Volume 263 — Missouri Reports

— Hon. Samuel Davis, Judge. (1) The General Assembly of the Cumberland Church was invested by the constitution of the church with supreme legislative, executive and judicial power, and was the highest court óf the church, and “ represented in one body all the particular churches thereof,” and, with the consent of a majority of the presbyteries had the power to form the union with the Presbyterian Church U. S. A., and all the steps required to bring about that union was…

Mandamus. (1) Mandamus is tlie only available remedy, (a) There is no statutory authority for an appeal. A refusal to make an order of distribution is not “a final order or judgment of the probate court” from which an appeal may be taken. Sec. 463, R. S. 1909, assimilates appeals in cases of administration of the estates of minors and the estates of deceased persons.

<p>For the reasons stated in Hayes v. Manning, ante page 1, uie judgment in this case is affirmed.</p>

<p>INTERSTATE SHIPMENT: From Hale, Mo., to Kansas City Stockyards: Estoppel by Contract. A shipment of stock from Hale, Missouri, to the Kansas City Stock Yards, the place for unloading the stock being on the Kansas side of the line dividing Missouri and Kansas, is an interstate shipment; and the fact that, after the stock were transported in the cars across the State line into Kansas and were there unloaded, they were driven on foot back across the State line to sale pens in Missouri allotted by the Stock Yards Company to the shipper’s commission merchant, and there exposed to sale ■ and sold, had no effect whatever on the character of the shipment made by the railroad company.</p> <p>Held, by GRAVES, J., dissenting, with whom BROWN, J., concurs, that, it being undisputed that the effreightment contracts read “from Hale, Mo., to Kansas City, Mo.,” the railroad company, having thus contracted, cannot gainsay the terms of its contract so far as to make an interstate shipment out of a contracted intrastate one, but is estopped by the contract from making such a claim.</p>

