Volume 245 — Missouri Reports

— 'Hon. J. C. Sheppard,' Judge. (1) The General Assembly of this State has the inherent right to incorporate drainage districts directly. It also has the power to delegate to the circuit, courts of this State, as its agent, the right to incorporate such districts.

Mandamus. (1) The act in question is class legislation and' in violation of Sec. 27, Art. 4, of the Constitution of 1875, in that it undertakes to divide a natural class of persons, to-wit, all persons whose election to office has been contested, into artificial classes, to-wit, those who draw their salary from the State treasury, and those who draw their salary from a county or city treasury or receive'their compensation from fees col-' lected, and undertakes to impose a…

— Ron. B. G. Thurman and Ron. J. D. Perkins, Judges. (1) These provisions of the statute are mandatory. Ballots without numbers were counted in the Fifth ward, and the ballots in the Fifth ward were not sealed up in a package, but were returned loose on a ■string in an unfastened box, and should not have been counted. West v. Ross, 53 Mo. 350; Ledbetter v. Hull, 62 Mo. 422; Donald v. Lee, 101 Mo. App. 191; McKay v. Minor, 154 Mo. 608.

Prohibition. (1) The decree rendered by the Butler Circuit Court incorporating “Little River Drainage District,” fixing its boundaries and its term of corporate existence, exhausted the issues set up in the “articles of association,” and was a final judgment rendered in a “civil suit” from which an appeal would lie to this court.

Mandamus. (1) The sole question presented by the record is as to whether a defeated party may present in a short bill of exceptions the propriety of the ruling upon which he is defeated, or whether he must prepare a record covering everything that occurred in the trial court in order to enable the reviewing court to say whether the trial court was not perhaps right for some other reason.

Probibition. (1) Tbe courts of one State will not exercise visitorial power over tbe internal affairs of a foreign corporation; and they will refuse to grant relief in cases where they cannot compel tbe performance of their decrees. State ex rel. v. Denton, 229 Mo. 187; Clark v. Association, 43 L. R. A. 390; Taylor v. Association, 97 Va. 60; Howard v. Association, 125 N. C. 49; Condon v. Mut. Res.

Prohibition. (1) The demurrer admits all the substantial, material and traversable allegations of the petition. State ex rel. v. Eby, 170 Mo. 522. (2) The suit in the circuit court does not involve or seek to affect any real or personal property situated within the jurisdiction of that court. By Sec. 1674, R. S. 1899, the jurisdiction of circuit courts is confined to the respective counties in which’ they may be held.

Certiorari. (1) Tlie respondents were without authority to interrupt by mandamus the right of relator to have the cause of his detention inquired into by habeas corpus. The writ of habeas corpus is a high prerogative writ, known to the common law, the great object of which is the liberation of those who may be imprisoned without sufficient cause. Ex parte Watkins, 28 U. S. 193; People v. Liscomb, 60 N. Y. 559; In re Dill, 32 Kan. 668.

Prohibition. (1) Eelators are entitled to a peremptory writ on the return. The writ commands respondent to show by what authority he is proceeding; this he wholly fails to do. He admits he has taken some action, o.r is about to do so, but does not ‘show by what authority. If the Practice Act applies, he has not first denied the allegations of the information; and then, as new matter, showed his action.

Appeal- from Ralls Circuit Court. — Ron. D. R. Eby, Judge. (1) Armstrong having committed suicide, respondents cannot recover, provided appellant is a fraternal benefit society. Armstrong agreed in his application for membership, that in the event of his death by suicide his benefit certificate should become null and void. The benefit certificate issued to him contained a provision to the same effect.

Louis City Circuit Court. — Ron. J. Rugo Grimm, Judge. (1) Appellant’s motion at the close of the State’s case to discharge upon the ground of variance should have been sustained. State v. Plant, 209 Mo. 307; State v. Shapiro, 216 Mo. 359; State v. Ballard, 104 Mo. 639. (2) The court misdirected the jury.

— Hon. J. G. Park, Judge. (1) Where a contract for the sale of property is void because entered into in violation of the statute governing foreign corporations doing business in Missouri, the title to property delivered pursuant to such contract remains in the original owner, and the equities not being against it and no other law preventing, it maintains the proper action to recover snch property. Roeder v. Robertson, 202 Mo. 535.

