text:
    THE STATE v. LEWIS HALE, Appellant.
    Division Two,
    December 19, 1911.
    1. EVIDENCE: Homicide: Where Deceased Was Aggressor. Where deceased was the aggressor, it is competent to admit evidence which tends to show the attitude of the parties toward each other, the animus of the deceased, and what reasonable grounds, if any, defendant had for believing his life was in danger at the time he fired the fatal shot.
    2. -: -: Former Difficulty. The details of a former difficulty between defendant and deceased are not admissible in evidence. It is competent to show there was a former difficulty, and, if there were any threats at the time, to show them; but it is not competent to go into the character of a difficulty so far removed from the fatal encounter as to be a separate one.
    3. INSTRUCTION: Right to Return to Place of Abode. An instruction telling the jury that defendant, after he had been chased by deceased, had a right to return to his place of abode, where the difficulty occurred, is. properly refused, where there-is nothing in the case that will authorize the submission of such a question as a distinct issue.
    4. -: Uncommunicated Threats. Where uncommunicated threats were admitted in evidence without objection, an instruction telling the jury that they should be considered in determining what were deceased’s intention in going to the defendant’s place of abode, where the homicide occurred, should be refused, as calling particular attention to such threats. Besides, the instruction directed the jury’s attention to defendant’s motive in going to the house, and did not properly direct the jury’s attention to the real point upon which the testimony was admissible, namely, that deceased was the aggressor. An instruction telling the jury that, in passing upon the question whether defendant had reasonable grounds to believe it was necessary to shoot to protect his life, “they should consider all the facts and circumstances in the case,” was sufficient.
    5. UNCOMMUNICATED THREATS: As Showing Aggressor. Uncommunicated threats are admissible upon the question of whether the deceased was the aggressor in the difficulty that resulted in his death, and for no other purpose.
    Appeal from Greene Circuit Court. — Hon. Alfred Page, Judge.

      Affirmed.

      A. W. Lyon and M. G. Smith for appellant.
    (1) The court erred in permitting the witness to testify about Mrs. Zimmerman being at Sager’s house at dates long prior to the date of the homicide, and of Zimmerman having been there on occasions long prior to the homicide, and as to Zimmerman sitting on lumber pile, etc. This evidence was too remote, was immaterial to the real issues, and was highly prejudicial to the defendant. (2) The court erred in excluding evidence offered by defendant showing the general character of the assault made upon defendant by deceased prior to the homicide, as the evidence would show the physical superiority of deceased over defendant, and was competent to show the enmity of deceased toward defendant. The court erred in refusing to permit defendant’s council to even make his offer. The court erred in excluding testimony offered by defendant showing the date of Mrs. Zimmerman’s marriage, after the homicide. The evidence would have shown she married in about two months thereafter. This was competent as controverting the impression the State constantly attempted to make on the jury that there was a love affair between Hale and Mrs. Zimmerman. (3) The court erred in refusing to give instruction 5 offered by defendant, as to uncommunicated threats made by John Zimmerman against defendant. Instruction 10 given by the court was an attempt to cover the refused instruction, but the instruction given was seriously defective in that'it omitted calling the attention of the jury to threats whether communicated or not to defendant. Inasmuch as the court had instructed the jury in instruction 6 in regard to threats communicated to defendant, the jury undoubtedly would be led to believe that the threats mentioned in instruction 10 meant only such threats as were communicated to defendant and to exclude any and all threats not communicated to defendant. The court should have instructed the jury of threats not communicated. State v. Hicks, 92 Mo. 431; State v. Nelson, 166 Mo. 191. (4) The court erred in refusing the instruction in reference to defendant’s lawful right to return to his home or place of abode after having-been chased by Zimmerman. This instruction is the law governing the facts in evidence. (5) Defendant after being chased by deceased returned to his home where he had a lawful right to go. In the absence of this instruction the jury were left to infer that defendant in returning- to his home before the shooting and after he was chased by deceased became the aggressor. State v. Mathews, 148 Mo. 194; State v. Evans, 124 Mo. 410.

      Elliott W. Major, 'Attorney-General, and Camp-hell Cummings, Assistant Attorney-General, for the State. „
    (1) The place, character and details of the prior fight between deceased and defendant were immaterial and irrelevant. (2) After witness had answered that deceased’s widow had married since the homicide, it was not error to exclude the .date of the marriage, especially as no offer of proof was made. State v. Foister, 202 Mo. 46; State v. Zorn, 202 Mo. 12; State v. Arnold, 206 Mo. 589; State v. Page, 212 Mo. 224. (3) Instructions 6 and 10, as to threats, covered both communicated and uncommunicated, and were in approved form. They covered both the question of the reasonableness of defendant’s apprehensions and as showing who was the aggressor, or as the instruction puts it, the nature of the transaction. State v. Nelson, 166 Mo. 191; State v. Darling, 199 Mo. 185. Instruction' 10 uses the words “any threats.” The two instructions given should be read in connection with each other. State v. Sharp, 183 Mo. 715. (4) Where the instructions given for the State cover every phase of tlie case, it is not error to refuse all instructions asked by tlie defendant. State v. Darling, 202 Mo. 150; State v. Carpenter, 216 Mo. 448. Moreover, defendant’s refused instructions were argumentative and theoretical, not a clear and plain' declaration of law on self-defense, and the law of self-defense had been covered by the court’s instructions. State v. Edwards, 203 Mo. 528.
   FERRISS, J.

On August 4, 1909, the'prosecuting attorney of Greene county filed an information in the circuit court of said county charging the defendant with the crime of murder in the first degree. After a mistrial under said information, the State elected to prosecute for murder in the second degree. The second trial resulted in defendant’s conviction of murder in the second degree, the jury assessing his punishment at sixteen years in the penitentiary, which punishment was by the court reduced to ten years in the penitentiary, and sentence • pronounced accordingly.

The homicide occurred at the home of one Robert Sager, in the city of Springfield, Missouri, on the evening of July 17, 1909. Sager and the deceased, John Zimmerman, were brothers-in-law, their wives being sisters. In addition to the defendant, who boarded Avith Sager, there Avere in the house at the time of the homicide Mrs. Sager, Mrs. Zimmerman and Mrs. McDowell, sisters, and Mrs. Kesterson, their mother. A few minutes before the homicide the deceased passed by the house of A. L. Downing, who lived next door to Sager, and in response to Downing’s greeting deceased said he was “wild and woolly that night,” and passed into Sager’s house. Shortly thereafter Avitness Downing saw defendant and the deceased circling around the house, the deceased apparently wanting to talk with the defendant. He then saw the deceased and two of the women enter the house at the back door, defendant following them. After defendant had entered the house, Downing heard some rough language, and heard some one say “he calculated to kill the son-of-a-bitch before night.” Soon afterwards the witness heard a pistol shot, and saw the deceased standing on the porch in front of Sager’s house, facing Sager and his wife, who were in the doorway. The witness did not see anything in the hands of the deceased. Immediately after the shooting, Mrs. Kesterson caine out of the house and requested Downing to come over, saying that Zimmerman had shot himself; that “the fool had shot himself.” When Downing went over he found the deceased lying on the porch, and observed a wound in Ms head about two inches above the eye. The defendant told the sheriff who arrested him that he shot the deceased, and he was also heard to say while on his way to the jail that he shot to kill. Deceased died about thirty minutes after the shooting.

The' State introduced evidence showing that the defendant had purchased a revolver from a local hardware merchant at noon on the day of the shooting. At the time of Ms arrest the defendant handed the sheriff his revolver, in which were four loaded cartridges and one empty cartridge.

It appears from the evidence that defendant, beginning in March previous to the homicide, boarded with the deceased, that they quarreled in May, and that defendant then went to board with the Sagers.