<p>1. CONSTITUTIONALITY OF STATUTE: Presumption. A friendly and strong presumption in favor of the constitutionality of a statute is indulged by the courts. Its nullity must be of such pronounced and imperative character as to put its unconstitutionality beyond any reasonable doubt whatever before a court will be justified in declaring it invalid.</p> <p>2. -: Waiver: Estoppel: Interest of Objector. A party may on the facts waive his right to challenge the constitutionality of a statute, or he may he estopped, or this or that challenge may he parried for the reason that the question in hand does not concern his own individual rights on the case made.</p> <p>3. -: No Reasonable Doubt. If the purported statute is beyond all reasonable doubt fatally vicious in a constitutional sense, courts do not coyly toy with such a situation but will declare it no law at all, provided the question of its validity has not been waived, or the challenging party is not estopped, and provided always it appears that his individual rights, as contradistinguished from another’s, are affected.</p> <p>4. -: Once Decided. The usual rule is to consider constitutional questions once decided as no longer open. But the right doctrine, to be discriminatingly applied, is that a court for the correction of errors in other courts should be willing to cor- ' rect its own where its opinions are shown to be radically wrong, whether on a new appeal in the. same case or in another case, unless property rights springing from the maxim of stare decisis are affected.</p> <p>5. -: Estoppel: Suit on Bond. A litigant may be estopped to assert the unconstitutionality of a law in a suit on a bond given under it from which he has received benefits.</p> <p>6. -: -: Fees of Probate Judge. Where the probate judge in a suit against him in which he is charged with having retained fees in excess of the amount allowed him by a certain statute, went into office after said statute was enacted and the fees he has retained were fees it authorized him to collect, he is estopped to assert the unconstitutionality of- the statute, for he has availed himself of the benefit of the statute alleged to be unconstitutional. [Distinguishing Wood v. Kansas City, 162 Mo. 303.]</p> <p>7. -: -: Taking Office Under Statute. Where an officer takes office under an existing statute and collects fees thereunder authorized by it, he is estopped to deny its validity, when called upon to account for fees he is not by it permitted to retain.</p> <p>8. -: -: Repeal of Old Law: Reenactment: Two Parties. In the matter of official fees there are two parties interested in the law establishing them and in the fact of their collection, namely, the payor and payee. If the fees are paid under an existing statute, which limits the amount the officer may retain to a maximum amount, he cannot he heard to say that such statute repealed the existing law and being unconstitutional the existing law was revived or was the law under which he took office and it fixed no such maximum limit.</p> <p>9. -: -: -: Inseparable Invalid Proviso. In 1905 the General Assembly in terms repealed the existing statute relating to probate fees, and reenacted that part of it establishing an itemized list of fees and the single proviso, and then went on and added two other provisos, by the second of which (being the third of the entire act) it. fixed a limit to the amount of fees that could be retained by the probate judge for any one year. If this proviso could be held inseparable from the rest of the act, and unconstitutional, and being invalid the whole act would perish with it, and the existing statute which it attempted to repeal brought back into life, defendant would not be liable for the fees which he is charged with having illegally retained. Held, that the whole law was not built around this alleged invalid proviso, that it cannot be held to be inseparably connected with the rest of the act, and that, defendant having accepted office under it and collected the fees which it authorized, cannot be heard to question the constitutionality of the proviso regulating the disbursements of those fees.</p> <p>10. -: Sale of Justice: Excessive Fees: By Whom Raised. It cannot be held that to levy tribute on orphans’ estates, in the shape of probate fees, is not a sale of justice in so far as those fees trickle into the pockets of the probate judge, and is a sale of justice in so far as the excess above a maximum amount he is permitted to retain is paid over to the county treasury for the use of the school fund. Even if that were true, it is a point the probate judge cannot raise when he is sued for such excess, for it concerns those who pay the fees, and not those who retain them.</p> <p>11. -: Fees: Same as Salary of Circuit Judge: Increased After Election of Probate Judge. The act of 1905 provided that the amount of fees a probate judge could retain as his compensation could not exceed the salary of the circuit judge, plus ten per cent of the excess, and defendant was elected in 1910 for a term of four years. The act of 1911 constituted judges of the circuit court in-certain counties jury commissioners and gave them a certain salary for such ministerial services “under this act, as'jury commissioner solely.” Held, that, whether or not the act of 1911 increased the compensation of a probate judge elected after its enactment by the amount of such commissioner’s salary, it does not increase that of one elected prior to its enactment and still in office.</p> <p>12. -: -: Doing Clerk's Work. The compensation of a probate judge is fixed by statute, and cannot be increased by a construction of that statute. The fact that he does much of the clerical work himself, and might, if he cliose, legally consume more of the fees in clerk hire, will not justify him in laying claim to any part of the fees not so consumed or increasing Ms own compensation thereby. He cannot be paid according to the rule of quantum meruit or quantum valebant.</p> <p>13. CONSTITUTIONAL LAW: Probate Judge’s Salary: Substantial Historical Reason. In determining the validity of the third proviso to the act of 1905 fixing the amount of fees a probate judge might retain as his compensation, the court will not blink the substantial historical reason for its enactment, namely, that it was meant to remedy the disproportionate and inordinate salaries of probate judges,</p> <p>14. -: —■-: Regulation According to Population. The provision of section 12 of article 9 of the Constitution, declaring that “the General Assembly shall, by a law uniform in its operation, provide for and regulate the fees of all county officers, and for this purpose may classify the counties by population,” does not mean that the fees shall be regulated according to population only; it did not establish a; hard-and-fast and necessary rule for classifying counties according to population, but at most made such method of classification permissible. Besides, it relates only to fees which may be charged and collected, and says nothing as to the distribution or reterXion of the fees after they have been collected.</p> <p>15. -: -: Special Statute: Judicial System: County Officers. Probate courts come within the reason of the doctrine, uniformly held in this State, that the judicial department is a composite unit, that it is a whole, and that therefore acts dealing with the courts are usually held to be general, though not applicable to every court of like nature in the State. That doctrine fortifies the ruling in the case of State ex rel. v. Imel, 242 Mo. 293, that judges of probate courts are not county officers in the constitutional sense.</p> <p>16. -: -: Same as That of Circuit Judge: General Statute. The third proviso to the act of 1905, declaring the amount of fees probate judges in certain counties may retain as their compensation shall not exceed the salary of the circuit judge, etc., although the statutes are so framed as to bring about inequalities in the salaries of circuit judges, is a general law.</p> <p>17. -: -: Criminal Provisions Special. In a civil suit to recover from the probate judge fees retained by him in excess of the amount allowed to him by, "statute, the statute will not be held to be a special law for that it denounces certain acts done in one county as a crime, when if done in another they are not. That question can be considered only in a case wherein a probate judge has been charged with violating the criminal feature.</p>

