment. During the examination of the talesmen on their voir dire the State’s attorney, in open court and in the presence of defendant and his' counsel, read the names of those eight witnesses and announced that there were six others, naming them, who were witnesses. A recess was taken until 2 p. m., when the jury was sworn and one of those whose names were on the indictment testified merely about the locality of the crime charged and then as an expert. No other witness whose name was indorsed on the indictment was called, but five of the six others named during the voir dire were called, and, over defendant’s objections and exceptions,testified in the case. The name of no witness who testified to the facts constituting the offense charged was on the indictment. Held, that the court did not err in admitting the testimony of the new witnesses. The defendant, if he desired to raise the question at all, should have demanded a reasonable time to meet the testimony of the witnesses mentioned when apprised, before the jury was sworn, of the State’s intention to call them. The new witnesses testified to the identical offense charged in the indictment.</p> <p>2. -: -: -: Unfair Advantage not Allowed. The State will be allowed to take no unfair advantage of a defendant by intentional concealment of its witnesses.</p> <p>3. -: No Names of Witnesses Indorsed. When defendant is advised in advance (for instance, by an entire fáilure to indorse the names of any witnesses) that the State is not fighting in the open, and yet elects to enter the contest under such conditions, he cannot, for the first time, after being defeated, Complain.</p> <p>4. INSTRUCTIONS: Every Element of Offense: Reasonable Doubt. An instruction which sets out the facts necessary to constitute the offense charged and tells the jury that if they find these facts they shall find the defendant guilty, is not erroneous because it omits the element of reasonable doubt. Reasonable doubt is fully covered in another instruction. It is not necessary to append to every instruction a clause announcing the rule that the jury must be convinced beyond a reasonable . doubt before they can convict.</p> <p>5. -: Evidence: Joint Offense. Defendant was convicted of having set up and kept a crap table and having induced, enticed and permitted divers persons to bet and play thereon. The game was played in a building occupied by a club of which defendant was a member. There was evidence that defendant was nearly always in attendance, that he “cut” a nickel on every bet and delivered this “rake-off” to the president or the general manager of the club’s affairs, who appeared at intervals to receive it. Held, that, under such circumstances, instructions cannot be attacked which submitted the case on the theory that defendant acted in concert with others in committing the offense charged.</p> <p>6. GAMING DEVICE: Setting up and Keeping: Charged and Tried as Continuing Offense: Players Named in Indictment: Proof: Instructions. The offense of inducing, etc., persons to bet and play on a gambling device set up and kept by defendant is charged in the indictment as a continuing offense; it is such by nature, and it was tried as such. Therefore, it cannot be said that, because the names of some of those who played were set out in the indictment, the court in its instructions should have told the jury that unless they found defendant guilty as of the particular time when the named persons played, they should acquit him, nor can it be said that the court should not have instructed the jury (as it did) to return a verdict of guilty if they found defendant had set up and kept the crap table at any time within three years prior to the return of the indictment. No motion to elect was made and no instruction was asked restricting the jury to a particular time.</p> <p>?. CONTINUING OFFENSE: How Charged and Proved When No Abatement. An offense continuous by nature may be charged as of one day and proved as a continuing offense provided no abatement is directly sought.</p> <p>8. -: Indictment: Continuando. That fragments of a formal continuando appear in the indictment is of no consequence, and they may be treated as surplusage if the offense is continuing in its nature and therefore provable under a simple .charge as of a particular day. '</p> <p>9. KEEPING GAMING DEVICE: Instructions: Mere Presence as Player. The trial court’s failure to give a specific instruction that defendant could not be convicted if he did no more than participate in the game as a player, was not reversible error under the circumstances of this case. The jury was told by other instructions that the mere presence of a person at the scene of an offense did not justify his conviction as a principal, and that it was sufficient “if the evidence satisfied the jury beyond a reasonable doubt that the defendant, or other persons acting jointly with him, had charge of and control of” the device.</p>

