Volume 248 — Missouri Reports

Habeas Corpus. The relator was under the age of eighteen years when the sentence was passed on October 22, 1912, and when commitment was delivered on- October 23, 1912, the said relator was in the custody of the jailer as agent for the warden of the penitentiary. Once having passed sentence on the relator, the judge had no more discretionary power. B. S. 1909, sec. 5267.

<p>APPELLATE JURISDICTION: Attachment: Less Than $7500: Counterclaim for More Than $7500. Plaintiff sued in attachment, and defendant’s plea in abatement put in issue the allegations of the affidavit. The suit upon the merits was based upon an account stated, whose various items totaled $6175.11. Defendant’s answer to the merits denied the allegations of the petition, and set up a counterclaim for $8952.01. The attachment trial resulted in a verdict for defendant, and plaintiff appealed. The trial on the merits resulted in a verdict for plaintiff for ' $5656.41, and from that verdict there was no appeal by either party. Held, that the Supreme Court does not have jurisdiction of the appeal, and the cause is, therefore, transferred to the proper court of appeals.</p>

<p>1. LIMITATIONS: Lands Dedicated to Public Use: Wharfs. Since August 1, 1866 (G. S. 1865, p. 746, sec. 7, chap. 191, which, is still preserved as live law in R. S. 1909, sec. 1886), title could not be acquired by adverse possession to lands given or granted to a public use, and said statute can nowhere be more beneficially applied than in preserving to cities grounds on the banks of navigable rivers for levees, wharfs and water fronts. But title to lands abutting on the river and belonging to the city as a part of its “commons” may have been lost by adverse possession for ten years prior to that date.</p> <p>2. ACCRETIONS: Not Included in Deed. It is the shore owner who is entitled to accretions forming to the shore. Where the city was the owner of lots bounded by the Mississippi River, and an official recorded plat made in 1847 showed a strip or ribbon of shore land between the east boundary line of the lots and the river, and the city in 1853-56 conveyed the lots by the exact quantity named in the plat and referring to the plat for the description, which did not include the strip or ribbon, and there is evidence that said strip was in existence before the plat was made and none that it sprang from accretions after those conveyances were made, the city did not by deed part with the said strip.</p> <p>3. LIMITATIONS: Tacking Present Possession to Former Adverse Possession. The present defendant in possession may tack his possession to the possession of his grantor who was in adverse possession prior to August 1, 1866, when it was allowable to acquire by adverse possession and limitations title to land devoted to a public use.</p> <p>4. -: Continuous Possession, but not Adverse: License. A railway company which was in continuous open possession of the city’s land for ten years prior to August 1, 1866, under a license from the city giving it the privilege of exclusively using said land for the purpose of a dock for forty years, did not have such possession as gave it title by limitations, for the possession was not adverse.</p> <p>5. -: Issue at Law: Burden. In ejectment, where plaintiff has the paper or record title, the burden is on defendant to show it has acquired that title by deeds or by adverse possession; and the issue being one at law, in either case, 'and there being evidence to sustain the verdict for plaintiff, or the finding of the court sitting as a jury, the Supreme Court is bound by it.</p> <p>6. EVIDENCE: Shifting Objection on Appeal. Appellant cannot make one objection to proffered evidence a.t the trial and, finding that untenable, have the evidence excluded on appeal on other grounds. Where defendant in ejectment at the trial objected to the offer of a concession agreement made with its remote grantor for the use of plaintiff’s property, that “it is not binding on us,” it cannot on appeal be heard to contend that the agreement was ultra vires, because of lack of power to execute it.</p> <p>7. -: Commons: Surrender to Private Persons: Ultra Vires. The strip of ground in suit was not a public street, but a part of the common granted to Carondelet by the United States, and by legislative grants of power that city had authority to sell or lease her commons. Therefore, cases holding that a city has no power to surrender possession of its de facto streets to private persons, do not apply.</p> <p>8. -: -:--:---: Estoppel: Adverse Possession: Set up by Beneficiary. Where defendant’s remote grantor got possession of the land in suit by a concession from the city of the privilege to him and his assigns to use it for dock and other like purposes for forty >years, and enjoyed'the fruits of the concession, it would be bad morals and bad law to hold that said grantor could acquire title by claiming to hold adversely to the city during the life of the concession. A party under a mere ultra vires contract may not get and retain benefits thereunder and then turn about and repudiate the contract</p>

— Hon. D. E. Blair, Judge. (1) If tlie law of Missouri is to control, instruction 1 should have been given. Matthews v. Railroad, 142 Mo. 645. (2) . If the law of Kansas controls, instruction 2 should have been given. Railroad v. Grib- ■ son, 42 Kan. 34; Railroad v. Kerroker, 46 Kan. 511. {3) If the law of Missouri is to control, defendant’s instructions 3, 4 and 5 were improperly given.

— Hon. J. D. Barnett, Judge. Transferred to St. Louis Court of Appeals. STATEMENT BY TPIE COURT.

— Hon. Jesse G. Sheppard, Judge. (1) A married woman, as to persons other than her husband, may be estopped in relation to such property rights like any other property owner. Leete v. Bank, 115 Mo. 184; Tennant v. Insurance Co., 133 Mo. App. 361; Riley v. Vaughan, 116 Mo. 169; Balz v. Nelson, 171 Mo. 689; Taliaferro v. Evans, 160 Mo. 380; Mfg. Co. v. Stephens, 169 Mo. 1; Stone v. Bank, 81 Mo. App. 9; Orchard v. Collier, 17Í Mo. 390.