<p>1. REMOVAL OF CAUSES: Interstate Commerce: U. S. Employer’s Liability Act. An interstate railroad company engaged in interstate commerce, cannot have removed to the F'ederal court a suit for damages for personal injuries to one of its brakemen brought under the Federal Employer’s Liability Act, which provides that “the jurisdiction of the courts of the United States under this act shall be concurrent with the courts of the several States, and no case arising under this act and brought in any State court of competent jurisdiction shall be removed to any' court of the United States.” The jurisdiction of the inferior courts of the United States in every case depends upon the acts of Congress, and, though the act creates a right of action, this language affects only the remedy, and it explicitly forbids a removal of the action to a Federal court.</p> <p>2. CONSTITUTIONALITY OF U. S. STATUTE: Jurisdiction of State Court. Courts of general jurisdiction in the several States have power to decide cases involving the rights of litigants under the Constitution or statutes of the United States, unless deprived of the right so to do by the terms of said Constitution or statutes; and such decisions are conclusive upon the parties unless reversed by the Supreme Court of the United States, upon a writ of error, or after a removal of the case to a Federal court in accordance with the acts of Congress. A circuit court of -this State has power to decide whether a statute of the United States is or is not constitutional; there being reserved the right of a writ of error from the Supreme Court of the United States to the State court of last resort, where the State court has made a decision adverse to the party suing out the writ, upon some right or immunity guaranteed to him by the Federal statute.</p> <p>3. NEGLIGENCE: Interstate Railway: Employer’s Liability Act: Defective Facilities. The second clause of the first section of the Employer’s Liability Act of the United States of April 22, 1908, gives a right of recovery upon proof (1) of a negligent defect or insufficiency of the physical instruments of transportation or other equipment of an interstate carrier, and (2) the injury or death of one of its servants due to such negligent defect or insufficiency.</p> <p>4. -: -: -: -: Water Crane. Unless it can be said as a matter of law that the railway company exercised ordinary care in placing the water crane of its standpipe •sufficiently distant from passing freight cars as to avoid injury to brakemen riding on the ladder of said passing cars, it will not be held that the administratrix of a brakeman who, while riding on the ladder of a freight car, in the performance of his duties, was struck by said water crane, and was killed, cannot recover.</p> <p>5. -: -:-: -:-: This Case. Plaintiff’s cause of action is predicated upon the negligence of an interstate carrier, engaged in interstate commerce, in locating a standpipe or water crane at a point too close to the sides of its passing freight cars to be reasonably safe for her deceased husband to use the ladder at the side of the car in the performance of his duties as head brakeman. The time was a dark night; the train was moving from a main track to a side track, and the brakeman mounted the ladder of a car for the purpose of signaling the conductor to stop the train; in the performance of this duty his body collided with the standpipe or water crane, which was so located as to be not more than twenty-two inches from the side of the passing car; the centers of the main and side tracks were fifteen feet apart, and the standpipe was equidistant from them. Other railroads placed similar standpipes at a greater distance. The standpipe was on defendants’ yards, and it had ample room to widen the distance between the two tracks, or to locate the water crane at a point where the tracks were further apart, and this was done by other railroads. Held, that, despite evidence for defendant of a contrary nature, it cannot be said that defendant exercised ordinary care to install the water crane at a sufficient distance from passing cars, and the evidence made a case fdr the jury on the issue of negligence on the part of the defendant in providing a reasonably safe place for the performance of the duty imposed upon the brakeman; and in so holding, the fact that the performance of such duty on a dark night was in contemplation, is to be kept in view.</p> <p>6. CONTRIBUTORY NEGLIGENCE: As Defense Under U. S. Employer’s Liability Act. Section 3 of the Employer’s Liability Act of the United States has abolished contributory negligence as a complete defense to any action brought under its provisions. Contributory negligence can still be shown, not to preclude a recovery, but only to diminish the damages awarded by the jury, in proportion to the amount-of negligence attributable to the injured employee.</p> <p>7. ASSUMPTION OF RISKS: Under U. S. Employer’s Liability Act: Master’s Negligence. Section 4 of the Federal Employer’s Liability Act provides that the doctrine of assumption of risks shall not be available as a defense in any case where the railroad company has violated the statute in reference to providing safety appliances and proper equipment on its trains; and that means that the servant does not assume the risks where his injuries are due to the master’s negligence in furnishing an unsafe place or defective tools; and the master’s negligence in such case is to be adjudged according to the common-law rule. If the injury was inflicted on defendant’s brakeman by the negligent failure of the defendant to furnish him a safe place in which to work, the brakeman did not assume the risk of injury resulting from such negligence.</p> <p>8. -: Caution: Telegram. A telegram sent to trainmen de- . daring that the water crane, with which the brakeman’s body collided as he was on a ladder of a passing car, “will not clear a man hanging too far outside of car,” did not require him not to hang outside of the car in performing his duties of signaling the train, as he and other brakemen customarily did with the knowledge of defendant’s officers, but merely cautioned him in a vague way to exercise ordinary care, and will not support a special plea of assumption of risks.</p> <p>9. -: Contract. A contract entered into by a brakeman with the railroad company whereby he assumed to take care- of himself as far as the existing and known dangers of his employment are concerned, cannot he held to be an assumption of the risk of injury from a collision with a water crane erected a year after the contract was made.</p>

<p>1. ESTOPPEL: Must Be Pleaded. Estoppel must be pleaded unless (1) it arises in sucb wise as to afford no opportunity to plead it, or (2) be shown by plaintiff’s proof.</p> <p>2. -: Holding Back Defenses. If a case is to be tried by piecemeal the end of a lawsuit would never be reached. At the trial of the case all issues and all defenses should be brought forward.</p> <p>3. -: Answer: Amendment After Reversal With Directions. Where defendant’s only plea in an equity suit for an accounting at the first trial was a general denial, and on appeal the cause was remanded with directions that the new trial should be confined to the single issue of the value of the land, “all other issues having been properly tried and determined,” with leave to either party to so amend the pleadings “as to clearly draw the issue upon this one question of value,” defendant cannot be permitted to file a new answer bringing in the issue of plaintiff’s estoppel to claim more than a specified sum, or raising the issue of ratification.</p> <p>4. -: Accounting: Letter Agreeing to Take Less. A letter written by plaintiff to defendant, at a time when he was in pressing need of money and pinched with debt, offering to take a certain amount of money in settlement for his interest in the land which defendant claimed absolutely, and which the court holds that defendant held in trust for him, cannot be used as an estoppel in his suit for an accounting and to recover the value of the land, sold by defendant; but is competent as evidence bearing on the issue of what plaintiff then considered the value of the land.</p> <p>5. VALUATION OF LAND: Flxed'on Appeal. Exercising its prerogative to try an equity case de novo, the Supreme Court holds that, in the valuation of sixty-five acres of land belonging to plaintiff and bought in by defendant under a friendly foreclosure sale, and then wrongfully sold by it, thereby converting the proceeds, the trial court fell into error in disregarding the value of the improvements, such as dwelling house, barn, etc., and the chancellor’s valuation of $52,500 is raised to $58,887.</p>