The evidence on the part of the defense showed, in substance, that deceased entered the house of his brother-in-law on the evening of the shooting in a partially drunken condition, and immediately began quarreling with his wife, who was lying in bed, sick, and demanded that she go home with him; that he then threatened to kill the defendant before night; that, with a knife in his hand, he ran after the defendant and .chased him down an alley; that he returned to the house, and again quarreled with his wife and Mrs. Sager, and threatened them with his fists; that he again threatened to kill the defendant and anybody else who might interfere with him; that he was ordered by Mrs. Sager to leave the house, whereupon he cursed her and defied her to put him out; that he stepped out on the porch, and while standing there, cursing Mrs. Sager and threatening to strike her with his fists, the defendant came up and shot him. The defendant’s witnesses who saw the shooting testified that the defendant shot over the shoulders of Mrs. Sager, who was in front of him at the time, talking to the deceased. The same witnesses also testified that the deceased, at the time he was shot, did not have a knife in his hand, or his hand in his pocket, but had his hands up, making gestures.

Several witnesses for the defendant testified as to threats made by the deceased against the defendant, some of which threats, as defendant proved, had been communicated to him; and there was evidence that there had been a fight between defendant and deceased six or eight weeks prior to the homicide.

Defendant testified in his own behalf that at the time he shot the deceased the latter was threatening to kill him; that deceased had his hand in his hip pocket, and said he came there to kill him, and intended to kill him before dark; that he then fired the fatal shot, his purpose in so doing being to save his life. Defendant also testified that deceased beat him with brickbats about eight weeks before the shooting, and that he had been endeavoring to avoid the deceased while going to and from work.

It was shown that deceased’s wife frequently visited her mother and sistér, with whom defendant boarded; that defendant and Mrs. Zimmerman were very good friends and were seen together a good deal, and that deceased, while his wife was visiting her mother and sister, would sit on a lumber pile some distance from Sager’s house, and wait there until his wife was ready to go home.

There was considerable testimony to the effect that defendant’s .reputation for peaceableness was good, and that of the deceased bad.

Defendant contends that the trial court committed error in two respects, namely, in its rulings on the testimony offered both by the State and the defendant, and in refusing certain instructions offered by the defendant.

‘With regard to the rulings on the evidence, there are several assignments of error based upon the admission of testimony on the part of the State. We have examined them, and in our opinion none of this evidence was incompetent or prejudicial to the defendant.

A more serious question arises with regard to evidence offered by the defendant on one point. It was competent in this case to admit evidence which tended to show the attitude of the parties toward each other, the animus of the deceased, who was the aggressor, and what reasonable grounds, if any, the defendant had for believing that his life was in danger at the time he fired the fatal shot. There was evidence of threats made by the deceased against the defendant, some of which were communicated to him and others not. The following occurred when a witness for the defense, Mrs. Kesterson, was on the stand:

“Q. I will ask you, Mrs. Kesterson, if you remember of líale and Zimmerman having a fight some time prior to this shooting, say a month or six weeks? A. About six weeks before the shooting came off they had a fight.
“Q. Tell the jury in a general way where that took place and what was done?
“Mr. West: I object to where it took place and. what was done, for the reason it is immaterial. Objection sustained; to which ruling defendant then and there duly excepted at the time,
“Q. State in a general way what was the character of that difficulty.
“Mr. West: I object to that question, for the reason it is indefinite and calls for a conclusion; object to it as incompetent and immaterial. It’s a difficulty that took place about a month before, as the evidence shows, and has no part in determining’ the issues in this case. Objection sustained; to which ruling defendant then and there duly excepted at the time.
“Mr.. Lyon: The defendant offers lo show by this witness that — •
“Mr. West: We object to the offer being made in the presence of the jury. Objection sustained; to which ruling the defendant then and there duly excepted at the time.”

The witness stated that there had been a fight between defendant and deceased about six weeks before the shooting. The ruling of the court that the witness should not be permitted to give the details of the fight is in line with the decisions of this court in the case of State v. Birks, 199 Mo. l. c. 275, where Judge Fox, speaking for the court, said: “It is insisted by appellant that the court committed error in excluding evidence of former difficulties between the deceased and the defendant. It is only necessary to say upon this proposition, that, so far as regards any details of former difficulties, they were inadmissible. It was competent to show the fact that there had been previous difficulties, and if the defendant made any threats of violence against the deceased, it is competent to prove such threats, but to go into details of former difficulties would simply tend to confuse and mislead the jury, and in many instances direct their attention to the consideration of the question as to who was in the right or wrong in such previous difficulties, concerning which there is no one upon trial.”

It will be perceived that the witness was not asked whether any threats were made on the occasion of such fight, and the only matter in dispute is whether or not she should have been permitted to detail the circumstances connected therewith. We think the court was justified in its ruling by the decision of this court in the case above referred to.

The defendant testified that fights had occurred between him and the deceased, and he was permitted to testify that about the middle of May, prior to the date of the homicide, “he beat me up with brickbats, and I was under the doctor’s care for four weeks.” He was not asked, nor did he undertake to testify, as to any threats on that occasion. In response to a question as to when, if ever, Zimmerman made any threats against him, the defendant testified: “He threatened on Sunday night before this trouble occurred, to kill me, and he told his wife and her mother.” It seems clear from the record that the defendant was not undertaking to show any threats connected with or growing out of the former fight, the details of which were ruled out. He was allowed to testify and his witnesses were allowed to testify that there had been a fight between him and the deceased, and, under the authorities, this was as far as he could properly go.

Defendant complains of the refusal of the court to give several instructions offered in his behalf. He offered an instruction on, previous good character, which was not given, but the subject was fully and fairly covered by an instruction given by the court. The.next instruction offered by the defendant was as follows:

“The court instructs the jury that Hale had a lawful right to return to his home or place of abode, after having been chased by Zimmerman, because it was his honre or abiding place, even though he may have expected to be attacked by deceased.”

We think this instruction was properly refused/' as no question was made in the. case which would justify submitting this matter as a distinct issue to the jury.

Defendant next offered two instructions bearing on the right of self-defense. This subject was fully and properly covered by an instruction given by the court, and these instructions offered by the defendant were properly refused.

He offered one other instruction, as follows:

“The jury is further instructed that any threats made by John Zimmerman against the defendant, if' any were made, which were not communicated to the .defendant, should be considered by the jury in determining what were the intentions of John Zimmerman at the time Zimmerman went to the home or place where defendant boarded.”

The court did not err in refusing to give this instruction,- as it was calling attention to particular testimony in the case. The testimony of uncommunicated threats was introduced without objection on the part of the State. Such testimony went to the jury for their consideration, like all other testimony, and there would be no more propriety in calling special attention to this evidence than to any other specific testimony in the case. It is true that in the case of State v. Hicks, 92 Mo. 431, a similar instruction was given in behalf of the defendant. The court in that case, commenting on the instruction as a whole, said that they put the case of the defendant fairly before the jury. As the defendant was appealing, the propriety of an instruction favorable to him was not called in question. It does not follow from what the court said in that case that it would have been held error if the court had refused said instruction. In that case, of course, the defendant was not complaining of instructions favorable to him, and the comment *of the court was necessarily limited to instructions of which the defendant did complain.

There is divided authority outside this jurisdiction upon the question of the admissibility of evidence of uncommunicated threats. In this jurisdiction we hold it admissible upon the question of whether the deceased was the aggressor, and for no other purpose. [State v. Evans, 158 Mo. 589.] This testimony, at best, bears but remotely on the question whether defendant had reasonable grounds to fear for his life, and there is no reason for an instruction on said testimony. The jury were instructed that in passing on the question whether defendant had reasonable grounds to believe that it was necessary to shoot to protect his life, they should consider “all the facts and circumstances in the case.” Furthermore, the instruction asked and refused did not properly direct the attention of the jury to the real point upon which the testimony was admitted, but was so worded as to direct their attention to the motive which induced the deceased to go to Sager’s house. This was too remote from the real question in issue; that is, was the deceased the aggressor when the shooting occurred.

The instructions given by the court fully covered all phases of the case, and were entirely fair to the defendant.

Finding no error in the record, the judgment is affiimed.