— Eon. James D. Barnett, Judge. Transferred to St. Louis Court of Appeals. STATEMENT BY THE COURT.

— Ron. J.ohn T. Moore, Judge. In trials before tbe court without a jury the court’s theory of the law applicable to the issues is indicated by the declarations of law given and refused. In this case the court overruled defendant’s demurrer to plaintiff’s evidence and then refused .a declaration of law based on plaintiff’s evidence. That the weight of evidence was for the .court to determine is not questioned.

— No». Nat M. Shelton, Judge. The court erred in excluding tlie Kentucky statutes on descent for tlie reason that they were not pleaded. There was no question made that the statute produced and read in evidence was the Kentucky statute. That statute was simply a link in the chain of evidence to establish that the money paid for this land was Mrs. Pindell’s money and she was not required to plead the statute.

— Eon. E. E. ■ Porterfield, Judge. Instruction 1 given at the request of defendant implies that there was some evidence that deceased was negligent in selecting the position he did when injured, but a close scrutiny of the record fails to show any negligence on the part of deceased, and for that reason this instruction is erroneous. Coffey v. Carthage, 186 Mo. 583; Conner v. Nevada, 188 Mo. 148; Dunphy v. Stock Yards Co., 118 Mo. App. 520; Sehroeder v. Transit Co., Ill Mo.

Louis City Circuit Court. — Eon. Matt G. Reynolds, Judge. (1) The Damage Act is to be strictly construed, and the mode prescribed for the acquisition of rights under said statute are mandatory. Clark v. Railroad, 219 Mo. 539; Gray v. Railroad, 157 Mo. App. 92; Jackson v. Railroad, 87 Mo. 422; Bates v. Sylvester, 205 Mo. 493; Barker v. Railroad, 91 Mo. 86; Lewis’s Southerland’s Stat.

— How. J. C. Sheppard, Judge. (1) The court erred in finding and adjudging plaintiff to be the owner of the land in controversy. No competent testimony of any kind whatever was offered by plaintiff to show that the grantor named in the deed dated August 4, 1903, Addison F. Burns, under which plaintiff claims, was the same person as either Adam F. Bums, the grantee named in the deed dated May 9, 1873, or Adam T. Burns, the grantee named in the deed dated January 1, 1873.

Louis City Circuit Court. — Roto. Hugo Muench, Judge. (1) Although at the time of an accident a sidewalk may he in a defective condition, yet, if the defect or dangerous condition arises from concurrent causes,. the city is not liable, unless it had notice of both of the causes in time to have remedied the defect.

Louis Court of Criminal Correction.— Won. Wilson A. Taylor, Judge. (1) Defendant was not an apprentice, within the meaning of that term as used in the ordinance, because he was not a minor, bound by indentures for a fixed time, to learn from his master the trade of plumbing. Sbc. 1679, R. S. 1909; 2 Kent, 211; 1 Bouvier, 159; 1 Blaekstone, 526. (2) The construction of an ordinance is for the court. Barton v. Odessa, 109 Mo. App. 82.

Louis City Circuit Court. — Now.. George H. Williams, Judge, (1) The court erred in holding that an unhorn child while alive in the womb of the mother, sustaining injury by the negligence of the employees of the-railroad on which the mother was a passenger, which child was afterwards born and lived after its birth and then died from the injuries so received, was not a “person” within the words and intent of the above-cited statute.

Pemiscot Circuit Court. — Now. Henry G. Riley, Judge. (1) To charge that a person is a thief is actionable per se, and malice is presumed on the utterance of the slanderous words. Carpenter v.. Hamilton, 185 Mo. 60S; Hall v. Jennings, 87 Mo. App. 627; Lewis v. McDaniel, 82 Mo. 577; Baldwin v. Pries, 46 Mo. App. 288; Buckley v. Knapp, 48 Mo. 152; Callahan v. Ingram, 122 Mo. 355.

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

Louis City Circuit Court. — Row. Matt G. Reynolds, Judge. STATEMENT BY THE COURT. Plaintiff by his mother, his next friend, sued the defendant for personal injuries alleged to have been sustained while he was a passenger on one of its street cars..