<p>1. MASTER AND SERVANT: Scope of Employment: Laborers Living in Bunk Cars: Escape of Fire: Washing Clothes: Not Necessary Incident of Living. Railroad laborers, wlio while off duty and not in charge of an employee of the road, built a fire on the right of way and near the bunk cars in which they lived, for the purpose of heating water to wash their clothes, were not acting within the scope of their employment so as to render the railroad liable for their negligence to the owner of adjoining property destroyed by fire communicated from the one they built.</p> <p>2. NEGLIGENCE: Railroads: Combustibles on Right of Way: Evidence. Where there is no evidence that any combustibles on the defendant railroad’s right of way became ignited and communicated fire to the plaintiff’s property, defendant’s negligence, if any there was, in permitting combustibles to accumulate was not the proximate cause of the plaintiff’s damage.</p> <p>3. NUISANCE: Bunk Cars for Laborers: Adjacent Property: Loss by Fire. A railroad company did not- create a nuisance by placing bunk cars, in which its laborers lived, on its right of way adjacent to the property of the plaintiff, and accordingly it is not liable on that ground alone for loss caused by a fire kindled on the right of way by the laborers to heat water to wash their clothing, and communicated to the plaintiff’s property.</p> <p>4. NEGLIGENCE: Railroads: Dry Vegetation on Right of Way: Statutes: Loss by Fire. Sections 3150 and 3151, R. S. 1909, relating to fires set out by engines and those communicated by the ignition of dry vegetation negligently permitted to remain on the right of way, do not render a railroad liable for damage caused by a fire kindled on its right of way by its laborers, outside the scope of their employment, and communicated to adjoining property without the ignition of trash or rubbish on the right of way.</p> <p>5. -: Escaping Fire: Liability of Owner of Premises. The owner of premises who discovers fire thereon, for the origin of which he is not responsible, is hound to use ordinary care to prevent such fire spreading to adjoining property.</p> <p>6. MASTER AND SERVANT: Notice: Scope of Employment. The knowledge of railroad laborers who, while acting outside the scope of their employment, kindle a fire on the right of way, is not to be imputed to the -company so as to bind it to the use of due care to prevent the spread of fire.</p> <p>7. NEGLIGENCE: Master and Servant: Duty of Passenger Conductor Who Sees Fire From Train. Where a passenger conductor saw on the right of way a fire burning under a wash kettle, in charge of laborers and not apparently dangerous to neighboring property, the company cannot be held liable, on account of his failure to stop his train and extinguish the fire, for any loss that may have resulted from its escape later.</p>

<p>Appeal from Jackson Circuit Court. — Hon. Thomas J. Seehorn, Judge.</p>

— Hon. James D. Barnett, Judge. (1) To bold that section 3078 is applicable to defendant would be contrary to section 15 of article 2 of tbe Constitution of Missouri and contrary to section 10 of article 2 of tbe Constitution of tbe United States, wbicb forbid tbe passage of acts retroactive in operation or which impair tbe obligations of contracts.

— Hon. D. E. Blair, Judge. (1) Newell conveyed Ms half interest to Ms mother, A. Gr. Newell. It is claimed by respondent that there was no consideration for this deed, and that the effect of the conveyance was to vest the legal title to the half interest in the land in A. Gr. Newell, as trustee, for J. P. Newell. A voluntary conveyance is subject to such a construction against an existing creditor, but not as against a subsequent creditor.

— Eon. John P. Butler, Judge. (1) The circuit court of Linn county had no jurisdiction over the subject-matter of the action. Such jurisdiction is vested in the probate court. Sec. 22, art. 6, Constitution 1875; Sec. 1674, R. S. 1899; Sec. 34, art. 6, Constitution 1875; Secs. 191, 192, 1753, R. S. 1899; Mt. Olive and St. Louis Coal Co. v. Slevens, 56 Mo. App. 107; Hoffman v. Hoffman, 126 Mo. 486; Beekman v. Richardson, 150 Mo. 436; Matson & May v. Pearson, 121 Mo.

— Ho». Nat M Shelton, Judge. (1) The purported deed through which defendants claim title being limited by its terms to take effect on the death of the grantor, is testamentary in' character and, not being executed according to the requirements of law for the execution of a will, it is invalid as such.

- — Hon. J. G. Slate, Judge. (1) The judgment must conform to the verdict. It is a universal principle of law that the judgment must respond to and be based upon the verdict.

— Eon. A. D. Burnes, Judge. The court having rendered a premature judgment at the September, 1911, term of court, it had no authority at a subsequent term to set aside that judgment and render another and an entirely different judgment. Courts at a subsequent term cannot cor-rect the mistakes of the judge or render a judgment different from that actually rendered at the previous term.