Kennish, P. J., and Brown, J., concur.


source: Caselaw Access Project

author: KENNISH, P. J. BROWN, J.

license: Public Domain

text:
    CITY OF KING CITY v. RICHARD P. DUNCAN, Appellant.
    Division Two,
    December 19, 1911.
    1. CARRYING CONCEALED WEAPONS: Prosecuted by City: Appeal to Circuit Court: Unanimous Verdict: Reasonable Doubt. A defendant who has been prosecuted by a city for carrying concealed weapons and convicted, and has appealed to the circuit court, must be convicted, if convicted at all, in a trial anew in the circuit court, by the unanimous verdict of the jury, and the proof of guilt must be beyond a reasonable doubt — notwithstanding a prosecution for a violation of a city ordinance is a civil, and not a criminal,, case. [BROWN, J., dissenting.]
    2. TRIAL BY JURY: Violation of City Ordinances: Power of Legislature to Prescribe Procedure. The constitutional right of a trial hy jury for the violation of a city ordinance never did exist in this State, and hence the declaration of the Constitution that “the right of trial by jury, as heretofore enjoyed, shall remain inviolate” does not apply. It is therefore within the power of tfie Legislature to establish the tribunal for the violation of municipal ordinances, to allow or deny an appeal from the judgments of such tribunals, and to prescribe the procedure in the appellate court; and the constitutional amendment adopted in 1900, providing for a three-fourths verdict in civil cases in courts of record, did not change or affect such procedure, or include civil cases originating in police courts. [BROWN, J., dissenting.]
    3. -: -: -: Statute Regulating Procedure on Appeal. Section 9343, Revised Statutes 1909, enacted in 1905, specifically provided that in case of a conviction for a violation of an ordinance of a city of the fourth class the accused shall be entitled to an appeal to the court having criminal jurisdiction, in which court the case shall be proceeded with “in the same manner as is provided in cases of appeals from judgments of justices of the peace in cases of misdemeanor;” and in 1907 (Sec. 9539, R. S. 1909) an act applicable to municipalities generally was enacted and provided ■ that “appeals from police courts and for violation of an ordinance of a city . . . ■shall he in the nature of a criminal appeal from a justice of the peace.” Held, that the Legislature had authority to enact these statutes; and they mean that, in case of an appeal from the judgment of a police court to the court having criminal jurisdiction, the defendant, in a trial de novo in sucb. appellate court, is entitled to the presumption of innocence, and can be convicted only on proof of guilt beyond a reasonable doubt and upon the unanimous verdict of the jury.

      Held, by BROWN, X, dissenting, that suits for the collection of fines for the violation of city ordinances have always been classed as civil actions, and the constitutional amendment of 1900 declaring that “in the trial by jury of all civil cases in courts of record, three-fourths of the members of the jury concurring may render a verdict,” and this amendment being self-enforcing, the Act of 1905 (Sec. 9343, R. S. 1909), providing that in cases of appeal from judgments of a police court for the violation of a city ordinance the ¡procedure shall be the same as in cases of appeal from judgments of a justice of the peace in misdemeanor cases, is in violation of said amendment, and should not be permitted to control the procedure.
    . Appeal from Gentry Circuit Court. — Eon. William C. Ellison, Judge.
    Reversed and remanded.

      Ed. E. AlesMre, John A. Showen and W. E. Dalbey for appellant.
    The principal error relied upon is the fact that the Three-Fourth Jury Law does not. apply to a case of information against a party for violation of the city ordinances. Section 16 of article 2, Constitution of Missouri, expressly provides “that imprisonment for debt shall not he allowed except for the non-payment of fines and penalties imposed for violation of law.” It is true that our courts have for a long time been trying to eliminate, or rather to determine what kind of a case one of the character now before the court is, and what rules are applicable.to a'trial of such a case. . They have in several cases decided that cases of this character are civil in form, hut quasi criminal in character;' we assume now that this is the law in Missouri. It has also been said by the courts of this State- that' a prosecution for the violation of a city, ordinance, and acquittal or conviction, is not a bar for prosecution by the State. As the question involved in this ease has never been passed upon by any court in this State, we are unable to cite any authority, but must refer to the practice of this class of eases. The last sentence of section 5929, provides that the defendant shall be entitled to trial by jury as in prosecutions before justices of the peace. This now is the first step taken indicating how defendant shall be prosecuted, and of course, there is no question that a prosecution before a justice of the peace, when a conviction is had, and appeal taken, must, if found guilty, have the support of the entire jury of twelve. If we are to follow this section as to practice, then it necessarily must follow that on a conviction before the police judge and defendant appeals, that his case in' the circuit court must, if a verdict is found against him, be by the entire jury. Now, we reach the question as to how the appeal shall be taken, and when that is done, we think the question is solved as to how the defendant shall be tried in the circuit court. This section reads as follows (Sec. 5937): “Upon such appeal the appellate court shall proceed with said cause in the same manner as is provided in cases of appeals from judgments of justices of the peace in cases of misdemeanor; and judgment of affirmance, dismissal and upon trials may be had, rendered and enforced as provided in the statute relating to misdemeanors.” These sections seem to be conclusive upon the question involved and that is that cáses appealed from a police court in cities of the fourth class, must be tried according to the statutes required for appealing in cases of misdemeanor. Of course, there can be no question that a jury of twelve is required to convict in a misdemeanor. While our courts have practically wiped out the criminal part of these cases, they have never changed the procedure and in this ease, the court erred in receiving a verdict signed by less than twelve jurors. City of Tarlrio v. Loyd, 109 Mo. App. 171.

      J. W. Stillinger for respondent.
    (1) The amendment to section 28 of article 2 of tbe Constitution, was by adding after the word law, in line three of said section, the following: “And that a two-thirds majority of such number prescribed by law, concurring, may render a verdict in all civil cases, and that in the trial by jury of all civil cases in- courts of records, three-fourths of the members of the' jury concurring, may render a verdict. ’ ’ This amendment, brief as it is, contains the expression ‘ ‘ all civil eases ’ ’ twice. Section 3782, p. 190, Laws 1901, enacted under the above constitutional provision, provides that three-fourths or more of the jurors concurring, may return a verdict, which shall have the same force and effect as though rendered by the entire panel. Appellant contends that he is wronged by the trial court receiving a verdict signed by ten jurymen. It is difficult to comprehend wherein appellant’s contention is based on any constitutional or statutory right, since from the beginning of our decisions in Missouri, as well as in many other of the States, it has been repeatedly held that the defendant in prosecutions for the enforcement of ordinances, has no constitutional right to trial by jury. DeLaney v. Police Court, 167 Mo. 677; 1 Dillon on Mun. Corp. (4 Ed.), secs. 432-433; 2 Beach ,on Public Corp., sec. 1284; 6 Am. & Eng. Ency. Law (2 Ed.), p. 978, note 3; Callan, v. Wilson, 127 U. S, 540. (2) If this is a civil case, then there can be no .doubt about the correctness of the verdict, for the Constitution now provides for such a verdict. Even before the Constitution made provision that in all civil cases three-fourths of the members of the-jury concurring may render a- verdict, which by statute has the same force and effect as though rendered by the entire panel, the Supreme Court and Courts of Appeals had, in more than a dozen opinions, held that all prosecutions for the violation of city ordinances are civil and not criminal cases, because they are not for the enforcement of general laws coextensive with the State. St. Louis v. Weitzel, 130 Mo. 612; Mexico v. Harris, 115 Mo. App." 711; Kansas City v. Clark, 68 Mo. 588; Kirksville v. Munyon, 114 Mo. App. 567; State v. Muir, 164 Mo. 615; City v. Knox, 74 Mo. 79; Canton v. McDaniel, 188 Mo. 288; Delaney v. Police Court, 167 Mo. 677; Poplar Bluff- v. Hill, 92 Mo. App. Í9; Springfield v. Starke, 93 Mo. App. 70'; City v. Anderson, 100 Mo. App. 344. Appellant in the absence of express right to have a verdict by the whole jury, seeks by reasoning from certain sections of the law governing practice to establish it, but Delaney v. Police Court, 167 Mo. 677, declares such attempt is “disingenuous.”. It ignores section 3782, p. 190, Laws 1901, and section 28, article 2, Constitution of Missouri as amended.
   KENNISH, P. J.