<p>1. APPEAL: Motions for New Trial and in Arrest: One Ruling: One Exception. Where the record shows only one ruling of the trial court overruling appellant’s motion for a new trial and his motion in arrest, one exception to such ruling is sufficient.</p> <p>2. -: Motions to Strike Out Parts of Petition or Answer: Not Preserved in Bill or Assigned in Motion for New Trial. The action of the trial court in overruling defendant’s motion to strike out the innuendoes contained in the petition in a libel suit, and in sustaining plaintiff’s motion to strike out a part of defendant’s answer, if neither of said motions is incorporated in the bill of exceptions or made a ground of the motion for a new trial, will not be reviewed on appeal.</p> <p>3. LIBEL: Definition. Sec. 4818, R. S. 1909, .defining libel, although a part of the Criminal Code, is applicable to civil cases.</p> <p>4. -: Pleading: Innuendo: When Other Allegations Necessary. If the publication is not libelous per se, then not only is an allegation of an innuendo to show the defamatory sense in which the language was used necessary, but there must also be an allegation by way of inducement to support the meaning ascribed by the innuendo. The innuendo cannot be looked to for allegations of fact, but allegations essential to the state- ■ ruent of a cause of action, in addition to the publication, must appear by way of inducement or colloquium. But no allegation of either innuendo or inducement is necessary where the publication is libelous per se, as was the publication in this case.</p> <p>5. -: Publication Libelous per se. The publication stated that plaintiff was making an address at a cattlemen’s association on the subject, “Honesty is the Best Policy;” that in the midst of his address the sheriff appeared and “served him with a summons to answer a civil action, brought by Clem Graves to recover $10,000 damages arising from an alleged fraudulent cattle transaction;” and then proceeds to set forth the salient allegation of Graves’s bill, and ends by saying a man, once respected and honored, lived in the town where plaintiff did, “who couldn’t buy a bar of five-cent soap in the town to-day, without paying cash,” and that plaintiff “likely had this offender in mind while making his talk.” Held, that the publication was libelous per se.</p> <p>6. -: Evidence: Relevant Matters. Where the publication states plaintiff had been served with a summons in an alleged fraudulent cattle transaction and that he had thereupon taken the benefit of the bankrupt law, and defendant alleges the truth of those statements, it is proper to permit plaintiff to prove the loss of the cattle by disease and to show that his bankruptcy was the result of causes beyond his control.</p> <p>7. —-: -: Plaintiff’s Standing: Specific Details. Testimony of plaintiff’s general standing, financially and socially, may be given in evidence in a libel suit, but he is not to be permitted to go into details of his life or prove specific instances upon that issue — for instance, where the publication charged plaintiff with having been sued upon an alleged fraudulent cattle transaction, testimony as to a testimonial sale of cattle given for his benefit by the citizens of the town where he formerly lived is incompetent. But in this case, such improper testimony is held not to have prejudiced defendant in its substantial rights on the merits.</p> <p>8. -: Demurrer: Practice. Where the publication was libelous per se, and much conflicting testimony was introduced upon the issues raised by the answer, the case should have gone to the jury, and the court did not err in overruling a demurrer to the evidence.</p> <p>9. -: Instructions. Where the instruction sets forth the alleged libel, and that is followed by the statutory definition of libel, and then tells the jury that if they believe and find from the evidence that the article falls within the definition so given, then the article is libelous under the statute, it complies with and follows the law of libel.</p> <p>10. -: -: Truth of Publication. .An instruction defining libel is not erroneous for that it ignores the issue of the truth of the publication as made by the answer. The statutory definition of libel does not make the falsity of the publication a part of the definition. Neither is it necessary for plaintiff to prove its falsity as a part of his case, for that is presumed.</p> <p>11. -: -: Justification: Every Charge. It is proper in a libel suit to instruct the jury that it is incumbent upon defendant, under its plea of justification, to prove the truth of all the alleged statements in the publication, and that if it has failed to prove the truth of any one charge and such charge is libelous, then the verdict must be against such plea. 12. -; -: -: Burden of Proof. Nor is the burden of proof, in such case, upon the plaintiff upon each issue submitted.</p> <p>13. -: Excessive Verdict: $10,000. There being no award of punitive damages, and nothing to show prejudice or passion on the part of the jury, the evidence is reviewed and it is held that a verdict for $10,000 in this case is too large by $4,000.</p>