<p>RECORD PROPER: No Showing of Motion for New Trial: Bill of Exceptions not Considered. When the record proper makes no mention of the filing or overruling of a motion for a new trial, the Supreme Court cannot consider the hill of exceptions, and finding no error in the record proper the judgment will he affirmed.</p>

<p>1. INSTRUCTIONS: Defendant’s Statements Out of Court: Whether Voluntarily Made. A proper instruction in a criminal trial on the weight as evidence of the defendant’s statements out of court is approved, and the question whether or not they were voluntary need not be embodied therein.</p> <p>2. -: -: -: Collateral Matter. Whether or not statements made out of court by a defendant in a criminal trial were voluntary, is a collateral matter upon which the court is not bound to instruct unless so requested by the defendant.</p> <p>3. SUPPLEMENTARY MOTION FOR NEW TRIAL: Filed Out of Time. A supplementary motion for a new trial in a criminal case filed five days after verdict is invalid as filed out of time.</p> <p>4. RECEIVING STOLEN GOODS: Verdict: Knowing Them “to be Stolen.” The use of the words “knowing them to be stolen,” instead of “to have been stolen,” in a verdict finding the defendant guilty of receiving stolen goods, does not invalidate the verdict.</p>

Louis City Circuit Court. — Hon. Kent K. Koerner, Judge. (1) The verdict is a special verdict and is bad.

<p>j.. SODOMY: Evidence. Evidence held sufficient to support a conviction of sodomy.</p> <p>2. -: Instructions: Ail the Law of the Case: Motion for New Trial: Appeal. The motion for a new trial must specify wherein the court in a criminal trial failed to instruct on the law of the case, and the general assignment that the court failed “to instruct on all the law governing the case” presents no point for appellate review.</p>

<p>Appeal from Carter Circuit Court. — Hon. W. N. Evans, Judge.</p>

<p>Appeal from St. Louis City Circuit Court. — Hon. Kent K. Koer.ner, Judge.</p>

— How Guy D. Kirby, Judge. (1) Appellants claim tlie right to redeem, and an accounting, and the payment of the $1000' on the theory that respondents’ acts were unfair, fraudulent and over-reaching. (2) Respondents agreed with appellants that they might redeem and that they might have time and opportunity to raise the money to satisfy the judgment of foreclosure.

Louis City Circuit Court. — Hon. Kent K. Koerner, Judge. (1) The recognizance was in writing and taken by the judge of the court as provided by statutes. The statutes were complied with in every particular and no error appeared. Sees. 5048, 5134, R. S. .1909; State ■ v. Zwiffle, 22 Mo. 467; State v. Randolph, 22 Mo. 474; State v. Epstein, 186 Mo. 100; State v. Eyerman, 172 Mo. 305. The signatures to the recognizances are sufficient and the recognizance was properly taken.

<p>1. EVIDENCE: No Proper Objection: Appeal. The objection that testimony is incompetent, irrelevant and immaterial raises no point for appellate review.</p> <p>-: Objection Sustained: Appeal. The defendant convicted of defiling a female under eighteen years of age confided to his care and protection has no point for appellate review where his objection to testimony concerning the prior guardianship of the prosecutrix by an orphan’s home was sustained 'on the ground that the records of the probate court were the best evidence.</p> <p>3. -: Register of Births: Orphan’s Home: Showing Age of Prosecutrix. Under Sec. 6297, R. S. 1909, providing that when, by the ordinance or custom of any religious society in the State, a register is required to be kept of births, such register shall be admitted in evidence, the record of the Missouri Baptist Orphan’s Home was competent, in a trial for defiling a female under eighteen years of age, to show the date of the birth of the prosecutrix, who had been an inmate of the home.</p> <p>4. DEFILING FEMALE: Several Acts: Election: Waiver. A defendant on trial for defiling a female under eighteen years of age confided to his care and protection, has the privilege, when the evidence tends to show several acts of intercourse within the three years next preceding the filing of the information, of requiring the State to elect upon which act it will proceed, but where he does not exercise his privilege, and the State does not elect, and he is found guilty, he will be held to have waived the privilege.</p> <p>5. JUDGMENT: “You” for “Defendant.” A judgment and sentence which, after naming the defendant and proceeding in regular form, directs that “you” be imprisoned, etc., leaves no room, when the full context is considered, for doubt as to the identity of the person to be punished, and the cause will not be remanded for a new judgment and sentence.</p> <p>6. -: Uncertainty as to Place of Imprisonment: Corrected by Supreme Court. Where a recital that the defendant “stand committed to the custody of the sheriff until he be legally discharged by due process of law,” renders a judgment uncertain as to the place of imprisonment, the Supreme Court, by virtue of Sec. 5316, R. S. 1909, will sentence the defendant to the proper place of imprisonment.</p>

— Hon. L. B. Woodsidé, Judge. (1) The information is signed “Corrie L. Arthur” with no official designation as prosecuting attorney. The verification thereto does not cure it; the affiant does not make' oath, that he, the signer thereof, is prosecuting attorney. The information therefore was not “signed by the prosecuting attorney” as is required by statute, hut was void and should have been quashed or the judgment thereunder arrested.