This is an appeal from the circuit court of Gentry county. Appellant was convicted in the police court of King City, a city of the fourth class in said county, for the violation of an ordinance prohibiting the carrying of concealed weapons, and appealed from the judgment to the circuit court. Upon a trial de novo before a jury of twelve, a ver- ’ diet of guilty was returned, concurred in by ten members of the jury only. The court received the verdict, pronounced judgment, and the defendant appealed to the Kansas City Court' of Appeals. Upon the ground that a question involving the construction of the Constitution of this State was presented, the case was transferred to this court. The appellate jurisdiction, of this court is not challenged, and but one question is relied upon by appellant for a reversal of the judgment. That question is, Was the appellant, upon appeal to the circuit court, entitled to a trial under the rules of criminal procedure applicable to tbe trial of misdemeanors, including" proof of guilt beyond a reasonable doubt and a conviction only upon the unanimous verdict of tbe jury, or was tbe respondent entitled to a trial under tbe rules of civil procedure, including proof as required in civil cases and a conviction upon three-fourths of tbe members of tbe jury concurring in tbe verdict?

In cases too numerous to make citations necessary, tbe appellate courts of this State have consistently held that a prosecution for a violation of a city ordinance is a civil and not a criminal case. And it was formerly provided by statute that such offenses should be tried as civil cases. [G. S. 1865, sec. 16, p. 242; Wag.’s Stat. 1872, sec. 16, p. 1318.]

By'the amendent to the Constitution of this State adopted in 1900 (art. 2, sec. 28) it was provided that in civil cases a two-thirds majority of the members of the jury may render a verdict in courts not of record, and in courts of record three-fourths of the members of the jury concurring may render a verdict. The trial court in this case doubtless assumed that, as under the authorities in this State the case on trial was a civil case and as the fundamental law provides that in all civil cases “three-fourths of the jury concurring may render a verdict,” a verdict of guilty concurred in by ten members of the jury was sufficient in law, and accordingly received the verdict and rendered judgment thereon.

On tbe other band, it has been persistently, maintained that a prosecution for tbe violation of a city ordinance, and especially when tbe offense charged is also a criminal offense under tbe public laws of this1 State, is essentially criminal in character, and as a judgment of conviction is followed by fine or imprisonment or both, and may be introduced in evidence as a conviction of “a criminal offense,” for the purpose of impeachment, it is contended, and not without reason, that a person on trial under such a charge should he entitled to the presumption of innocence and to such constitutional and statutory guaranties as attend one accused of crime under the general law.. The theory that such a prosecution is a civil case and must be tried as such, leads to the following anomalous result: After appellant had been convicted in the circuit court it was competent for the State to place him on trial upon an indictment or information for the same offense, and if he testified in his own behalf the State would then have had the right to introduce it in evidence against him, to impeach him as a witness, the former conviction under the city ordinance for the same offense, upon the ground that it was a criminal offense, although tried as a civil case and determined by a three-fourths verdict. The law as to the presumption of innocence and proof of guilt beyond a reasonable doubt would then be of little avail to the defendant when he would stand before the court and jury “condemned already” for the same offense and by the judgment of the same court.

This seeming conflict in the law has arisen, we think, because of a misunderstanding of the constitutional and statutory provisions applicable in such cases. The civil cases which come within the meaning of section 28, article 2, of the Constitution, in which “the right of trial by jury, as heretofore enjoyed, shall remain inviolate,” and in which “three-fourths of the members of the jury concurring may render a verdict,” clearly were not intended to include prosecutions originating in police courts, for violations of municipal ordinances, for, as to such cases, the constitutional right of trial by jury never existed. [Delaney v. Police Court, 167 Mo. 667; City of Marshall v. Standard, 24 Mo. App. 192; 24 Cyc., pp. 107, 144, 145; 6 Am. & Eng. Ency. of Law (2 Ed.), 978.] In the case of Delaney v. Police Court, supra, l. c. 678, this court said: “The right of trial by jury for violation of mere municipal police regulations is not and never was contemplated by tbe Constitution of this State.” We may therefore assume that the constitutional amendment of 1900 did not have reference to such civil cases as arose out of violations of municipal ordinances and in which the right of trial by jury was, not guaranteed.

It was within the power of the Legislature, there being no constitutional limitation to the contrary, to establish the tribunal for the trial of violations of municipal ordinances; to allow or to deny an appeal from the judgment of such tribunal; and, having the power to allow an appeal, it also had the power to prescribe the procedure in the appellate court. [Cooley’s Constitutional Limitations (7 Ed.), 459; 8 Cyc. 822; 11 Cyc. 739; 2 Dillon on Municipal Corporations (5 Ed.), sec. 757 and notes; Petition of Perrier, 103 Ill. 367; Golden City v. Hall, 68 Mo. App. 627; City of Cassville v. Jimerson, 75 Mo. App. 426; City of Tarkio v. Loyd, 109 Mo. App. 171; Ex parte Harker, 49 Cal. 465.]

The law governing trials for violations of city ordinances of cities of the fourth class was amended in 1895' so that since then, in prosecutions in the police court, the accused is entitled to trial by jury as in prosecutions before justices of the peace. And in case of conviction he is entitled to an appeal to the court having criminal jurisdiction, in which court the case shall be proceeded with “in the same manner as is-provided in cases of .appeals from judgments of justices of the peace in cases of misdemeanor.” [R. S. 1899, secs. 5928 and 5937; R. S. 1909, secs. 9334 and 9343.] And in 1907 an act applicable to municipalities generally was passed by the Legislature (now sec. 95, R. S. 1909) providing that: “Appeals from police courts and for violation of an ordinance of a city, town or village shall be in the nature of a criminal appeal from a justice of the peace. . .

Section 9343, supra, as originally enacted in 1895, was in force when the constitutional amendment of 1900 was adopted. It was not repugnant to such amendment for the reason that the amendment did not change or affect the procedure in criminal cases, either in courts of record or in courts not of record, and, as before shown, it did not include or affect civil cases, originating in police courts, for violations of municipal regulations, the cases to which alone this statutory provision referred. Therefore the constitutional amendment did not abrogate said Act of 1895', carried into the revision of 1899, and now a part of the present Revised Statutes of this State. This law expressly provides, as we think it was within the power of the Legislature to provide, that in case of an appeal from the judgment of the police court to the court having criminal jurisdiction, the defendant shall be entitled to a trial under the same procedure prescribed by law in case of appeals from judgments of justices of the peace in misdemeanors. That means that the accused is clothed with the presumption of innocence; that he can be convicted only upon proof of guilt beyond a reasonable doubt and upon the unanimous verdict of a jury. Such prosecutions remain, as this court has so many times decided, civil cases, in that a trial does not place, the accused in jeopardy so as to bar a: subsequent prosecution under the laws of the State for the same offense. But they are so closely related to criminal cases, and the consequences of a conviction are so nearly identical with those of a conviction of crime, that the Legislature provided, and we think wisely, that they should be tried under the same procedure.

Section 7280, Revised Statutes 1909, provides that: “In all trials of civil actions in any court of record in this State a jury shall consist of twelve men possessing the qualifications as are or may hereafter be provided by law: Provided, that three-fourths or more of the jurors concurring may return a verdict, which shall have the same force and effect as though rendered by the entire panel. If a verdict be rendered by the entire panel the foreman alone may sign it, but if rendered by a less number than the entire panel such verdict shall be signed by all the jurors who agree to it.”

This statute was • enacted in 1901, pursuant to the constitutional amendment on the same subject, and to make the practice conform to the change made in the procedure in jury trials by such amendment. It was not intended to repeal the Act of 1895 governing the trial of police court cases, as is evidenced by the fact that the latter act was carried into the revision of 1909', as also by the Act of 1907, making substantially the same provision as to the trial of cases on appeal from the judgment of a police court of any city, town or village.

As the case was not tried in accordance with the views herein expressed, the judgment is reversed and the cause remanded.

Ferriss, J., concurs; Brown, J., dissents in a separate opinion.

DISSENTING OPINION.

BROWN, J.

I find myself unable to concur' in the majority opinion prepared in this case by my 'learned associate, Judge Kennish.

Suits for the collection of fines and penalties for violating city ordinances have been classified as civil actions since the earliest judicial history of our State. [City of St. Louis v. Smith, 10 Mo. 439; Ex parte Hollwedell, 74 Mo. 398.]