<p>1. CONVEYANCES: Mineral Estate: Severance. There may he a complete severance of the mineral estate from the surface estate, and the mineral estate may be conveyed separately from the surface estate — either by exception or by grant.</p> <p>2. -; -; Construed Against Grantor. A deed which attempts to convey a coal mine must be construed most strongly against the grantor.</p> <p>3. -: -: Coal Mine: Open and Operated. The owner of land by warranty deed conveyed “the one equal undivided half of the coal mines being and situate on the east half of the southwest quarter of section sixteen . . . ; said mines are now showing themselves in the bed of the creek running through said described tract of land about one hundred and fifty yards more or less above the ford of said creek on” a certain public road. Held, that these words do not restrict the grant to open or operate mines, or to such veins as were in fact open and exposed on the creek mentioned, nor to the particular viens of coal shown by croppings on the creek, but were used in the sense of “coal deposits, subject to being mined.”</p> <p>4. EJECTMENT: Segregated Mineral Estate: Possession of Defendants. -Where defendants claimed the entire property under a deed which made no reservation of the coal deposits on the land, and were at the time in possession of the surface, but not using or mining the coal, but were claiming everything from the surface to the center of the earth, there was proof of such possession by defendants of the coal deposits as authorized a judgment in ejectment for the possession of the mineral estate, both plaintiffs and defendants claiming through a common source of title, who by deed had made a separate grant of the mineral estate to plaintiffs’ ancestor, there being no question of title by limitations to said separated estate.</p> <p>5. -: -: -: Separate Estate: Right to Surface. Coal deposits, when separated by grant or by reservation in a deed, are as much an estate in lands as is the surface of the same lands; and such an estate carries with it the right to use so much of the surface estate as may be reasonably necessary for the proper use of the mineral estate; and plaintiffs, who by deeds are owners of the segregated mineral estate alone, have the right to sue in ejectment to recover that estate.if it is in possession of defendants who own the surface estate and claim to own and be in possession of both.</p> <p>6. -: Common Source of Title. When plaintiffs in ejectment put „ in deeds which show, that they and defendants claim through a common source, and defendants by their pleadings or proof do not claim a different source, the plaintiffs need not go back of that common source to deraign title.</p>

— Eon. Jesse C. Sheppard, Judge. (1) The abbreviations in all. of the descriptions are such as to make the whole transaction void for want of certainty. When we consider the descriptions where neither the township nor range is given, it certainly cannot be contended that the description is sufficient to locate any land whatever, or to pass title to defendant. Neither can it be said that said descriptions are in any way connected with the other descriptions given.

Louis City Circuit Court. — Now. Virgil Bule, Judge. Respondents’ instruction on the measure of damages was correct, both in form and substance. If the appellant thought the instruction was too general and left the jury too much latitude, it should have asked more specific instructions. Having failed to do so, it cannot now complain. Browning v. Railroad 124 Mo. 71; G-eismann v. Mo. Edison Elec.

■Appeal from St. Louis City Circuit Court. — Hon, George C. Hitchcock, Judge. (1) Equity has jurisdiction to rescind an instrument, the execution of which has been procured .through fraud, actual or constructive, or mistake of fact. Where a court of equity once acquires jurisdiction of the subject-matter and the parties, upon any recognized branch of equitable jurisprudence, it will .retain jurisdiction until a complete disposition has been made of the case.

— Hon. James D.. Barnett, Judge. (1) The petition does not state facts sufficient to constitute a cause of action. It pleads matters which are manifestly mere opinions and which a reasonably prudent person would not rely on. Smith v. Sims, 77 Mo. 274; Johns v. Railroad, 79 Mo. 92; Redpath v. Lawrence, 42 Mo. App. 109; Reed v. Batt, 100 Mo. 66.

— Hon. R. Steel Ryors, Judge. (1) This ease does not come within the provisions of the Act of 1911. Laws 1911, p. 139.

— Ron. Rermomn Brumbach, Judge. (1) Kansas City had no power under its charter to issue any tax bill for any improvement except for such as was authorized by an ordinance of Kansas City and made under a contract let in pursuance thereof. Secs. 2, 3, 5 and 23, art. 9, Charter of 1889; Asphalt Pav. Co. v. Field, 134 Mo. App. 663; Dill. Munc. Corp. (5 Ed.), see. 237.

— Eon. Thomas J. Seehorn, Judge. (1) This policy is to be interpreted by tbe laws of Illinois. According to tbe decisions of the Supreme Court of Illinois, such a clause as that contained in tbe policy sued on, does not make tbe contract absolutely incontestable in cases where false and fraudulent answers are given by tbe insured in bis application.

— Hon. Henry G. Riley, Judge. (1) Appellant having shown a perfect legal title to the land in question and that the respondent was placed in possession of it in 1905, as the tenant of appellant, defendant could not subsequently set up an adverse holding. See. 7885, R. S. 1909.

Louis City Circuit Court. — Ron. George R. Williams, Judge. Held: appointed to act for them and in whose hands they placed this sum for the purpose of paying the remainder of the notes, and upon an agreement that they should be credited by tbe corporation for full payment of any 'liability against them, respectively, as the holders of its unpaid common stock, and that the corporation should become…

<p>Appeal from St. Louis Court of Criminal Correction.— Eon. Benjamin J. Klene, Judge.</p>

Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. The demurrer to the evidence should have been sustained because the undisputed evidence introduced by plaintiff shows conclusively that the fall of the-crowbar upon plaintiff’s head was a mere accident or misadventure, without any negligence on the part of the master.

— Hon. Charles B. Faris, Judge. (1) “The constitutionality of a law is to be tested not by what has been done but what may by its authority be done.” Stuart v. Palmer, 74 N. Y. 183; Agens v. Mayor, 37 N. J. L. 420; Norwood v. Baker, 172 U. S. 269.