— Hon. W. S. C. Walker, Judge. (1) The information is bad for the reason that it charges defendant with wrongfully taking a buggy ánd also set of harness, distinct and separate articles, without stating the value of each, but states the collective value. State v. Koplan, 167 Mo. 298; State v. Ravencraft, 62 Mo. App. 109. (2) The court erred in refusing to excuse the juror, who had talked with the prosecuting witness. State v. Tomasitz, 144 Mo. 86.

<p>APPEAL: Constitutional Question: Jurisdiction of Probate Court: Curators. The guestion'whether the facts in this case warranted the prohate court in appointing the particular curator who brought this suit is not a constitutional guestion giving the Supreme Court jurisdiction of the appeal. It does not concern the probate court’s jurisdiction to appoint curators under Sec. 34, Art. 6, of the Constitution.</p>

Louis City Circuit Court. — Eon. Daniel G. Taylor and Eon. Eugo Muench, Judges. Held: in the matter of the plea in abatement, wherein the pendency of the prior suit of Sanders v. Verneuil et al. was urged in abatement of this action, because: 1st. Both suits were pending before the same judge in the same division of the circuit court of St. Louis city, and the trial judge had the right and discretion to decide which…

<p>Appeal from St. Louis City Circuit Court. — Hon. Daniel S. Taylor and Hon. Hugo Muench, Judges.</p>

— Hon. E. E. Porterfield, Judge. (1) There was no negligence shown in the construction and maintenance of the switch at which plaintiff was injured. The evidence' shows that this switch was of a standard type adopted and generally used on defendant’s road, also on numerous other up-to-date railroads in this part of the country, and that said switch was in good repair.

— lion. Thomas J. Seehorn, Judge. (1) The petition does not state facts sufficient to constitute a cause of action. At- the commencement of the trial the defendant objected to the introduction of any evidence, on the ground that the petition does not state facts sufficient to constitute a cause of action. At the close of the case defendant demurred to the evidence; also asked a peremptory instruction for a verdict in its favor.

— How. Hugh Dabbs, Judge. (1) Davis being the immediate actor, and the defendant bank’s liability and plaintiff’s right of action, if any, against it, being dependent upon the obligations, conducts, contracts, and agreements of Davis with plaintiff; and, the issues between Davis and Byrd, as -to such obligations, conducts, contracts and agreements, having been found in favor of Davis, and against plaintiff, such finding and judgment bars the plaintiff’s right to any judgment…

Louis City Circuit Court. — Hon. Eugene McQuillin, Judge. (1) This is a contest for the possession of specific property, i. e., certain bonds, and for either plaintiffs or defendant to prevail, they or he must establish a superior legal or equitable title to the property. It is not merely a case for some kind of equitable relief.

Louis City Circuit Court. — Hon. George H. Williams, Judge. Dell and Dee conspired together to obtain the title to the lands in Mexico, and succeeded in their plot. Plaintiff elects to allow the title to stay where they put it, and to be compensated in damages for its value. Under- all authorities she is entitled to judgment. “The testimony showed beyond all question that the sale was brought about by the defendant for the purpose of acquiring title, and no other. . . .

Louis City Circuit Court. — Hon. Hugo Muench, Judge. (1) Tire contracts between the exposition company and the wrecking company show tbe latter was to liave possession of tbe land, and was a subtenant, at least fo,r suck time, up to June 30, 1905; as would be necessary for tbe removal of tbe structures on tbe land, (a) Tbis is apparent from tbe language of tbe contracts and tbe conferences attending their execution.

— Now. James D. Barnett, Judge. (1) • When dower once attaches the husband cannot by any act or omission defeat it. Davis v. G-reen, 102 Mo. 180; R. S. 1909, See. 358. (2) The widow is entitled to dower subject to a vendor’s lien. The land was not sold under or to enforce the vendor’s lien.

Louis City Circuit Court. — Hon. Robert M. Foster. Judge. (1) According to the petition, the deliveries of grain under the contracts were to he in St. Lduis and also in East St. Louis (“in regular elevators,” some of which then were and now are in Illinois), so that the places for performance thereof made the grain transactions in suit interstate commerce. Montague v. Lowry, 193 U. S. 38; Hall v. Cordell, 142 U.'S, 116.