<p>1. MEASURE OF DAMAGES: Coal Mining: Inadvertent Incursion on Another’s Land. In a suit by tile owner of land against a mining company for the reasonable value of coal removed from his land by a company, in an inadvertent and unintentional incursion thereon while mining on its own adjacent land, the measure of damages is not “a sum equal to the reasonable market value of the coal at the mouth of the mine, less the expense necessarily incurred in digging and mining said coal and taking it to the mouth of the mine.” That rule omits the cost of maintenance of the shaft, machinery and other appliances, and other necessary charges, all of which are difficult of proof; and besides, if such cost should prove equal to the cost of the coal at the ffiouth of the mine, it would leave the owner of the land nothing for the coal taken.</p> <p>2. --: -:--: Value in Place: Royalties. The true rule for the measure of damages to the owner of land from which a neighboring miner has inadvertently removed coal, is the value of the coal “in place,” that is, its value as it lay in its bed, if that value can be established by direct testimony. And where the owner of the land did not mine coal or operate a mine, and direct affirmative proof is available that coal in the bed was sold at so much royalty per ton at the time the neighboring coal mining company inadvertehtly made an incursion on plaintiff’s coal, that proof is the true measure of the damage, is a rule of easy comprehension, and establishes a just measure of the value “in place” of the coal taken. Where the owner is not operating the mine, but can dispose of his coal only by selling it in the bed, its only value to him is its value at that place, which, according to the general rule, is measured by the royalty which is customary and fair at that locality; and where that royalty value can be established by direct proof, such proof should be used to establish the damage.</p> <p>3. COAL MINING: Incursion on Neighboring Land Under Royalty Lease: Right of Owner to Sue. The owners of 480 acres of land had contracted with another, under what was denominated a lease, by which he was to mine coal at a certain royalty per ton. The contract embraces the whole tract. While the contract was in force defendant, a miner on adjacent lands, extended its tunnels and drifts to twenty acres of the land and removed coal, for the reasonable value of which the owners sue. The lessee had not exercised his right to mine coal on the twenty acres, and his contract had expired before the suit was brought. S-eld, that the owners of the land, and not the lessee or licensee, have the right to maintain the suit. The loss was not his, but theirs.</p> <p>4. -: -: -: Title. Where the plaintiffs have been in the undisputed possession of land for twenty years, they have such ownership, without showing any proper title, as entitles them to recover the reasonable value of coal taken therefrom by an adjacent mining company.</p> <p>5. -: -: Proof of Amount Taken: Best Evidence Available. Testimony as to the amount of coal taken by defendant from plaintiffs’ lands which consists of the recollection of workmen as to the size and number of rooms in which they worked underground six years before the trial, and as to the thickness and character of the coal taken, if the best evidence within the power of plaintiffs to produce, will not be held to be too vague and uncertain to support a verdict awarding damages for the coal taken, especially as defendant was in a better position to show the true amount than were plaintiffs.</p>

<p>1. EXECUTION SALE: No Notice of Exemptions. The failure of the sheriff to give notice to the execution debtor of his right as the head of a family to select and hold as exempt from execution the three hundred dollars worth of real or personal property mentioned in the statute, does not make void an execution levy and sale of real estate.</p> <p>2. -: Notice By Creditor. A sheriff’s deed is not void by reason of the failure of the execution creditor to give notice of the execution and sale to a judgment debtor upon whom personal service of summons was. made before judgment and while he was a resident of the county where it was rendered, although at the time execution is issued he is not a resident of the county. Sec. 2220, R. S. 1909, has no application to such a case.</p> <p>3. -: In Bulk: Not Raised at Trial. If appellant in the trial court did not object to the sheriff’s deed on the ground that the four lots were sold in bulk, instead of being divided and sold in parcels, no such objection to the deed will be considered on appeal. A litigant is bound by the theory upon which he tried his case in the lower court.</p> <p>4. -: Sale for Costs Only: No Costs Certified In Execution. An execution sale of real estate by the sheriff will not be held to be void simply because the execution did not certify any costs or command the officer to collect any. If the execution creditor made a bid of $100 and the land was sold to him for that sum, and he paid it, and the sheriff’s report shows that he applied $50.65 to the payment of the costs and paid the balance to the said execution creditor, it will not be held that the sale was made to pay costs only, or that no part of the money bid was applied on the judgment, for the effect of the sale and disbursement was that the costs were paid and the judgment against the debtor was satisfied to the amount of $49.35.</p> <p>5. -; Inadequacy of Consideration. A sale, of property worth $907.75 for $100 is not such a grossly inadequate consideration as to shock the conscience or to authorize a court to set it aside on the ground of inadequate price alone — especially where the records of deeds at that time showed that the execution debtor had no interest in the property.