— Eon. Francis E. Trimble, Judge. (1) The plaintiff is estopped from obtaining the relief sought in this casé by reason of the acts of his grantors in consenting to and really causing the railroad tracks to be laid in the streets in front of the property for railroad purposes, and in donating the ground for the roundhouse, stockyards and depot, and they and plaintiff, by their laches, in consenting to and acquiescing in the occupancy of the streets by the railroad tracks and…

<p>1. APPELLATE PRACTICE: Exceptions Not Assigned as Error. Objections made and exceptions saved to testimony, not assigned as error in the appellant’s brief, will not be considered on appeal,</p> <p>2. WILL CONTEST: Weight of Evidence. A contest of a will, under the statute, is an action at law, and the appellate court will not pass upon the credibility of the witnesses and the weight of the evidence, if there is substantial evidence to support the verdict. The court will not hold that a demurrer to the evidence on the issue of undue influence should have been sustained, if there is substantial evidence to support the charge, but the issue is relegated to the jury.</p> <p>3.--: Undue Influence: How Shown: Circumstances and Inference. The existence of undue influence may be shown by circumstances, as well as direct proof. In the very nature of things, if such influence is exerted it is most likely exercised in secret and not in the light; and for that reason its existence and exercise are not required to be always established by direct and positive proof.</p> <p>4 .-: -: Question for Jury: Misconception of Children: Confidential Relation. Testator, by a will made a few months prior to his death at the age of sixty-nine years, gave to his widow a life estate in certain town lots and houses with remainder to Park College; and the rest of his estate, which consisted of two farms of five hundred acres and $2000 in money and other certain personal property, he devised to a young man as trustee, to manage, keep in repair, rent and collect the income; authorizing him to keep an oversight of the affairs of his wife and pay her during life one dollar a day and such further part of the income as she might need in case of misfortune; to pay to Park College two thousand dollars out of the personalty, or, if it proved not sufficient, out of the income of the farms; and to divide annually the net balance of the income equally between his son and daughter, during their lives, and upon the death of the survivor to turn over the corpus to their heirs per capita. The scrivener of the will was the lawyer and friend of the testator and Park College and had been for years. He had been the college’s trustee, legal adviser and business manager, had solicited bequests for it and had talked with testator “a lot about the college” and about the gift of $2000. The testator was originally a man of strong physical and mental powers, hard-working and hard-headed. The trustee, who is also made executor, is a son of the scrivener — a college student, twenty-two years of age, who had never managed a farm, rented one, collected rents or kept up its repairs. Testator’s daughter was married and lived in California, and the son was married and lived in Kansas, but aside from these facts no satisfactory reason appears why they were set aside and such extensive powers invested in the inexperienced trustee. They were both intelligent and of mature years, with two children each. Neither had dissipated the property their father had advanced them, and the daughter’s advancement had increased in value. Their personal relations with him had always been good prior to the execution of the will. The scrivener testified that the testator said to him that his son and daughter had not cared for what he had given them and would not care for any other property he might give them. The testator was feeble in mind and body about the time the will was executed, had cancer of the stomach, was usually under the influence of morphine or other drug administered to' alleviate the pain, and often in a stupor. Numerous witnesses testified he was of sound mind at that time, and others to the contrary. Held, that the court could not say as a matter of law that there was no evidence of undue influence, and the question, under the circumstances, was for the jury to decide.</p> <p>5. -: Incapacity: Date of Will: Preponderance of Evidence. Although the preponderance of the evidence is that the will was executed on May Elst, the date it says it was executed, yet if there is substantial evidence that it was executed on July 1st, the question is one of fact for the jury; and there being substantial evidence that it was executed on July 1st, and the testimony that testator on that date lacked testamentary capacity to make a will being amply sufficient, the question of his capacity was one for the jury, although the testimony as to his testamentary capacity on May 31st is at best only debatable.</p> <p>6. -: -: Instruction. An instruction for contestants which tells the jury that the person making a will must be of sound mind and defining sound mind as being “such a mind as enables a person executing a will to be capable of knowing his property, and understanding the reasonable claims of the persons who may have reasonable and natural claims on his bounty,” is not erroneous. In fact, it could be stronger for contestants without transgressing the law.</p> <p>7. -: -: Narcotics. Mental incapacity of the testator at the time of making a will invalidates it, though caused by morphine or other drugs, and though they were administered by a physician for medicinal purposes. Unsoundness of mind may result from an excessive use of narcotics and morphine; and the evidence showing that they were administered, the only question for the jury to determine is whether or not at the time the will was executed testator was of unsound mind.</p> <p>8. -: -: Burden. The burden is on proponents to show by the preponderance of the evidence that testator at the time of the execution of the will was of sound mind.</p> <p>9. -: Natural Heirs. The will devised the property to a trustee, requiring him to collect the income and annually divide it between testator’s son and daughter, and upon the death of the survivor of them to turn over the corpus “to the natural heirs of my said daughter and son” per capita. Held, that the expression “natural heirs” was not used in a technical sense, but the testator meant thereby that his property should ultimately vest in fee in his own blood and his own grandchildren.</p> <p>10.-: -: Necessary Parties. Where the will devised the property to a trustee, with a provision that he should manage it and turn over the net income to his son and daughter during their lives, and at the death of the survivor the corpus should at once vest in their “natural heirs” per capita, the children of the son and daughter then in esse were not necessary parties to a suit to annul the will, nor were their unborn children, either by themselves or by said trustee.</p>

— Hon. Walter A. Powell, Judge. (1) There is a surplus in the block in question and it should be apportioned among the lot owners in proportion to their respective holdings. Crawford v. Ahrnes, 103 Mo. 96; Newcomb v. Lewis, 31 Iowa, 490; Lincoln v.' Edgecomb, 28 Me. 275; Caylor v. Luzadder, 137 Ind. 319; Parks v. Boynton, 98 Pa. St. 370; O’Brien v. McG-rame, 27 Wis. 446; Brooks v. Stanley, 66 Neb. 826; 4 Am. & Eng. Ency. Law, p. 868; Pereles v. Ma-goon, 78 Wis. 27, 23 Am.