Louis City Circuit Court. — Hon. Hugo Muench, Judge. (1) Whether an applicant has ever applied to other companies for insurance and been rejected is regarded as material to the risk, and a false statement in this regard will void the policy. Aloe v. Insurance Co., 147 Mo. App. 647; McDermott v. M. W. A., 97 Mo. App. 561; M. W. A. v. Angle, 127 Mo.

— Eon. John P.. Butler, Judge. (1) The deed from James Lee and wife to Malinda Frazier and the heirs of her body, created an estate tail, and by the statute then in force vested in her a life estate, remainder in fee to her issue, and she dying without issue, remainder in fee to her heirs. Sec. 5, Ch. 32, R. S. 1855; Clarkson v. Clarkson, 125 Mo. 381. (2) The widower is an heir of his wife, and under the statute is entitled to the one-half of the real estate.

— Hon. Walter A. Powell, Judge. (1) The court committed error in Refusing to give the demurrer to the evidence, and the instruction in the nature of a demurrer to the evidence, for the reasons: (a) The act of the watchman in attempting to remove the plaintiff from the ladder on the car was not proven to be within the scope of his employment. Drolshagen v. Railroad, 186 Mo. 258; Sherman v. Railroad, 72 Mo. 62; Marcum v. Railroad, 139 Mo. App. 217; Farber v. Railroad, 32 Mo.

<p>1. EASEMENT: Private Alley: Created by Deeds in Partition. Deeds by cotenants in partition of land in a city block designating a certain plot of ground as a private alley left by all concerned, create an easement in the alley which passes in after conveyances with the estates to which it is appurtenant as long as the estates subsist as distinct estates in different proprietors.</p> <p>2. -: -: Estate of Abutting Proprietor. In the absence of evidence to the contrary it will be presumed that the owners of property abutting on a private way hold the fge to the center of the way.</p> <p>3. -: -: Acquired By Deed: Not Lost by Nonuser. An easement acquired by deed cannot be lost by mere nonuser.</p> <p>4. -: -: -: -: Evidence. lilis is a suit to enjoin the construction of a building on an alleged private alley and to compel the removal of one already erected. The defendants, who own land abutting on the west, had notice from their deeds that the strip in question was a private alley, and it was open, when they took possession of their land in 1891, as a five-foot space between two-story brick buildings. In 1892 the strip was closed by the erection of a frame structure, the rent for which was collected and paid to the defendants, according to testimony for defendant, by a tenant and agent of an earlier owner of the land upon the east now owned by plaintiff. Immediately following 1892 the west part of the alley was assessed to the defendants; not all of it, however, until 1900, yet they have executed various deeds in which the strip in question is called a private alley. Before judgment herein they had begun the erection of a brick building covering a portion of the strip. Held, that the beginning of the possession was hy permission of a former owner in plaintiff’s chain of title and that such possession was not under any .adverse claim of right. N.o possession can result in title by limitation unless the same is under a claim of right or color of title. The injunction is allowed and the removal of the structures is ordered.</p>

— Now. David H. Harris, Judge. (1) The court erred in admitting the evidence as to defendant’s statements on his second appearance before the grand jury, because said statements were not voluntary, and to admit the same was in violation of Art. 2, Sec. 23, Constitution. State v; Young, 119 Mo. 495; State v. Senn, 32 S. C. 392; Tuttle v. People, 33 Colo. 243; State v. Clifford, 86 la. 550; State v. New-comb, 220 Mo. 65.

— Hon. E. E. Porterfield, Judge. (1) The court erred in admitting irrelevant, incompetent and immaterial testimony- on behalf of the State. (2) The court erred in failing to instruct the jury on all of the law governing the case. State v. Howell, 100 Mo. 628; State v. Woodward, 111 Mq. 249; State v. Taylor, 118 Mo. 154; State v. Koplan, 167 Mo. 298; State v. Kennedy, 177 Mo. 132; Sec. 5231, R. S. 1909.