In 1900 the electorate • of this State adopted an amendment to our Constitution which reads as follows:

“The right of trial by jury, as heretofore enjoyed, shall remain inviolate; but a jury for the trial of criminal or civil cases, in courts not of record, may consist of less than twelve men, as may be prescribed by law; and. that a two-thirds majority of snch number prescribed by law concurring may render a verdict in all civil cases. And that in the trial by jury of all civil cases in courts of record, three-fourths of the members of the jury concurring may render a verdict. ’ ’ [Sec. 28, art. 2, Constitution of Missouri.]

This constitutional amendment was self-enforcing. [Sharp v. Biscuit Company, 179 Mo. 553.]

The cumbersome nature of our judicial procedure has always been a source of great annoyance and expense to the people in enforcing snch civil rights and police ordinances as are necessary for the protection of their lives and property.

Prior to the amendment to our Constitution hereinbefore set out, a litigant with a meritorious case was often confronted with a mistrial because of one or two contrary men on the jury. Such a mistrial always resulted in delay; and not infrequently, before a second trial could be had, the witnesses were absent or dead, and the litigant thereby -altogether failed to obtain the relief to Which he was entitled. It was undoubtedly to prevent such delays that the people adopted the aforesaid amendment to the Constitution.

It is quite true, as said by my learned associate, that section 9343, Revised Statutes 1909, enacted in 1895, prescribes that actions appealed from the mayor or police judge to the circuit court shall upon such appeal be tried in the same manner as appeals from justices of thu peace in cases of misdemeanor, which of course means a trial by twelve jurors. However, I fail to find anything in said constitutional amendment indicating an attempt to restrict its provisions to any particular class of civil actions; consequently, in my judgment, it modified or repealed section 9343, Revised Statutes 1909, and all other statutes which' conflicted with its provisions.

In the case of Kansas City, Fort Scott and Memphis Ry. Co. v. Thornton, 152 Mo. l. c. 575, this court said: “It is the duty of the courts to enforce the organic law, and to brush aside any statute which conflicts with it, whether it was passed before or after the Constitution was adopted. ’ ’

The fact that a defendant may be branded as a criminal by a conviction of violating a city ordinance does not appeal to me as a good reason for the conclusion reached by my associates.

The penalties inflicted for violating city ordinances usually do not exceed a fine of $100, which is insignificant, compared with the serious consequences of many civil actions wherein a verdict returned by three-fourths of the jury may deprive a citizen of his home or all his property.

It is my opinion that all laws and constitutional provisions intended to expedite the administration of justice should be liberally construed, and that the judgment in this ease should be affirmed.


author: FERRISS, J.

text:
    FRANK JONES, Executor, et al. v. JOSEPH BELSHE et al.
    Division Two,
    December 19, 1911.
    1. INCAPACITY: Considered in Connection with Undue Influence. The evidence may not show the grantor’s mind was so impaired as will of itself invalidate a fair contract, made under proper circumstances for proper purposes; but it may show such serious impairment by age and disease as to cause him to yield readily to the persuasion of others, and that fact becomes important in determining whether fraud was practiced upon him by means of undue influence.
    2. UNDUE INFLUENCE: Confidential Relation: Unfair. Consideration for Contract. No general rule can be stated defining •what is a confidential relation. Some relations are per se confidential, such as attorney and client, guardian and ward; others may be so, depending upon the facts. Two persons stand in this relation, when confidence is necessarily imposed by one and the influence which necessarily grows out of that confidence is possessed by the other; and an abuse of that confidence is undue influence. Where an old man, of impaired mental powers, comes into the house of a strong man and woman, who, concealing from his relatives, friends and usual business adviser what they are about to do, obtain from him a deed to a valuable farm, expressing as its only consideration an agreement to keep and maintain him during his natural life, the contract will be carefully scrutinized to see that no improper advantage was taken of him or undue influence was exercised by them, and in determining whether such influence was exercised the unnaturalness’ and unfairness of the contract will be considered.
    3. -: -: -: Facts of This Case. The grantor in the deed for 120 acres of land, worth $8000,, sought to be set aside, eighty-five years old, his wife and children dead, had made a will, leaving the farm, with other property, to his two grandchildren, who lived with his daughter-in-law in another State, making the cashier of a bank executor without bond, and left the will with him. Feeble with age and chronic disease, his memory impaired, his sight, hearing and other faculties dimmed or blunted, he relied upon the cashier to advise him in his business affairs, and the cashier in fact transacted his important business for him. In March he went to a hotel kept by defendants to board, was sick there, and dependent on them for proper care. His sickness was serious, and this fact, together with his advanced age, indicated that he had not long to live. They were new-comers in the town, were not related to him, but strangers to him until he went to their hotel to board. He owned other property, and his income was fifty dollars a month— sufficient for his few wants. In May they procured a lawyer to call at the hotel on business, who, in their presence alone, obtained from him instructions to draw up a deed, which was done, and while in bed, and without any suggestion that he should consult the cashier or other friends, he signed and delivered the deed conveying to these strangers .the farm, giving to them immediate possession, for a naked promise to keep and maintain him during his natural life. The next day he declared he had only conveyed the rents during his lifetime, and did not understand what he had done, and took immediate steps to set aside the deed. Afterwards, when he had' again come under the exclusive control and management of defendants, he stated the deed was gladly and voluntarily made, but that statement he repudiated when by habeas corpus he was rescued out of their hands. He died in August. HeZd, that the deed should be set aside on the ground of undue influence.

      Appeal from Daviess Circuit Court. — Hon; Francis H. Trimble, Judge.
    Affirmed.

      James F. Wood and Frank Sheets for appellants.
    (1) This court will review the finding of facts by the trial court in an equity proceeding. Brown v. Pickle, 135 Mo. 405; Penne v. Schnecko, 100 Mo. 250; McElroy v. Maxwell, 101 Mo. 295; Hamilton v. Armstrong, 120 Mo. 597. (2) The burden of proof is on the plaintiffs to prove their case as alleged in their petition. Brown v. Pickle, 135 Mo. 405. And by a preponderance of the evidence. Brown v. Poster, 112 Mo. 297; Taylor v. Crockett, 123 Mo. 300. (3) A grantor in a deed is presumed to be sane and competent at the time of its execution. A grantor who is mentally capable to understand business affairs at the time he executes a deed and understands the motive and effect of such deed, knows what property he is conveying and to whom it is being conveyed, is competent to make such deed. 6 Ballard, Law of Real Property, sec. 185. In determining whether a person had capacity to make a contract, the test is whether he had sufficient capacity to understand the particular contract when he executed it. Moore v. Gilbert, 175 Ped. 1. If Bernhard had mind and memory enough to comprehend and understand the value of the property, and the condition and situation of those who had claims on his bounty, he had the right to make the deed. Moore v. Moore, 67 Mo. 198. Mere infirmity of mind and body is not sufficient to overcome the legal presumption of mental capacity-in a grantor, but the evidence must show that he did not have sufficient understanding to comprehend clearly the nature of the business he, was transacting. Woodville v. Woodville, 60 S. E. 140; Mann v. Keene, 86 Ped. 53; Pennington v. Stanton, 125 Mo. 658. The mere fact that the mind of a person is impaired by age or disease does not render such person incompetent to make valid contracts. Tbe legal test is tbe capacity to understand the nature and effect of tbe transaction. If a person understands tbe nature of the business in which he is engaged and the effect of what he is doing, his acts are valid, and this is true though the mind of such person may be impaired by age or disease. Cutler v. Zollinger, 117 Mo. 101; McKissock v. Groom, 148 Mo. 469; Curtis v. Young, 147 Mo. 587. (4) The defendants were competent witnesses as to conversations between themselves and persons who had testified for the adverse party. Brown v. Foster, 112 Mo. 297.