<p>1. JUDICIAL NOTICE: Day of Month: Meeting of Court. Tho court takes judicial notice that the first Monday in October cannot be the 11th day of October; also upon what day a court of appeals regularly convenes.</p> <p>2. WRIT OF ERROR: Timely Notice: Twenty Days Before Return Day. The writ of error was sued out July 20, 1909, and made returnable on the first Monday in October, 1909, and in fact was returned July 21, 1909. On September 20, 1909, plaintiff in error gave written notice to defendant in error that the writ would be presented to and heard by the court on Monday, October 11, 1909. The Statute requires such notice to be served •‘twenty days 'before the return day of such writ.” Held, that the notice was not timely, and the writ should be dismissed. The notice was not given twenty days before the return day of the writ.</p> <p>3. LIMITATION: Raised by Demurrer. Where the petition founded on a promissory note discloses that no payment had been paid on the note for thirty-two years, and alleges no novation of promise or other fact to toll the Statute of Limitations, a demurrer to the petition that, the cause of action is barred by the statute, should be sustained.</p>

— Hon. David H. Harris, Judge. (1) The court erred in permitting the prosecuting attorney to. make improper and prejudicial statements in his closing argument to the jury, (a) It was the duty of the court to keep the prosecuting attorney within the bounds of legitimate argument and to administer to him such rebuke as was commensurate with the harm done. Evans v. Trenton, 112 Mo. 395; State v. Spivey, 191 Mo. 112.

<p>BILL OF EXCEPTIONS: Not Signed by Judge: Certificate of Clerk. If the transcript filed in the Supreme Court does not show that the copy of the bill of exceptions embodied therein was signed and sealed by the trial judge, said bill of exceptions cannot be considered on appeal, and there is nothing for review except the record proper. Nor is the defect supplied by an embodiment in the transcript of a record entry that the bill of exceptions had been filed in vacation and had been “signed and allowed” by the trial judge. Whether the case be civil or criminal, it must be made to appear that the bill of exceptions itself, as embodied in the transcript filed in the Supreme Court, was signed and sealed by the judge of the trial court.</p>

<p>1. MURDER: Degree:' Instructions: Appeal. Where defendant was convicted of murder in the second degree, it becomes unnecessary for the Supreme Court to discuss assignments of error in an instruction on murder in the first degree.</p> <p>2. -: Second Degree: Malice: Instructions. It is not error to fail to refer to self-defense in an instruction on murder in the second degree. Malice aforethought, an element of murder in the second degree, is not consistent with the theory of self-defense.</p> <p>3. MANSLAUGHTER: Fourth Degree: Cruel or Unusual Manner: Instructions. Where the evidence all tended to show that a killing was voluntary or intentional, an instruction. was erroneous which in effect required the jury to find that the shooting was not done in a “cruel or unusual manner” before they could find defendant guilty of manslaughter in the fourth degree. Such instruction either undertook to blend the two statutory definitions of manslaughter in the fourth degree, or to confuse with and blend in the definition of manslaughter in the fourth degree, under Sec. 4468, R. S. 1909, the converse or negative of the requirement of manslaughter in the second degree under Sec. 4460. In either case it was error.</p> <p>4. HOMICIDE: Extrajudicial Statements: Instructions: Non,prejudiciai Error. An instruction that what defendant has said against himself the law presumes to be true, but what he has said it his own behalf the jury are not obliged to believe, cannot be held to be prejudicial error even though there is no evidence upon which to base it.</p> <p>5. -: -: Weight of Defendant’s Testimony: Joined in One Instruction. It is error to include in an instruction with reference to weighing the testimony of the accused given at the trial, a further direction as to the law governing the weight to be given to his extrajudicial statements.</p> <p>6. -: Self-defense: Instructions. A clause in an instruction on self-defense, to-wit: “and at the time he' shot he had reasonable cause to believe, and did believe, that it was necessary for him to shoot and hill to protect himself from such apprehended danger, you will find the defendant not guilty on the ground of self-defense,” is not approved.</p>