</p> <p>6. -: -: Clouded Title. Nor does the fact that the title of the judgment debtor was at the time of the execution sale clouded by conveyances which seemed to convey his interest and which later by the courts were set aside, coupled with the inadequacy of consideration, justify a court in setting aside a sale fairly made, if there is no proof that any of the defendants obtained said invalid conveyances to themselves for the purpose of defrauding the judgment debtor.</p> <p>7. -: Subject to Prior Liens and Judgments. A recital in the notice of sale that the interest of the judgment debtor would be sold “subject to all prior liens and judgments” will not be held a sufficient ground in equity for setting the sale aside unless it is shown that there were no prior liens or judgments; and the burden is on said execution debtor to show there were none such. 'However, the better practice is for the sheriff to follow the usual custom of simply advertising for sale all the right, title and interest of the execution debtor.</p>

<p>1. SPECIFIC PERFORMANCE: Incumbrance: Failure to Inform Purchaser. The owner of land who enters into a written contract to sell and convey it by warranty deed at a stipulated price is required to fully inform the contracting purchaser of the amount and nature of the existing incumbrances thereon; and if he fails to perform that duty, he is not entitled to specific performance.</p> <p>2. -: Interest Mortgage not Mentioned. The contract for the exchange of properties recited that defendant’s land was “subject to two deeds of trust to secure payment of $5000.” There were at the time one mortgage for $4000, another for $1000, and a third for $803 in favor of the same mortgagee to whom the first was made. Defendant claims that the third mortgage was given for unpaid interest on the $4000 and did not create a separate indebtedness; and it appears that the first mortgage of $4000 could not be paid off and discharged without a payment of the third mortgage of $803 in full. Held, that the contract means that the land was incumbered with only two mortgages, and that they could be paid off with $5000; and whether the third mortgage for $803 be classed as a part of the interest on the first mortgage or as an independent debt, its existence constitutes a substantial incumbrance, knowledge of which was not revealed by the contract to plaintiffs, and therefore defendant cannot have specific performance of the contract.</p> <p>3. —-: -: Knowledge: Verbal Testimony. Antecedent verbal statements are merged into the written contract. So that where plaintiffs and defendants entered into a written contract for the exchange of lands, which recited that defendant’s land “was subject tp two deeds of trust to secure payment of $5000,” whereas there were three, defendant contending that the third for $803 was given for unpaid interest on the first, testimony of defendant that he verbally notified plaintiffs that they could not pay off the first for $4000 without paying two per cent interest for the entire time the money had been borrowed, and testimony of plaintiffs to the effect that defendant was guilty of fraud in representing that he had an understanding with the mortgagee of the second mortgage for $1000 to extend the time for paying its mortgage and that said mortgagee Would loan additional money on his equity in the farm, were not admissible, and will be disregarded, since the parties relied upon the written contract, which cannot be varied by verbal statements.</p> <p>3. -: Undisclosed Incumbrances: Possession: Estoppel. Where the vendee, without knowing of an existing mortgage which was not described in the contract of purchase, took possession of the .farm and listed it for sale, but upon learning of its existence immediately abandoned his possession and withdrew it from the market, he did not thereby perform any act which estopped him from repudiating the contract.</p> <p>4. -: -: Ejectment. Where the vendee of land under a written contract of purchase is in possession and is not entitled to have that contract specifically performed and claims no right to occupy the land, except through that contract, the vendor, in his suit in ejectment, is entitled to judgment for possession of the property, and the only further issue to be tried is the amount of rents and profits.</p>

<p>IMPRISONM ENT: Contempt: Three Days from This Date: Habeas Corpus Thereafter. The petitioner was taken into custody under an order of court, on the 31st day of May, to be confined in jail for contempt, for three days “from this date.” Held, that the commitment gave the sheriff no warrant of authority for restraining petitioner of his liberty beyond the period of three days from the 31st day of May, and an imprisonment on June 9th was illegal, and a writ of habeas corpus issued on June 9th must, on the hearing, be upheld and the petitioner discharged.</p>

— Hon. W. 8. G. Walker, Judge. (1) Respondent contends that under Sec. 4945, R. S. 1909, the alleged offense was barred within the three years, and so the trial court held. Appellant contends that said offense comes under the term “corruption in office,” and consequently respondent can be prosecuted, as the indictment was returned or filed within five years after the date of the commission of the offense.