      Jt W. Peery, Ed. E. Aleshire, John A. Showen and B. S. Bobertson for respondents.
    (1) Fraud will be inferred in a contract made with a person of weak mind, although not amounting to imbecility or unsoundness, when the consideration is grossly inadequate, unless it appear that such weak-minded person had an intelligent comprehension of the disadvantageous nature of the contract to himself and intended the benefit to be obtained under it by the other party, or unless the contract can be reasonably accounted for upon some other hypothesis than that of fraud, imposition or undue influence. Dickson v. Kempinsky, 96 Mo. 252; Martin v. Baker, 135 Mo. 495. (2) The undue influence exercised in the making of a will is not a standard for testing that influence in the making of a contract between the living. In making the contract the mind and will power of one party necessarily come in contact with those of the other, and may thereby be unduly influenced of entirely overcome. Ennis v. Burnham, 159 Mo. 494; McClure v. Lewis, 72 Mo. 314; Obst v. Unnerstall, 184 Mo. 383; Hurley v. Kennally, 206 Mo. 282; Boggess v. Boggess, 127 Mo. 305. (3) No error was committed by the court in excluding the testimony of the. defendant, as under the statutes and decisions of this State they are incompetent to testify to any fact in this case, as Bernhard, the other party to the contract, was dead. Weirmueller v. Scullin, 203 Mo. 466. (4) It would he very strange and remarkable, if_a man, something-over eighty years old, with ample property to provide for himself, should go out and offer his property to whosoever would take it, and to use the homely illustration used by the trial judge. “It would be not dissimilar to a small child going through the streets of a town and offering a twenty-dollar gold piece to whoever would take it.” The question in such case would be, not whether the donation was willingly offered, but whether the person to whom it was offered, should, in equity and good conscience, take it. The facts in this case are stronger against the validity of the deed than they were in the case of Hurley v. Kennally, 206 Mo. 282.
   FERRISS, J.

Suit to set aside a warranty deed, executed by William Bernhard on the 14th day of May, 1907, to Joseph V. Belshe and Harriet E., his wife, conveying to them a farm of 120 acres in Gentry county, worth upwards of eight thousand dollars, for the recited consideration of one dollar and love and affection. The deed contained the following provisions : ' -

“It being expressly understood and.agreed by the parties hereto that the said parties of the second part shall maintain and keep said party of-the first part for and during his natural* life in a manner suitable to his condition in life. Said parties of the second part to have immediate possession of said premises, and the rents, issues' and profits thereof that shall thereafter become due or accrue. ”

The petition charges fraud and undue influence on the part of the grantees, together with mental incompetency in the grantor. -. . -

The uncontroverted facts are that the grantor, William Bernhard, was eighty-five years old, was born in Germany, spent most of his life in this country, and acquired this farm, together with some town property,, by his own efforts; a man who in his prime was possessed of an uneducated but intelligent mind and great strength of will. He spoke broken'English, and was slightly hard of hearing in his latter days. His wife died about 1902. No children were living. The widow of a deceased son and her two young children are the only relatives shown by the record. For some time prior to May 14, 1907, the date of the deed, Bernhard was in declining health, and on that date was sick in body and weakened in mind. He had lived around at different places, part of the time with a tenant on his farm. Prior to 1905 he lived some time in Dakota, living with his daughter-in-law, and while there sustained a fall which he said affected his head so as to impair his memory. His business affairs were in the hands of Mr. Frank Jones,- cashier of a bank in Stan-berry, Gentry county, who was his confidential adviser and who was appointed executor without bond in the last will of Bernhard, executed January 12, 1904.

On March 19, 1907, Bernhard went to board at a hotel kept by the defendants Belshe and wife, who had lived in Stanberry about a year and a half. It does not appear whether Bernhard had any acquaintance with defendants before that time. Bernhard became quite ill at defendant’s hotel, and they took care of him. He had chronic inflammation of the kidneys and heart trouble. On May 14, 1907; early in the afternoon, while Bernhard was still sick in bed at defendants’ hotel, defendant Joseph-Y. Belshe called at the office of Mr. James F. Wood, an attorney-at-law in Stanberry, and told him that' Bernhard wanted to see him at the hotel on business. Mr. Wood called later and talked with Bernhard in the presence of Mr. and Mrs. Belshe. Wood returned to his office, prepared the deed in' question and took it to the hotel, and it was signed by Bernhard while in bed. Belshe paid the one dollar consideration, took the deed and handed it to Wood to be recorded. On May 25th, following, a suit to set aside this deed was filed in the name of Bern-hard in the circuit court of Gentry county. On the same day, in the evening, an inquiry into the sanity-of Bernhard was had in the probate court, which resulted in the appointment of Frank Jones as his guardian. Bernhard died in August, 1907.

This suit was tried upon an amended petition filed by said Jones, as executor of William Bernhard, deceased, and guardian and curator of the minor grand children of Bernhard. Fifty witnesses testified at the trial, twenty-nine for plaintiff and twenty-one for defendants. We cannot discuss this mass of evidence in detail. It has, however, been carefully, and fully examined and considered. As is usual in such case's, there is contradiction in opinions as to the mental condition of Bernhard, but there is little dispute upon the facts given in evidence.

The testimony for plaintiffs tended to prove various facts and circumstances which would indicate that at the time of the execution of the deed in., question Bernhard’s mental faculties were greatly weakened and his memory impaired; that he was in his dotage, or suffering, as two or three doctors testified, from senile debility, and that he was unable to fully comprehend the nature of the transaction. Witnesses for plaintiffs, without substantial contradiction, testified to the following events, which relate both to the charge of incompetency and of undue influence.

On May 25, 1907, Bernhard went to the bank, and in the presence of Frank Jones, Mr. Sager and Dr. Dunshee, stated that he proposed to re-shingle the •roof of the house on his farm. On suggestion there made that he had no farm, that he had deeded it to the Belshes, he indignantly denied it. He said that he had made a lease which provided that they should have the rent from the farm during his life to pay for his board. He expressed great resentment, calling the Belshes thieves. He there acquiesced willingly in a suggestion by Sager that he have Frank Jones appointed his guardian, and proposed that they go at once to Albany for that purpose. Wherefore, Jones, Sager and Bernhard proceeded to Albany on that-day. An inquiry was had that evening in the probate court into Bernhard’s mental condition, before a jury, which resulted in the appointment of Jones as his guardian. At this hearing Bernhard stated that he wanted Jones appointed, that his memory was bad, and that he was not competent to attend to his business. On the way home he requested Jones to find him a boarding place, expressed his determination to never go back to Belshes, and said that he was afraid they would poison him. Jones, Sager and Dr. Dunshee testify to what occurred at the bank; Jones, Sager and the probate judge as to the proceedings in the probate court, and Jones as to what' was said on the way home. Jones and Bernhard returned to Stanberry on Sunday, May 26, Jones taking his ward to the Wabash hotel, kept by a Mr. Jones and wife, not related to Frank Jones, and arranging for his board there. On the evening of that Sunday Mrs. Belshe came to the Wabash hotel and talked with Bernhard. On this point the landlady of the Wabash hotel, Mrs. Sarah J. Jones testified as follows:

. “She came and put her hand on his shoulder, and says, ‘Grandpa, where have you been? I have been hunting over town for you.’ ‘Oh,’ he says, ‘I have just come down here.’ She says, ‘You have been kidnapped.’ He says, ‘No mam, I haven’t.’ She kept on talking to him. I asked her if she wouldn’t go to the back parlor and talk. They did go back there, and were talking, and she insisted he should go home with her that night; and she told him — ”

Mr. Wood, interrupting: “Q. Where was it she commenced to talk to him first? A. First, she commenced to talk in the office. . . . She insisted that he should go home with her.”

Mr. Wood: “Q. Was this talk in the office? A. No, sir, it was in my private room — that was after I asked them to go hack. Q. You were in the private room, were you? A. I was sitting in the adjoining room. She insisted that he should go. She says, 'Now grandpa, you knew you was signing a deed. ’ He says, 'I did not; I intended for you to have a lease on that farm, and for you to take care of me as long as I lived;’ and she said, ‘You come home with me and I. will convince you,’ and then she insisted that they go. She had her arms around his neck and was crying; and I stepped to the door and says, ‘He can’t go tonight. ’ That’s all I said to the lady. Then she stayed a little while longer, and took her girl with her and went away. Grandpa went back into the office then, and talked with Mr. Jones. Q. What did he say ■about this matter? A. I can’t tell you anything he said much, only when she started. He retired early. He says, ‘I guess I will retire.’ I told the night boy to take him up to his room, and he started; and I says, 'Good night, Mr. Bernhard; have a good sleep tonight.’ He says, ‘ Yes, I won’t have so much love, but I can sleep to-night.- I can have a good night’s sleep.’ That’s the last words I ever heard Mr. Bernhard say, . Q'. You say you didn’t see him any more? A. No, sir, he was gone when I sent up for him to come to breakfast.”