<p>1. BETTING ON HORSE RACE: Custodian of Money Wagered: Meaning. The legislative intent by the use of the word “custodian” in Sec. 4749, R. S. 1909, was to designate and embrace all persons who knowingly receive and l;old money which the party from whom it is received intends shall be held pending a horse race and be disbursed according to the result of such race. The word embraces any intermediate recipient or holder who takes money into his possession knowing it has been wagered on a horse race and intending to deliver it to another person to be disbursed when the result of the race is known.</p> <p>2.--: -: Information: Sufficiency: Offense Similar to Receiving Stolen Goods. Under existing statutes it is just as much a violation of the law to knowingly receive money as a bet or wager upon a horse race as it is to knowingly receive stolen goods; consequently the rules of 'procedure which apply to the indictment and its sufficiency in a prosecution for receiving stolen goods can properly be applied to a charge of becoming the custodian of money knowingly received as a bet upon a horse race.</p> <p>3.-: -: -: Against Whom Bet Was Made: Surplusage. It is wholly unnecessary that the information charging a defendant with having knowingly become the custodian of money bet on a horse race aver the name of the person against whom the party placing the money with defendant made the bet; or that the party against whom the bet was made is unknown to the prosecutor or that the horse race was to be run in a certain State; and that part of the information may be omitted as surplusage, and if without it enough remains to charge defendant with the offense denounced by the statute, it is sufficient. Under the Statute (Sec. 4749, R. S. 1909) which declares any person who becomes the custodian of any money to be bet upon a horse race shall be guilty of a felony, it is only necessary that the information state the name of the party from whom the money was received and that it was knowingly received, as a bet or wager upon a contest of speed between horses, and that the act was feloniously, unlawfully and wilfully done.</p> <p>4.-: -: When Crime is Complete. "When a defendant received money as a wager upon a horse race his crime of becoming the custodian of money bet upon a horse race was complete, regardless of whether any race thereafter actually took place.</p> <p>5. -: —-:--: -: Variance: Proof Furnished by Defendant. The proof of an allegation in the information may be furnished by defendant. Conceding, without deciding that, in the information charging defendant with receiving money to be bet on a horse race, the unnecessary allegation that the bet was made by the prosecuting witness “against a person to this affiant unknown” having been made. it was necessary to prove that the affiant and such witness did not know, that proof was furnished by the testimony of a witness for defendant who testified that defendant was a clerk in the store of his brother at the time defendant received it as a wager from the prosecuting witness and that the bet was really made with (against) such brother, and by the testimony . of the prosecuting witness that he did not report the name of the brother to the affiant (the circuit attorney).</p> <p>6. -: Form Sheets: Res Gestae. Form sheets showing races scheduled or advertised to take place at a certain city, exhibited by defendant to the prosecutor to induce him to make the bet and deposit his money, with defendant as custodian, as a wager on such race, are competent evidence; and the verbal statements made by'defendant, at the time of so exhibiting such form 'sheets, are competent as part of the res gestae. Such form sheets, so exhibited,, are not to be classed with trade 'journals and newspapers not vouched for by any party connected with the litigation.</p> <p>7. -: -: Judicial Notice: Location of Cities. The court will take judicial notice that by the word “Louisville” in the form sheets, exhibited to the prosecuting witness and therefore competent, reciting that a horse race was to take place at Louisville, was meant Louisville in the State of Kentucky. Courts take judicial notice of the location of all cities which are commercial centers and of the States in which they are located.</p> <p>■ 8. -: Odds on Bet: Allegation: Proof. An allegation in the information that “odds” were bet upon the race did not have any tendency to identify the race nor defendant’s connection therewith, and being an unnecessary allegation, it was not necessary to prove it.</p>

Louis City Circuit Court. — Hon. George G. Hitchcock, Judge. (1) The second count of tbe information did not sufficiently individuate the offense so as to apprise appellant of the nature aftid cause of the accusation or afford a basis for a plea of res adjudícala.

<p>1. FALSE PRETENSE: Information: Several Charges: Proof. Where several false pretenses are jointly charged in the information, it is only necessary to prove that one of said pretenses was in fact untrue. In such case the unproven charge will he treated as surplusage, and need not be submitted to the jury; and if the information contains another charge properly alleged and properly submitted, and it is proven, the conviction will stand.</p> <p>2. -: Limitations. False representations which result in a crime should be treated as having been made at the time their victim delivered his money or property to the party making them. It is.only when the misrepresentations bear fruit by causing some one to part with money or property that the statute is violated. Where defendant delivered to Akerman a note dated May 6, 1908, and payable to his order, and reciting that the maker had deposited or pledged with said “Akerman as collateral security for the payment of this note, deed of trust for $4000, dated April 14th, 1908,” on certain real estate, and there is no evidence that Akerman ever saw the note until May 14, 1908, when it was delivered to him, an information filed on May 9, 1911, is not barred by limitations. Although the note, dated May 6, 1908, bore a false recital that the deed of trust “had been pledged to said Akerman,” and that false recital may have aided in deceiving him, yet the' crime dates from the day the note was actually seen by and delivered to Akerman, which was May 14, 1908' — the facts being that the note was of no value, and on a promise to deliver to him a note for $4000 secured by a deed of trust on valuable real estate Akerman parted with $4000 to defendant or his associate in business.</p> <p>3.---: Conflict in Evidence. The issue of defendant’s guilt of the charge of false pretense, where the evidence of the State makes out a clear prima-facie case, and that for defendant indicates that he is not guilty of any wrongdoing, was for the jury, who looked into the faces of the witnesses and were in a far better position to judge of the truthfulness of their statements than are the judges of the appellate court.</p>

— ■ Eon. William I. Ragland, Judge. Tbe information charges tbe offense in tbe language of tbe statute. R. S. 1909, sec. 4492. When the act defines tbe offense, it is sufficient to charge tbe offense in tbe language of tbe act. State v. Davis, 70 Mo. 464; State v. Adcock, 65 Mo. 590; State v. Block, 82 S. W. 1103.

Louis City Circuit Court. — Hew. George G. Hitchcock, Judge. (1) Section 4770, R. S. 1909, sufficiently individuates the offense, and so the indictment, in all its three counts, properly follows the language of the statute. It is not necessary that it should define a lottery, etc., or allege in what manner it was made or established.