<p>NO BILL OF EXCEPTIONS: Record Proper. Where no bill of exceptions is filed, the Supreme Court upon appeal is limited!- to a consideration of the record proper, and when that is free from error the judgment will be affirmed.</p>

<p>1. MOTION TO QUASH INFORMATION: Names of Witnesses Indorsed After Filing: Time to Investigate. Where a defendant charged with murder moved to quash the information on the ground that he had not had sufficient time to investigate additional .witnesses whose names had been indorsed on the back of the information after it was filed, and to the court’s offer to allow the case to go over in order to afford him more time his attorney replied that he did not care to have it put over, and the court then overruled the motion to quash and the trial proceeded to conviction, the court’s action was fair and did not violate or prejudice any of the defendant’s rights.</p> <p>2. CONFESSION: Evidence: Presence of Defendant’s Attorney. A confession made by an accused is admissible in evidence despite the fact that his attorney was not present when it was made, there being no showing that other than fair means were used in obtaining it or that he asked for and was denied the presence of his attorney.</p> <p>3. MURDER: Evidence: Appeal. The evidence in a trial for murder held to support a conviction.</p>

— Hon. George Hall, Special Judge. (1) Tbe tenth instruction for tbe State assumes tbe fact of three acts of intercourse,' and is a comment on tbe evidence. State v. Langley, 248 Mo. 554; Linn v. Bridge Co., 78 Mo. App. 131; Stone v. Hunt, 94 Mo. 480. (2) State’s instructions numbered 1, 2, 3, and 4 are contradictory to State’s instruction numbered 10 and constitute reversible error. State v. Palmberg, 199 Mo. 240; State v. Schenk, 238 Mo. 457; State v. Pruitt, 202 Mo. 49.

<p>APPELLATE JURISDICTION: Common Assault. Where defendant was tried upon an information charging him with felonious assault under Sec. 448Í, R. S. 1909, and the jury returned a verdict finding him guilty of common assault and assessed his punishment at a fine of one hundred dollars, the Court of Appeals, and not the Supreme Court, has jurisdiction of his appeal.</p>

<p>APPEAL: No Bill of Exceptions. On an appeal by a surety on a recognizance, where judgment was entered in pursuance to a scire facias, if it appears from the record proper that the proceeding was in every way regular and free from error, and there is no bill of exceptions, the judgment will be affirmed. 263Mo22</p>

Frank Kelly, Judge. (1) The court erred in overruling defendant’s application for a reasonable postponement or continuance of this cause on account of the absent witness, Pete Meatte, and over the exceptions of the defendant at the time. Nichols v. Grocery Co., 66' Mo. App. 323; Barnum v. Adams, 31 Mo. 534; State v. Lewis, 9 Mo.

— Ho». Charles B. Faris, Judge. (1) The record makes a case of total want of proof as to corporate existence of the alleged bailee. The jury should have been instructed to acquit, as prayed by appellant. The information alleged that the goods bought and received by appellant were the property “of St. Louis Southwestern Railway Company, a corporation, as bailee.” There was no evidence either that the goods were stolen; that ‘!

— Hon. Ralph 8. Latsham, Judge. (1) The information properly charges the offense of obtaining property by means of false pretenses and representations. State v. Roberts, 201 Mo. 710; State v. Lovan, 245 Mo. 524; State v. Martin, 226 Mo. 547; State v. Donaldson, 243 Mo. 465; State v. Foley, 247 Mo. 613. (2) The information charges only one offense; therefore, a verdict general in form is correct.

Habeas Corpus. (1) The criminal court exceeded-its jurisdiction because your petitioner was not charged with any felony nor did he plead guilty to any felony and yet he was sentenced to two years in the penitentiary. The word “feloniously” nowhere appears in the information. Illegal voting in Kansas City is expressly made a felony by statute.

Louis City Circuit Court. — Rom. Daniel D. Fisher, Judge. (1) No cause of action is stated in the petition. Neither the ordinance sued upon, the charter of the city, nor the laws of this State authorize an action in debt to be maintained for the refusal to take out the license or pay the charge therefor.

<p>For the reasons stated in City of St. Louis v. United Railways Company, reported at page 387 of this Report, the judgment in these five cases is affirmed.</p>

<p>Appeal from St. Louis City Circuit • Court. — Hon. - Daniel D. Fisher, Judge.</p> <p>For attorneys and briefs, see ante, p. 393.</p>

<p>Appeal from St. Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge.</p>

<p>1. CERTIORARI: To Court of Appeals: Conflict in Decisions. A decision of a Court of Appeals will not, upon certiorari, be quashed on the theory that it is in conflict with the law as established by the last previous decision of the Supreme Court, if there is no such conflict.</p> <p>2. -: -: -: Acceptance of Statement of Court of Appeals as True. In determining upon certiorari, whether or there is conflict between a decision of a. Court of Appeals and the last previous decision of the Supreme Court, statements of facts, evidence or pleading contained in the opinion of the Court of Appeals will be accepted by the Supreme Court, which . will not look beyond such recitals for any other ground for quashing its judgment.</p> <p>3.--: -: -: Negligence: Waiting on Passenger Platform: Leaning Against Truck. A fourteen-year-old boy was waiting on a railroad platform for the arrival of a train. On the platform was a truck upon which flour had been piled; one leg of the truck was broken, and as the boy leaned against the truck, his weight caused it to fall, because it had no sufficient support, and in falling it struck and broke the boy’s leg, and the Kansas City Court of Appeals held that he was using the platform for the very purpose for which it was intended, that he had a right to assume that a truck loaded with freight was not a trap loaded with concealed danger, and that such holding was not in conflict with Kelley v. Lawrence, 195 Mo. 75, wherein it was held that an employee who in passing through a dark viaduct of a buggy warehouse attempted to sit down on a railing or banister, with which he was familiar and which he knew was not intended to be used as a seat, was guilty of contributory negligence. Held- that there is no conflict; and, hence, the decision of the Court of Appeals affirming a judgment for one thousand dollars for the boy, will not be quashed.</p>