<p>1. BENEFIT ASSESSMENTS: Sewer: Cemetery: Charter. Under the charter of Kansas City the land of an incorporated public cemetery is chargeable with its share of the cost of the construction of a district sewer.</p> <p>2. -: -: -: Constitution. The provision of the Constitution (Sec. 6, art. 10) declaring that “the property, real and personal, of the State, counties and other municipal corporations, and cemeteries, shall be exempt from taxation” has reference to general taxes levied and collected for the support of the State, and does not refer to special taxes assessed to pay the cost of a local improvement. It does not render invalid a city charter requiring cemetery property to bear, along with other private land in the district, its proportionate part of the cost of a district sewer, whose cost is taxed against all lands in the district, except streets and alleys, in proportion to area.</p> <p>3. -: -: -: Pubiio Property: Legislative Authority. While it is within the power of the Legislature, in the absence of a constitutional restriction, to make strictly public property liable for the payment of local improvements, a statute providing for such a charge will not be construed as including public property unless it so provides expressly or by necessary implication.</p> <p>4. -: -: -: Statute: Property Not Subject to Execution. The statute (Sec. 2181, R. S. 1909) providing that “all courthouses, jails, clerks’ offices and other buildings owned by any county or municipality, and the lots on which they stand, and all burial grounds, shall be exempt from attachment and execution” does not render invalid a city charter provision authorizing an assessment upon the lands of a public cemetery of its proportionate share of the cost of a district sewer or other local improvement. It refers solely to a fieri faoias writ; and simply because it prohibits the levying of such a writ against cemetery property, is no reason for holding that it exempts such property from its share of the burden of a local improvement; for if that were true, by the same reasoning, it would exempt all homesteads in a city from the burden of a local improvement of any kind, since homesteads cannot be sold under general executions for debts.</p>

<p>1. APPEAL: Pending Against Another Defendant. Suit was brought against two defendants, but, before the cause was submitted to the jury, dismissed as to one of them, and that one appealed. Held, that the appeal as to it was improvidently granted, since no judgment had been rendered against it, and therefore the pendency of its appeal did not bar its codefendant, against which a verdict was returned and a judgment entered, from thereafter suing out a writ of error.</p> <p>2. -: -: Bill of Exceptions: Amendment Nunc Pro Tunc to Include Only Remaining Defendant. Where there were two defendants, and the cause was dismissed as to one of them, and a verdict returned and a judgment rendered against the other, and a timely order made allowing an appeal to that defendant as to which the cause was dismissed, and time within which it might file a bill of exceptions, it was proper, upon a proper showing, for the court, by a nunc pro tunc entry, to amend the order allowing the appeal and time so as to embrace the other defendant against which the judgment was entered.</p> <p>3. MOTION FOR NEW TRIAL: Admission and Exclusion of Evidence: General Assignment. Assignments in defendant’s motion for a new trial that “the court erred in admitting illegal and incompetent evidence offered by plaintiff” and “the court erred in excluding legal and competent evidence offered by defendant” are sufficient to call the trial court’s attention to alleged errors in admitting and excluding evidence, and to authorize the appellate court to consider any objection and exception to the admission or exclusion of evidence offered at the trial.</p> <p>4. EVIDENCE: Condition of Plaintiff’s Health: Non-Experts. Non-expert witnesses may testify as to the appearance of plaintiff as indicating the condition of her health both before and after the injury. And where they give the whole facts upon which they base their opinions, they may give their opinions. The fact that they are non-experts may weaken the probative force of their testimony, but not its competency.</p> <p>5. -: Photographs: Not Proven: Harmless. Photographs purporting to show the condition of the engine and cars immediately after the wreck, but not of the car in which plaintiff was riding at the time of the wreck, sworn to be true reproductions of the engine and cars by plaintiff but not by the photographer, may not be properly proven; but where there is no material difference in the testimony offered by plaintiff and defendant as to the condition of the cars and engine after the wreck, their admission is not reversible error, since ' defendant sustained no injury from their introduction.</p> <p>6. INSTRUCTION: Injury to Passenger: Presumption of Negligence. It is not error to instruct the jury that proof of the derailment and wrecking of the car in which plaintiff was riding as a passenger raised a presumption that the derailment and consequent injuries to plaintiff were the result of negligence on the part of defendant railroad company.