Louis City Circuit Court. — Eon. Leo 8. Rassieur, Judge (1) The information follows the language of the statute and contains every essential element necessary to the offense charged. Secs. 4346, and 4351, E. S. 1909; Sherwood’s Com. on Crim. Law, pp. 413-416; Kelley’s Grim. Law & Prac. (2 Ed.), p. 563. The use of the words “maliciously and falsely” sufficiently charges that the defendant knew the witness would swear falsely.

<p>1. APPELLATE JURISDICTION: Suit to Foreclose Mortgage. Where the defense to a suit to foreclose a deed of trust is that it was procured by fraud, and the answer seeks to have it annulled for that reason, the title to land is directly put in issue, and the appellate jurisdiction is exclusively vested in the Supreme Court.</p> <p>2. MARRIED WOMAN: Conveyance of After Acquired Property. Under the statute in force on May 12, 1904 (Sec. 901, R. S. 1899), a deed of trust signed by a married woman and her husband, given to secure the payment of a note signed by both, upon land which neither owned at the time, did not operate to convey her interest acquired by purchase from the real owner after her husband’s death.</p> <p>3. -: -: Effect of Married Woman’s Act. The Married Woman’s Act of 1889, giving to a married woman many rights of a feme sole, did not take away from her the protection as to covenants in the conveyance of her lands afforded by section 901 prior to its amendment in 1905.</p> <p>4. WITNESS: Competency: One Party Dead: Called by Other Side. The statute disabling a witness from testifying under certain circumstances where the other party to the cause of action, or contract is dead, was intended to exclude such person as a witness on bis own behalf or on tbat of those in privity with him against the objection of the adverse party. If Ms testimony is not objected to, or if be is called by tbe other- party, the statute has no application.</p>

<p>1. NEGLIGENCE: Instruction: Blacksmith: Duty to Repair Tools. It was the duty of a blacksmith, of thirty-five years’ experience, employed as such in an iron foundry, in the absence of an agreement or rule to the contrary, to repair and keep in order the chisel with which he was injured and which he was holding against a rivet in a boiler while it was being struck by another employee, although he had been especially assigned to that work. The master may entrust to his servant the performance of the intermediate, ordinary and simple duties incidental to the servant’s employment and resting in the servant’s knowledge and skill.</p> <p>2. -: -: -: -: No Evidence. To instruct on a proposition which there is no evidence to support, is erroneous; hut where it was plaintiff’s duty to repair the chisel before using it, it was harmless error to instruct the jury that plaintiff could not recover if the chisel was defective and was allowed to become so by him, although there is no evidence that he caused or permitted it to become defective.</p> <p>3.' -: -: -: -: Selecting Others. Whether or not there were other chisels of the character of the one which injured plaintiff in the box from which he or a fellow-servant made the selection, is immaterial, where it was his duty to repair the chisel before using it, if he thought those in the box were not reasonably safe.</p> <p>-: Fellow-servant: Question of Law: Submitted to Jury. To submit to the jury at defendant’s request the question whether another blacksmith was a fellow-servant of plaintiff blacksmith, where the uneontradicted evidence is that they were fellow-servants, is error, but error of which plaintiff cannot complain, because in his favor.</p> <p>5. -: Verdict: Based on Conjecture. Where the evidence tends no more to show that the small particle of steel that flew into plaintiff’s eye came from the chisel he was holding in his hand than from the rivet in a boiler upon which the chisel rested when it was hit by a fellow-servant, a verdict for defendant is proper, where plaintiff’s petition charged that it came from the chisel.</p>

— Hon. James T. Neville, Judge. (1) The court erred-in forcing a compulsory reference herein and thereby depriving defendant of her constitutional right to a trial by jury. Held: because the finding and judgment in favor of appellant upon the first count in the petition, which is based upon the contract, and the only finding of the referee and judgment of the court against appellant is on the second count in the petition, which does not involve the contract.

Louis City Circuit Court. — Hon. Matt G. Reynolds, Judge. (1) The trial court erroneously decided the case on questions of res adjudícala and estoppel in pais, .not raised by.the pleadings or entered into at the trial. A defense of estoppel or of res adjudícala must be pleaded. Sanders v. Chartrand, 158 Mo. 161; Bray v. Marshall, 75 Mo. 327; Tyler v. Hall, 27 Am.