Bernhard returned to the hotel of the Belshes on Monday morning, and remained there until June 21st following. He was visited there by Prank Jones, who found him in bed, sick. Bernhard then expressed great anger toward Jones, accusing him of wanting to put Mm in an asylum, and refused to go with, him, saying he wanted to stay where he was. One or both of the Belshes were present during the visit. Later, Jones instituted habeas corpus proceedings against the Belshes, and Bernhard was taken away, against his protest. With regard to this incident the sheriff testified as follows:

“I think, when I stepped in the room where he was, Mrs. Belshe was in the room where he was. Q. Well, do yon remember what she said and what she did? A. Well, I told the old gentleman what I was there for, and he says, ‘I don’t know you;’ and I believe that she spoke up and told him ‘that’s the sheriff.’ He says, ‘The sheriff?’ he said, ‘I haven’t got. any business with the sheriff;’ says, ‘I haven’t done anything.’ I says, ‘No grandpa, you haven’t.’ I says, ‘I have got to move you.’ ‘Move me?’ he says, ‘You are going to take me to St. Joe.’ He says, ‘I am not going.’ I says, ‘I am not going to take you to St. Joe.’ He says, ‘I know you are.’ So I insisted on his going, but he wouldn’t consent to go.”

By the Court: “Did he say how he knew you were going to take Mm to St. Joe? A. No, he didn’t tell me how he knew I was going to take Mm. I told Mm I was going to take him out to Mr. Temple’s, but he didn’t seem to believe me at all. I insisted on his going, but he wouldn’t consent, as I told you, and he finally agreed, if they were willing, he would go.”

By the Court: “If who were willing? A. If Mr. and Mrs. Belshe were willing. I went to Mrs. Belshe and told her, ‘I am going to take him; I have got to take him. Of course I don’t want to hurt Mm or be rough with him, and I’d rather get his consent than to take him against his will; and if you can say anything to induce Mm to give Ms consent to go it will be better all around- — better for him and better for me.’ She says, ‘I won’t do it;’ she says, ‘If you take him, you’ll just have to take him, that’s all.’ ‘Well,’ I says, ‘I will have to take him.’ I went from her to Mr. Belshe, and asked him the same thing. He says, ‘No, if you take him you’ll take him — I am not going to tell him to go or not to go.’ I says ‘All right.’ So I think myself and Mrs. Temple went to Ur. Mc-Caslin to make inquiries as to whether he thought he was able to stand the trip or not — I didn’t know how bad he was — he was in bed, and I wanted Dr. McCaslin’s advice, and I asked him; and he says he thought he could stand the trip all right; and I says, ‘Well, this evening I am going to take him. ’ So I left Mrs. Temple at the doctor’s, and went down town to get help to take him. When I got back to the hotel Dr. McCáslin and Mrs. Temple were there, so I went in and told him that I had come to take him away; and he says, ‘I no go.’ So we taken hold of him, put his feet on the floor, put his socks on and put his pants on — put his clothes on — and after he seen we was going to take him he didn’t fight against it quite so hard — helped to get his clothes on.”

By the Court: “He didn’t fight quite so hard? A. No, sir; when he seen we was going to take him— of course, I didn’t know where his clothes were, his coat and pants and shoes, — and I asked Mrs. Belshe where they were. She didn’t tell me; and I asked her about his medicine, and she wouldn’t give me any satisfaction about that. She said it was on the stand. I said I didn’t want to get something he wasn’t taking. She says, ‘You can get whatever you want to — I will not have a thing to do with it. ’ So I got what medicine was on there she'said belonged to him.”

The sheriff took Bernhard out to the house of Mr.George Temple. On arriving there Bernhard ex-presséd distrust and dislike for Jones; but his attitude changed that evening. His daughter-in-law and two grandchildren were at the Temples’ when he arrived. He expressed pleasure' at seeing them, caressed the children,, and said, “We are a happy family again; now we will live together.” He said the Belshes were French gypsies, and that she was a gypsy witch and could do anything with him that she wanted to. He seemed very happy. Frank Jones came to see him on the second day. Bernhard was cordial to him, and spoke of him as having always been his best friend. After a few days, Bernhard went to live with his daughter-in-law, and remained there until his death, in August, 1907.

Evidence for the plaintiffs tended to show, further, that Mrs. Belshe refused to allow Mrs. Minne Bernhard, the daughter-in-law, to have a private conversation with Bernhard.

Several persons, including two doctors, visited Bernhard about the last' of May, and testified for the defendants that, in their opinion, although his mind appeared to be somewhat, weak to them by the natural effect of age, it was still sound. Other witnesses who knew him and saw him prior to May 14, the day of the execution of the deed, gave similar testimony. Most of the defendants’ witnesses gave merely negative testimony; that is, that so far as they saw or noticed, his mind was right. They gave few incidents of fact. Two of them in particular narrated remarks by Bernhard which tended to support the theory of plaintiffs, although the same witnesses gave opinions that he was sound mentally.

The main witnesses for the plaintiffs were persons who had been intimately associated with Bern-hard. These were Mr. Jones, his business adviser; the Temples, with whom he had lived, and his regular physician. They related numerous incidents on which they based their opinions that he was incompetent to understand or transact business. The opinion witnesses for the defendants, and many for the plaintiffs, were mere casual visitors. Two physicians who were called in by Belshe on May 28, after the guardian was appointed, and the. day after Bernhard left the Wabash, hotel and returned to the Belshes, testified at the trial. One testified that Mr. Belshe was there; that Bernhard complained of the attempt of Jones to take him away; that he said he liked the place and the people; that he had worked for what he got, and ought to do with it as he pleased; that if he was as young •as he' once was they couldn’t take him. The other doctor testified that Bernhard said that he had deeded his farm to the Belshes to take care of him; that if he lived two years they would have a bad job, but that if he died in six months or a year they would make money.

Other witnesses who visited Bernhard after May '28, testified, in substance, that Bernhard said he had ■deeded his farm, and was satisfied.

Mr. James F. Wood, the attorney who prepared "the deed, testified as to the. circumstances surrounding the making of the deed in question. In substance, his evidence was that Mr. Belshe called at Ms office early in the afternoon of May 14th, and stated that Bernhard wanted to see him at the hotel about some business; that he went there, between three and four o’clock, and listened to a long, rambling, desultory talk about various disconnected matters, by Bernhard, who finally said that he wanted witness to tell him how to convey his farm to the Belshes in consideration that they would keep him the rest of his life, and whether it should be by will or deed; that Bernhard •said he had made a will, with Frank Jones as executor, and that the will wras at the bank. Witness advised a deed, and, Bernhard approving, witness went to his office, wrote the deed, returned with it to the hotel, and read it all over to Bernhard once, and the clause providing for his maintenance a second time; Bern-hard approved it, signed it in bed, acknowledged it before witness as notary, and delivered it to Belshe, who paid the one dollar money consideration. Belshe then handed the deed to witness to he sent to the recorder’s office. Both of the defendants were present, during all the time witness talked to Bernhard and when the deed was signed. No one else, was present. Bernhard also talked to witness about his other property, which was to go, he said, to his grandchildren.. In the opinion of witness, Bernhard was capable of understanding the transaction. After the guardian was appointed, witness advised Belshe to call in some-doctors, and let others in to see Bernhard, if they came “in a fair and reasonable spirit, and not in the-role of meddlers or trouble-makers.” All this advice-was “inasmuch as we didn’t know what proceedings-would take place.” On cross-examination, witness, stated that Bernhard said, when the instructions were-given for the deed, that he wanted to turn over the-possession and rents immediately. "Witness' advised Mrs. Belshe to go to the Wabash hotel on the day Bernhard was placed there by his guardian, “and; give Mr. Bernhard assurance that she was ready and Mr. Belshe was ready to perform their part of the contract, and that the house was open to him, and he-would be received back if he wanted to come back.” Q. “Tell the court why you didn’t send Mr. Belsheinstead of Mrs. Belshe?” A. “I said I advised Mrs. Belshe; I want to modify that by saying I suggested to them, as parties to this contract, that it would be incumbent upon them to signify willingness to perform their part of the contract.” At this time Wood, had heard by telephone from Albany of the appointment of the guardian, but had not seen the papers.. Witness advised the Belshes concerning the habeas, corpus proceedings, and represented them at the trial of this case, and represents them here.