— Eon. E. M. Declaring, Judge. (1) Even though this court may believe and hold that while section 9228 confers authority upon cities of the third class to enact an ordinance prescribing fire limits and absolutely prohibiting the erection of inflammable buildings therein, but that said section confers no authority upon such cities to regulate the construction of buildings therein, .still the ordinance in question is not invalid and should not be declared void, for the reason…

— Eon. Andrew A. WMtsitt, Judge. (1) The court erred in refusing to consider the application of defendant for a change of venue. The application was in due form as required by statutes. Previous notice had been given to the prosecuting attorney before the trial was commenced and before either party had been called -on to announce whether ready for trial or not.

Louis City Circuit Court. — Eon. Kent K. Koerner, Judge. (1) The evidence shows that the prosecutrix was not of such unsound mind as to be the subject of a charge of rape upon an insane female. It is not established that defendant knew of and took advantage of such mental infirmity of prosecutrix. Morrow v. State, 79 S. E. 63; Thompson v. State, 33 Tex. Crim. 472; Lee v. State, 43 Tex.

— Eon, W. N. Evans, Judge. Before defendant could be charged by information with a felony and be convicted therefor, he was entitled to the security of a preliminary examination before some justice of the peace in the county where the offense is alleged to have been committed. Laws 1913, p. 225.

<p>1. INFORMATION: Burglary and Larceny In Same Count. Under the provisions of Sec. 4528, R. S. 1909, a charge of both larceny and burglary may be joined in the same count, when the larceny is committed at the time of the burglary and in the building burglariously entered.</p> <p>2. BURGLARY AND LARCENY: Acquitted of One. A defendant may be convicted of larceny and acquitted of burglary by the verdict; and where the jury finds him guilty of larceny, and further finds that the larceny was burglariously committed, he cannot complain because they did not also find him guilty of burglary.</p> <p>3. -: -: Verdict. A verdict which finds defendant “guilty of larceny, and that the larceny was burglariously committed” is not one unknown to the laws of this State; but is definite and certain in its terms, and forever bars a further prosecution for either the larceny or burglary. 263M038</p> <p>4. LARCENY: Recent Possession: Cow Peas: Instruction. Evi- . deuce that defendant and his coindictee agreed to sell cow peas to Ford, and upon reaching an agreement as to the price told Ford the peas were in defendant’s barn and to go to the bam and get them, and Ford subsequently did so, and they were later identified by three witnesses as the cow peas that had been stolen from the storehouse of the prosecuting witness, is sufficient to authorize a proper instruction as to the presumption of guilt arising from the recent possession of stolen property.</p>

— Hon. G. A. Calvird, Judge. The trial court erred, in permitting the State to impeach the general reputation of the defendant for peaceable conduct, such reputation not having been put in issue by the defendant. State v. Becker, 194 Mo. 288; State v. Richardson, 194 Mo. 342.

<p>1. RAPE: Penetration: Proof: “Ravish.” Where the prosecutrix in a trial for rape testified that the defendant, while holding her on the floor, got around in front of her, pulled up her clothing, and “ravished” her, there is sufficient proof of penetration, the word “ravish” so used necessarily including the act of penetration.</p> <p>2. -: Evidence: Use of Force. The evidence in a trial for rape held sufficient to justify the jury in finding that the defendant committed the act forcibly and against the will or consent of the prosecutrix.</p>

— Hon. Peter H. Huck, Judge. (1) Where the information charges a felony and the defendant is convicted as charged, it remains a felony for the purposes of an appeal, even though the punishment assessed is a jail sentence. Sec. 4382, R. S. 1909; Art. 6, sec. 12, Constitution; Section 5 of 1884 Amendment Constitution; State v. Gilmore, 28 Mo. App. 561; State v. Melton, 117 Mo. 618; State v. Zinn, 141 Mo. 329; State v. Herrick, 158 Mo.

Nat M. Shelton, Judge. (1) Defendants’ demurrer should have been sustained. Neither at the close of the State’s case nor at the close of the whole case, was there evidence sufficient to justify submitting the case to the jury, nor to sustain a verdict against either defendant. The verdict is the result of passion and prejudice of the jury, and should be set aside, the judgment reversed and defendants discharged. State v. Francis, 199 Mo. 671.

Louis City Circuit Court. — Hon. Thomas G. Hennings, Judge. We did all that was possible with time, effort and money to deliver the principal into court, and did so. The court was satisfied we had done so and set the forfeiture aside and we paid all costs; in other words, we showed good cause. What cause was shown to the court to reinstate the forfeiture we don’t know.

— Hon. Ralph 8. Latshaw, Judge. (1) There was a variance between the information, and in the proof, in this, that the information charges rape and there was an absolute failure in the proof of same. State v. Dalton, 106 Mo. 468; State v. Wellman, 253 Mo. 312.