<p>1; PRACTICE: Peremptory Instruction for Plaintiff. Where the petition states a cause of action and its allegations are proven, and the answer contains neither a general nor a specific denial, but only affirmative defenses which do not constitute a cause of action, it is not error for the court to peremptorily direct the jury to find for plaintiff.</p> <p>2. NEGLIGENCE: Peremptory Instruction for Plaintiff. Where the petition alleges general negligence on the part of defendant in the operation of its railroad and trains, on one of which plaintiff’s husband was being carried at the time he was killed in a collision between defendant’s trains, and defendant’s answer admits it was a common carrier and that plaintiff’s alleged husband was on defendant’s train at the time a collision took place, and avers that he was riding on a pass issued at the request of the United States Government by which he had been placed on said train for the purpose of distributing mail, that he assumed all risk of injury that might occur to him by reason of the fact that he was so carried on said train, and that plaintiff had received from the Government an indemnity or insurance of $1000 for her husband’s death, which payment was a bar to the action, on proof that plaintiff’s husband was killed in the manner stated in the petition, that he was her husband, and that his death occurred through the negligence of the station agent in failing to deliver a telegraphic dispatch notifying the trains at what point they should pass, the court is authorized to give a peremptory instruction to the jury to find for plaintiff. The answer contained neither a general nor a specific denial of the allegations of the petition, but the only issues tendered were the affirmative defenses set up by it, and they did not constitute a-defense. Such an answer does not traverse any statement of the petition, and hence does not deny that .deceased was plaintiff’s husband.</p> <p>LAMM, J., dissenting on the point that the answer raised no issue of fact because of its form, but concurring on the ground that the technical error of directing a verdict for plaintiff in no way affected the merits, since only one verdict is possible under the established facts or would be tolerated or allowed to stand by the court.</p> <p>3. -: Postal Clerk: Riding on Pass. The fact that plaintiff’s husband was a mail clerk, riding on defendant’s train on a pass requested by the United States, did not render him any the less a passenger.</p> <p>4. -: --: Indemnity from Government. The fact that plaintiff received from the United States one thousand dollars as an indemnity for the loss of her husband, killed by a collision while he was riding on defendant’s train and engaged in distributing the mails, did not debar her from bringing and maintaining suit against the railroad company for negligently killing him.</p> <p>5. -: Instruction: Measure of Damage. The negligent failure of a railroad company’s servants to cause the telegraphic . orders for the running of its trains to be delivered to the trainmen and to be observed, is negligence of the kind referred to in Sec. 5425, R. S. 1909.</p> <p>6. -:--: -: Error Invited by Defendant. An instruction asked by defendant and refused by the court, telling the jury that $2000 was the proper verdict unless they should believe that plaintiff would have received more from her husband in money and support had he not been killed, invited any error the court may have committed in giving an instruction for plaintiff telling the jury that they must assess her damages for the negligent killing of her husband at not less than $2000, and invited any error the .court may have committed in submitting the case as one authorized by Sec, 5425 instead of by Secs. 5426-7, R. S. 1909.</p>

— Hon. Nick M. Bradley, Judge. So strong is the legal presumption that a written contract, unambiguous and complete in itself, contains all the terms of the agreement between the parties that parol evidence will not be heard in an action on a contract to vary or contradict its terms. Meredith v. Holmes, 105 Mo. App. 352; Evans v. Mfg. Co., 118 Mo. 646; Tracy v. Iron Works, 104 Mo. 193.

— Eon. Eenry G. Riley, Judge. (1) No notice of the application to sell the real estate was personally served on the heirs of Lot Fletcher, each and all of whom were residents of New Madrid county. The statute requires personal service of such notice; it is a necessary prerequisite; and in the absence of such notice to the heirs, as in this case, the probate court is without authority or jurisdiction to order a sale.

<p>Appeal from Lafayette Criminal Court. — Hon. John A. Rich, Judge.</p> <p>Transferred to Kansas City Court of Appeals.</p>

<p>'Appeal from St. Louis County Circuit Court- — Hon. G. A. Wur deman, Judge.</p>

<p>1. APPEAL: Fjling Transcript. Upon an appellant from a judgment condemning him of any kind of felony except a capital offense, as upon an appellant in a civil case, the statute places the duty of causing to be filed in-the office of the clerk of the Supreme Court a perfect transcript. Such an appellant must not only himself see that his transcript is transmitted to and filed in the office of the clerk of the Supreme Court, but he must also see that it is filed and entered on the docket in the proper manner.</p> <p>2. -: -: In Criminal Case: No Payment of Filing Fee. The appeal of a defendant, prosecuted and convicted of a felony other than a capital offense, there being no order permitting him to prosecute 'his appeal as a poor person, will be dismissed if he does not, within one year after the appeal has been granted, pay or tender to the clerk of the Supreme Court the fee of ten dollars required by Sec. 10697, E. S. 1909; and the timely filing of his bill of exceptions in the trial court, and the certification of the transcript by the clerk thereof to the Supreme Court, and the lodging of the same with the clerk of the Supreme Court, are not enough, but he must perfect his appeal by the payment or tender of said filing fee, or show good cause for the delay. , .</p> <p>3.--: -: -: Filing. The technical meaning of the word “file” is legion; as the facts differ, so does its meaning differ. The mere lodging of a transcript with the clerk of a court does not of itself constitute a filing, if there is a statutory condition precedent remaining to be performed. Nor does the placing of a file-mark on the paper, with the teste of the clerk, constitute a filing, but is only evidence of a filing; but absent such file-marks there is no evidence that the transcript has been filed in the Supreme Court or the appeal perfected in the manner required by the statute, Sec. 5313, R. S. 1909.</p> <p>i. -: -: -: As Poor Person. An order of the trial court permitting an appellant to prosecute his appeal as a poor person will not of itself bind the Supreme Court and relieve the appellant of the duty of paying the filing fee required by the statute. It may be persuasive, upon a timely application to the Supreme Court for permission to prosecute the appeal as a poor person, but not binding, because there is no express statute upon the.subject and it is only by the vaguest statutory inference alone that it can be said that the Supreme Court has the right to permit the prosecution of an appeal without the payment of costs; and in any event, an application to prosecute as a poor person ought to be made in the Supreme Court before the lapse of the one year designated by said Sec. 5313, R. S. 1909.</p>

Louis Court of Criminal Correction. ■ — Hon. Galvin N. Miller, Judge.. (1) The amended information plainly attempts to charg’e two offenses as growing out of a single act.