— Hon. C. H. Shinher, Judge. (1) Tke court gave improper instructions on the part of tke State and refused proper instructions asked by tke defendant, a. Tkere was no evidence on wkick to base tke second instruction, but tke jury found kim not guilty of tke ckarge to wkick tkat kad reference, b. Tke fiftk instruction is entirely too general and is a dissertation on insanity ratker tkan an instruction, c. Defendant’s fiftk instruction skould kave been given as tkere was no…

<p>Appeal from Ripley Circuit Court.1 — Eon. J. G. Sheppard, Judge.</p> <p>(1) Before a conviction can be sustained in this case the. corpus delicti must be proved beyond a reasonable doubt, every essential element of the offense charged must be proved, and it must be proved.beyond a reasonable doubt that the offense was committed by defendant.' • 6 Cyc. 240; McClain, Crim. Law, p. .618, Sec. 612; 12 Cyc. .488 (11). . (2) The corpus delicti cannot be proved by the uncorroborated confession of the defendant.- 25 Cyc. 120. (3) The venue must be proved as any other fact. It cannot be proved by inference alone. There must be something ' substantial upon which to base the inference.</p> <p>(1) ■ It is sufficient answer to appellant’s' claim of error in overruling the motion to strike out all testimony relative to payment for the steer, that appellant had objected to the introduction of .the evidence at the time it was offered, but had failed to save an exception to the overruling of his objection, and thereby waived the error, if any. He was in' the same position as if he had allowed evidence to .go in without objection and at the close of the State’s case move to strike it out when, of course, it was too late. 12 Cyc. 565; State v. McAfee, 148 Mo. 370; State v. Rapp, 142 Mo. 443; State v. Marcks, 140 Mo. 656; State v. Forsha, 190 Mo. 296; State v. Finn, 199 Mo. 597; State v. Pyles, 206 Mo. 626; State v. Arnewine, 136 Mo. 130. It could not be considered prejudicial error, as it was waived at the time made. A motion to strike out incompetent evidence should be promptly made. Waiting until after the other side has closed its case, or until after other questions have been asked, has been held to constitute a waiver. 12 Cyc. 566; Seamster v. Staté, 74 Ark. 579. (2) The venue need not be proved by direct facts, but may be inferred from facts in evidence. State v. Grow, 235 Mr. 307. Moreover, the venue was amply proved. The appellate court will take judicial notice of the geographical location of the courthouse at the county seat, and the county seat’s location as to the county limits. Moler v. Whisman, 243 Mo. 571.</p>

— Hon. W. 8. C. Walker, Judge. (1) Grievous errors were committed in the admission of incompetent, irrelevant and. immaterial testimony over the objections and exceptions of the defendant in the trial, and in the leading and improper manner in which it was elicited from the State’s witnesses. The appellant’s conviction was brought about by incompetent testimony in answer to questions most flagrantly leading. State v. Whalen, 148 Mo. 286; State v. Keath, 53 Mo.

Louis City Circuit Court. — Hon. Wilson A. Taylor, Judge. (1) Error assigned, is that “the court erred in not instructing the jury properly in all the law bearing1 upon the -case as asked by defendant.” Defendant did not except to the action of the court in failing to declare all the law of the case, if in fact the court did not give all the law. (2) Under the proof, the demurrer to the evidence was -properly overruled.

Francois Circuit Court. — Eón. Peter E. Euch, Judge. (1) The Supreme Court will not, ordinarily, weigh the evidence; yet, under the law and the evidence of this case, defendant is not guilty of murder in the second degree. (2) Evidence that materially tended to prove, especially on cross-examination, the threats and attitudes of deceased at the time of the killing should have been admitted.

Louis City Circuit Court. — Hoja Eugene McQuillin, Judge. (1) The prosecuting 'witness over the objection of defendant, was permitted to testify that at1 that time she' was pregnant. When she in her testimony admitted that she had intercourse with persons other than the defendant, and having had equal opportunity with other men to bring about such condition, she should not have been permitted to so testify.

Louis City Circuit Court. — Hon. J. Hugo Grimm and Hon. Leo 8. Rassieur, Judges. (1) The court properly permitted Patrick H. Newman, husband of the prosecuting'witness, to testify that defendant and his coindictee were in his (Newman’s) home three days before the robbery occurred. This evidence was admissible for the purpose of identifying defendant and connecting him with the crime charged.