</p> <p>7. -: -: Safe Employees: High Degree of Care. A railroad company is required to operate its passenger trains with careful employees and to exercise a very high degree of caution to avoid wrecks and consequent injuries to passengers; and an instruction so declaring is proper.</p> <p>8. -: -: To be Satisfied. An instruction telling the jury in a suit by a passenger for injuries, that the burden rests upon the railway company “to prove to your satisfaction” that the roadbed, track and ties were reasonably safe and sound” at the place of derailment, is, at its worst, non-direction, not misdirection. It does not require the jury to find beyond a reasonable doubt that defendant was not guilty of any negligence before they could render a verdict in its favor.</p> <p>9. -:-: Non-DIrectlon. An appellant in a civil case cannot complain of a failure of respondent’s instruction to define a word used therein unless he asks for and is refused a correct instruction on the point.</p> <p>10. -: Statements Against Interest: Presumed to be True. The court did not err in modifying defendant’s instruction telling the jury that plaintiff’s statements against her interest “must be taken as true” to read “are presumed to be true.”</p> <p>11. IMPROPER REMARKS: No Request for Rebuke. Except in extreme cases a mere objection and exception to the remarks of respondent’s counsel to the jury, will not authorize a reversal. There should also be a request that the court rebuke counsel, and if no rebuke is administered an exception should be saved.</p> <p>12. INJURY TO WOMB: Not Made Known to Conductor or Physician: Seeking Medical Aid. Plaintiff’s case is not weakened by the fact that, at the time of the wreck of the passenger train, being inquired of as to her injuries, she failed to tell defendant’s conductor and physicians that her womb or genital organs were injured, nor by the fact that she returned to her relatives and friends in a distant city before seeking medical aid, nor by the fact that she did not complain of the injury to her womb when she first placed herself under the care óf a physician.</p> <p>13. VERDICT: Sufficiency of Evidence: Reversal on Appeal. Where every feature of plaintiff’s case in an action at law is supported by substantial evidence, the appellate court cannot reverse a judgment in her favor on the ground that there is substantial contradictory evidence.</p> <p>14. -: Excessive: $10,000: Injury to Womb. The evidence . is 'clear that plaintiff, an unmarried woman, prior to her injuries, was in excellent health, able to satisfactorily perform her labors as a saleslady; but as to the extent and permanency of her injuries is somewhat conflicting. While it is clear that she has suffered much pain and that she cannot be restored to health without undergoing a painful surgical operation, it is not proven that her injuries are necessarily permanent. Held, that a verdict for $10,000 is too large by $2500.</p>

<p>1. RAPE; Sufficient Evidence. If the story of the prosecuting witness, aged twelve years, shows defendant’s guilt of rape, and her testimony is corroborated by several other witnesses, the evidence is sufficient to sustain a verdict of guilty.</p> <p>2. -: Weight of Testimony: Improbable Story: Province of Jury. The court will not substitute its judgment on questions of fact for that of the jury. If it was argued to the jury that the story of the little girl, whom defendant is charged with having raped, was inherently impossible and the jury found defendant guilty, the court will not undertake to hold that her story was inherently impossible, or to pass upon other matters going to the weight of the testimony. It is peculiarly the province of the jury to decide upon the weight of testimony.</p> <p>3. -: Penetration: Sufficiency of Evidence. Testimony of the twelve year old girl that defendant’s attempt at copulation hurt her and that a towel was used, and testimony of her mother of subsequent internal pain and soreness, though not strong evidence of penetration, are sufficient to take the rape case to, the jury.</p> <p>4. -: Instruction: Limitation. The instructions should fix no limit as to the time within which the jury should find the offense of rape was committed. Section 4944, Revised Statutes 1909, in effect provides that there shall be no limitation on the crime of rape.</p> <p>5. WITNESSES: Failure of State to Call. The State is not required to call witnesses merely for the purpose of corroboration. The fact that the State failed to call certain physicians who had examined prosecutrix after her alleged rape by defendant, and who had been summoned and were in court, is no ground for a reversal. Nor is the objection for review on appeal where no request was made of the court to order the State to produce these witnesses, and no exception was saved, and the question was not saved in the motion for a new trial.</p> <p>6. ARGUMENT TO JURY: Improper Remarks. The prosecuting attorney said in his argument to the jury in a prosecution of defendant for raping a negro girl twelve years old: “And I say to you, gentlemen of the jury, if you make an example of this defendant, if you believe he is guilty, it will tend to the protection of little colored girls and little white girls under the age of fourteen.” Held, that the appeal, coupled with a proviso that defendant was guilty, was evidently directed to the amount of punishment to be inflicted, and'was not improper.</p>