— Ron. Ralph 8. Latshaw, Judge. (1) The verdict returned by the jury found the defendant guilty of burglary with explosives as charged in the information and fixed his punishment at twenty years in the State penitentiary. There was but one offense charged, namely, burglary with explosives, and the verdict specifically found the defendant guilty of that crime.

<p>1. RAPE: Prejudice. Convictions for sexual crimes committed on children and women are more often obtained on false testimony and prejudice than in any other class of cases, and for that reason courts carefully scrutinize the evidence,’ and where it is unsatisfactory will reverse the judgment. But they cannot ignore the fact that the jury and trial court possess better opportunity for measuring the varacity of the witnesses than does any appellate court.</p> <p>2. -: Failure to Call Interested Witnesses. The failure of the State to call the father or brother of the ignorant fourtéenyear-old prosecutrix as witnesses, on the theory that one or the other may have debauched her, is not a sufficient ground for reversing the judgment, where she was not living at home when she caused defendant’s arrest, and there is no evidence that she, her father or brother, or the other, witnesses who befriended her, harbored any ill-will towards defendant.</p> <p>3. -: Motive: Sufficiency. The evidence in this case, which fails to reveal any motive on the part of the fourteen-year child, raised in ignorance, filth and poverty, to falsely charge the married defendant with statutory rape, is held sufficient t(D sustain a conviction.</p>

— Hon. E. E. Porterfield, Judge. (1) The court erred in giving instructions 3, 4, 5, 6 and 7 on hehalf of the State. State v. Edwards, 203 Mo. 539; State v. Herrold, 97 Mo. 106; State v. Vaughan, 141 Mo. 514.

— Hon. Ralph 8. Latshaw, Judge. (1) Defendant having bought and received the cigars in question from George Winn, who was lawfully in possession thereof as the agent and servant of the Kansas City Transfer Company, his offense, if any, was that of having received embezzled property knowing the same to have been embezzled and his conviction for receiving stolen property, knowing the same to have been stolen, cannot stand.

<p>1. SCHOOL DISTRICT: in Towns: Coterminous With City Limits. The limits of a town or city school district need not be precisely coterminous with the city limits in order that a tax in excess of sixty-five cents on the one hundred dollars’ valuation may be levied upon the property in the district for school purposes.</p> <p>2. SCHOOL TAX: In Excess of Sixty-five Cents in Town Districts: Constitutionality of Statute. A school district which embraces a city of the fourth class, or an incorporated town or village, and also territory lying outside the city or village limits, known, by Sec. 10825,- R. S. 1909, as a “town school district,” may levy a school tax on all the property embraced therein in excess of sixty-five cents on the one hundred dollars’ assessed valuation, when a majority of the voters who are taxpayers vote for said increase. The fact that said district embraces territory lying outside- of the city limits does not make such excess invalid, nor bring the statute authorizing it (Sec. 10864, R. S. 1909) in conflict with the words of section 11 of article 10 of the Constitution, declaring that “the aforesaid annual rate for school purposes may be increased, in districts formed of cities and towns, to an amount not to exceed one dollar on the hundred dollars’ valuation, and in other districts to an amount not to exceed sixty-five cents,” when authorized by a majority of the voters who are taxpayers.</p> <p>3. SCHOOL DISTRICT: Formed of Cities and Towns: Meaning. The words “formed of cities and towns” found in section 11 of article 10 of the Constitution of 1875, do not mean “formed exclusively of cities and towns,” or a school district whose boundaries are precisely the same as those of the city or town. This is manifest from the language and decisions in force when the Constitution was adopted, which declared that a school district which embraced a city or town might embrace and include outside territory.</p>

<p>SCHOOL DISTRICT: Lapse: Failure to Provide Eight Months’ School: Quo Warranto. To provide for an eight months’ school under Sec. 10776, R, S. 1909, is not merely to levy and collect the necessary money but also to hire a teacher, provide a school house, etc., for an eight months’ term, and where only the first of these steps is taken, the school district, by force of the same section, shall be deemed to have lapsed as a corporate body, its territory shall be deemed and taken as unorganized, and its directors will be ousted in a proceeding in the nature of quo warranto brought at the relation of resident tax-paying citizens of the district.</p>

— Hon. W. K. Amioh, Judge. (1) Plaintiffs’ petition does not state a cause of action for the following reasons: (a) It does not. state that the defendants are insolvent and not able-to respond in damages, (b) It does not state facts-sufficient to show that plaintiffs will suffer an irreparable damage, by reason of defendants’ acts, (c) While-the petition states the conclusion that plaintiffs have-no adequate remedy at law, it states no facts that can. support such an…

<p>APPELLATE JURISDICTION: Constitutional Question: Must Really Exist: Service of Process. Raising a constitutional question is npt a mere matter of assignment. If the only matter at issue is to be determined by the application of an admittedly valid general statute to the facts of. the case, no constitutional question is involved. Where an appeal is taken from the action of the circuit court overruling a motion to quash an execution for $235, and the only question involved was the sufficiency of the service of summons on the defendant foreign corporation in the suit resulting in the judgment, an assignment in the motion to quash that “defendants had not been served with process in the manner provided by law and that therefore said judgment violated defendant’s rights” under the due-process provisions of the Constitution, does not involve a construction of the Constitution, and hence the Supreme Court does not have jurisdiction.</p>