— Hon. Arch B. Davis, Judge. (1) The court erred in overruling defendant’s motion to quash the information and demurrer thereto. The information was based on Sec. 1957, R. S. 1899, Sec. 4597, R. S. 1909, making the offense a felony.

— Row. E. E. Porterfield, Judge. (1) The information was drawn and the ease was tried under the false pretense statute, Sec. 4565, R. S. 1909, as amended by Laws 1911, p. 195, and cannot now be shifted to the cheat-and-fraud statute, Sec. 4765. Instruction 1; given at the instance of the State, is erroneous for failing to instruct as for a misdemeanor in case the jury should have found the value of the livery stable stock to be less than thirty dollars.

<p>CRIMINAL LAW: Testimony of Coindictee: Credibility: Cautionary Instruction. Sec. 5242, R. S. 1909, giving the State the right to show, for the purpose of affecting his credibility, that a defendant who has taken the stand is the person on trial, does not include the case of a coindictee, not on trial, testifying as a witness, and it is error warranting a reversal for the court to instruct that such an one is a competent witness for the defendant, “but the fact that he is jointly indicted and his interest, if any, in the result of the case, may be considered by you in determining the credibility of his testimony — yet, as a whole, you should receive and consider his testimony like that of any other witness,”, etc.</p>

— Hon. Henry L. Bright, Judge. A motion to dismiss the appeal in this case has been filed by the State. Under Sec. 5292, B. S. 1909, as it formerly stood, no affidavit for appeal was necessary in a criminal case. State v. Smith, 190 Mo. 714. Hut the Legislature in 1909 so amended that section as to make an affidavit necessary. It adopted the exact language of the statute on this subject applicable to civil cases. Sec. 2040, R. S. 1909.

— Hon. Fred Lamb, Special Judge. (1) The instruction asked by the defendant at the ■close of the State’s evidence and the one at the close of the whole case should have been given by the court, for the reason that there was a fatal variance between the allegations of the information and the proof made by the evidence. State v. Samuels, 144 Mo. 68; State v. Allen, 171 Mo. 562; State v. Young, 237 Mo. 170; Sherwood’s Crim. Law, pp. 371-4.

Louis City Circuit Court. — Hon. George C. Hitchcock, Judge.

<p>1. RECEIVING STOLEN GOODS: Presumption from Possession: Knowledge: Inferred. In a prosecution for receiving stolen goods, knowing the same to have been stolen, naked possession of the property recently stolen is not alone sufficient to raise a presumption of guilt, as in the case of larceny; but in addition to proof of possession, it is essential to a conviction that the testimony tend to prove knowledge of the accused, at the time he received the property, that it was stolen. But direct testimony of such knowldge is not required; it may be inferred from facts, and circumstances.</p> <p>2. -: Facts From Which Knowledge May Be Inferred. Defendant was a merchant tailor and kept a tailoring shop, and was indicted for receiving a man’s black overcoat with a muskrat collar, of the value of $87.50, the property of the Grand Leader, a retail clothing house, knowing the same to have been stolen; and it is held, that the facts and circumstances in evidence were sufficient to authorize an inference by the jury that defendant knew the overcoat had been stolen at the time he claims he bought it for less than one-third its value from an unknown man who represented himself as a traveling salesman.</p> <p>3. -: instruction: Collateral Mátter: Other Stolen Goods: For What Purpose to be Considered. In determining the guilt, or innocence of defendant of receiving the stolen overcoat mentioned in the information, knowing it to be stolen, testimony that the merchant about the same time lost nine similar overcoats, and that four of them were found in defendant’s possession, and of the manner in which he had disposed of them, was competent to show his guilty knowledge; but it was not incumbent upon the court to give an instruction telling the jury for what purpose that testimony was competent, and cautioning the jury to consider it only in determining whether or not the defendant received the one overcoat mentioned in the information, knowing it to be stolen. Even though such an instruction, if asked, might be given without error, the failure of the court to give it is not error, for the purpose for which such testimony is admitted is not a question upon which an instruction is necessary for the information of the jury in making up their verdict.</p>

<p>TRIAL: Criminal Law: Submitting Case on Evidence in Case Against Another. After the filing of an information charging the accused with passing a forged check for five dollars, payable to Dan Pattison, or order, and signed by John Dumont, a so-called amended information was filed, charging him with passing a check for $5.50, payable to Jack Williams, or bearer, and signed by John Dumont. The accused pleaded not guilty to the first information, but there was no arraignment upon the second. Another person was tried' for passing the check mentioned in the first information, and then by agreement the case against this accused was submitted, on the evidence taken in that case, to the same jury, and he was found guilty. There is no evidence in the record connecting the accused with any kind of offense. Held, reversed and remanded.</p>

— Eon. Henry C. Riley, Judge. (1) The court erred in the admissibility and rejection of testimony. Thompson v. Irish, 99 Mo. 160; Coble v. McDaniels, 33 Mo. 363; O’Neil v. Crain, 67 Mo. 250.

— Hon. Walter A. Potoell, Judge. (1) The evidence shows conclusively there was no misconduct upon the part of Clark and the motion for new trial should not have been sustained on that account. State ex inf. v. Clark, 134 Mo. App. 55; Feary v. Eailroad, 162 Mo. 106; Kennedy v. Holladay, 105 Mo. 24; State v. Shipley, 171 Mo. 550.; State v. Gray, 172 Mo. 435; Hamberger v. Einkel, 164 Mo. 406; Paramore v. Lindsey, 63 Mo. 67; Bank v. Fults & Co., 115 Mo.

— Hon. J. G. Sheppard, Judge. (1) In order to prevent a collision it was the duty of the section foreman to cause the crew and the handcar to clear the main track at least ten minutes before the arrival of the fast passenger train, which was running on schedule time, and the failure to perform this duty constituted actionable negligence.

Prohibition. (1) The petition of Augustus Ross, administrator, as filed in the probate court, is in such form that it is difficult to tell whether he asks the sale to pay indebtedness against the estate, or whether he seeks to obtain the sale by virtue of the provisions of Sec. 147, R. S. 1909.

<p>1. PROHIBITION: No Return: Facts Admitted. 'Where respondents make no return to the preliminary rule in prohibition, the verified statement of facts in the application for the writ will be taken as the facts of the case.</p> <p>2. -: Jurisdiction: Over Person: Right of Probate Court to Determine. Where the information.filed in the probate court states that a certain person therein is of unsound mind and incapable of managing his affairs and that said person is a resident of the county, and prays for an inquiry thereinto, the probate court has jurisdiction and the right to determine, upon a proper hearing, whether or not such person is a resident of the county; and no„ottter court, upon the filing of a verified statement with it that said person is a resident of another county, has authority to prohibit said probate court from hearing and determining the question of said person’s residence.</p> <p>3. -: Costs: Against Judges. The costs of a writ of prohibition directed only to judges of a court will be taxed against relator, though the preliminary rule be made absolute.</p>

— Ron. Berry Q. Thurman, Judge. (1) Appellant never having been notified of the proceedings until the bringing of this action to enforce the payment of taxes, necessarily the taxes sued for are void, and there can be no recovery, (a) The alleged preliminary notice was void as to appellant. R. S. 1909, Sec. 5581. The order of the court required same to be published in the Rich Hill Review. The finding was that it was published in the Mining Review.

Prohibition. There is no question but wbat tbe amount in dispute in this case is above $7500. The respondents take the position that when the judgment amounted to but $6817.48 and the defendant alone appealed, that is the sum in dispute, overlooking, entirely, the fact that relator has complained of the setting aside of the finding of the referee in its favor, amounting to $2656.68 with interest from April 4, 1907.

Mandamus. (1) Mandamus is the proper and only proceeding to compel the county court to issue the warrant called for in this case. State ex rel. v. Baker, 166 Mo. 130.

— Row. Joseph A. Guthrie, Judge. (1) Appellant was not negligent. The theory upon which the case was submitted is not embraced in the petition. Koenig v. Railroad, 173 Mo. 698; Nugent v. Milling Co., 131 Mo. 241; Glass v. Gelvin, 80 Mo. 297. The master performs his full duty when he furnishes proper appliances — he is not liable for failing to prevent their misuse or nonuse.