Counsel for defendants has briefed this case on the theory that it involves the question only of mental capacity. All his citations are upon this point.

The petition is grounded on undue influence, and counts but lightly on incapacity. The main allegation is this:

“Plaintiffs further state that the said defendants, by acts and blandishments and assiduous attentions to said William Bernhard during an attack of illness, and while-he was boarding with them as aforesaid, obtained an undue influence over the mind of said William Bernhard, and fraudulently and falsely induced and ‘persuaded said William Bernhard to believe that he was in great danger of coming to want, and that they, the said defendants, were his best and only friends, and he, the said William Bernhard, being old and feeble and weak of mind as aforesaid, and unable by reason thereof to resist the entreaties and undue influence of the defendants, and being by them prevented from consulting with those who had for years advised him in business matters, was induced by said defendants, secretly and without opportunity to consult or advise with his friends, and those who had for years managed his business affairs, to execute the instrument aforesaid, without being capable or competent to understand the nature and character thereof; that said defendants, by reason of the weak and feeble condition of the said Bernhard, and by their arts and attentions to him, acquired an absolute control and undue influence over him, with the purpose and intent of fraudulently obtaining from him the land aforesaid without consideration, and the execution of said instrument was caused and procured by said defendants, as a direct result of said undue influence, and of said want of mental capacity on the part of said Bernhard to either resist thg influence of the defendants or to understand or appreciate the character and nature of said instrument.”

These allegations are denied in the answer.

Appellants rest their case upon the proposition that if a person has enough capacity to understand the nature of the business in which he is engaged, and the effect of what he is doing, his acts are valid, even if his mind is impaired by age or disease. Conceding this proposition and conceding further, for the present, that under the evidence Bernhard had capacity, measured by this test, the case is by no means settled in favor of appellants. The important question is, was fraud practiced on Bernhard by means of undue influence? In considering this question the fact that Bernhard’s mind was weakened by age and disease becomes important.

We have these two propositions to consider in this case:

(a) Was Bernhard wanting in sufficient intelligence to make a binding contract? The evidence does not show him to have been either insane or an imbecile. It does show, upon the testimony of the witnesses on both sides, that his mind was seriously impaired by age and disease — so much so as to cause him to yield readily to the persuasion of others. We do not say that his mental condition was such that would in itself invalidate a fair contract, made under proper circumstances for proper purposes.

(b) Was this deed procured by fraud? On this point the field of investigation is broad. We should consider the relationship of the parties, the character of the transaction, the mental condition of the grantor, and the adequacy of the consideration. What is a confidential relation? This question cannot be answered by any general rule. Some relations- are per se confidential, as attorney and client, guardian and ward. Others may or may not be so, depending upon circumstances. “ ‘The only question is, Does such relation 'in fact exist?’ While the relation of nurse and patient may raise the question, yet it does not in itself answer that question, but the inquiry is still one of fact.” [Studybaker v. Cofield, 159 Mo. l. c. 613.]

This idea is more fully elaborated in Martin v. Baker, 135 Mo. l. c. 503, where we approve the following statement of the law in this regard: “Wherever two persons stand in such a relation as that, while it continues, confidence is necessarily reposed by one, and the influence which naturally grows out of that confidence is possessed by the other, and this confidence is abused, or the influence exerted to obtain an advantage at the expense of the confiding party, the person so availing himself of the position will not be permitted to retain the advantage, although the transaction could not have been impeached if no confidential relation existed.”

In the same case we say further:’ “Another well recognized principle may be stated in this connection, which is, that one may be capable of making a will, and yet incapable of making a contract. In making the latter his mind and will power necessarily come in contact with that of the other contracting party, and may be unduly influenced or entirely overcome by it. A contract, therefore, by one of impaired mental and will power with one standing in confidential relations with him should be closely scrutinized to see that no improper advantage has been taken or undue influence exerted. The exertion of undue influence in such case may be pronounced from the_ nature of the contract, and from an unfair and unreasonable advantage secured by it.”

In McClure v. Lewis, 72 Mo. 314, we said this in a case where a'woman deeded her property to a niece with whom she was living, in consideration of love and affection, reserving a life estate: “While there is no technical relation of trust between the parties, a relation of intimacy and kindred was established between the plaintiff (grantor) and Lewis and his wife (grantees), which enabled the latter, if so disposed, to influence the plaintiff, who lived in their house as one of the family, and was greatly dependent upon them for society and comfort.”

We also in that case quoted with approval the following’ from a decision by Lord Eldon: “He who bargains in matter of advantage with a person placing confidence in him, is bound to show that a reasonable use has been made of that confidence; a rule applying to trustees, attorneys, or any one else.”

And this (in the same case) from Lord Kenyon: “It is said he was cautioned. It is true, and so far the parties did right; but they ought to have gone further ; they should not have permitted the man to have made the bargain without going to consult his friends. There was not sufficient locus penitentiae-, there was no persons present to give him advice. He was entirely in their hands. ’ ’

Ennis v. Burnham, 159 Mo. 494, ruled that a deed to land worth between six and eight thousand dollars, for the support of the grantor, aged seventy-eight, and his wife, was grossly inadequate as to consideration, and the bargain was “hard and inconceivable,” although made to a daughter and her husband. The court, commenting on the evidence, says: “That the inadequacy of the consideration and the unfairness of the bargain must have been palpable to the healthy, discerning eyes of the grantees cannot be doubted. That the grantor did not comprehend and did not intend to execute a deed of the purport of this one, is fairly inferable from the evidence. That he was in a condition to be easily influenced, and the grantees in a position to exercise such influence, is also beyond question, and that the deed was the product of such influence exercised by them, is the only rational explanation of all the facts and circumstances of the case. In view of the character of the contract and the relation of confidence and trust sustained by the grantees to the grantors therein, the influence which produced this deed must be held to be undue and illegal.”

The case of Martin v. Baker, supra, is clearly in point both upon the facts and conclusions thereon.

The cases cited by appellants are in harmony with those referred to above, and do not help appellants upon the questions involved here. We will refer to some of them:

Pennington v. Stanton, 125 Mo. 658, involved no question of undue influence. The deed was set aside in the trial court solely on the ground of mental incapacity. The facts in that case were that the grantor, a woman, seventy-two years old and an invalid, deeded her farm of ninety acres — value not given- — in March, 1889, to the defendants, who had taken care of her since March, 1887, and Mio continued this care until her death, in 1892. The suit to set aside the deed was brought after her death. Aside from this farm, the grantor in the deed owned a few head of stock and four or five hundred dollars in money. The proof showed that the support and care given by the defendants was adequate consideration for the deed. The proof further showed clearly that she knew the contents of the deed, and there was no evidence of undue influence. Five witnesses gave testimony of doubtful weight tending to show incapacity, while thirteen witnesses testified that she was of sound mind and capable of managing her property. This court held that the evidence was strongly in favor of the defendants, and for this reason reversed the case.

The case of Cutler v. Zollinger, 117 Mo. 92, involved only a question of mental capacity. Upon this point the court affirms the familiar doctrine that “the real question in this case is one of fact, and that is whether the plaintiff had sufficient reason to know and understand what she was doing in making the sale.” The trial court found that the grantor had sufficient capacity, measured by this rule. The sale was an ordinary transaction, for full value, made through real estate agents, after consultation with and approval by the grantor, nothing appearing in her manner to indicate any lack of mental capacity on her part. The judgment was affirmed.

In McKissock v. Groom, 148 Mo. 459, the court found as a fact that there was neither undue influence nor mental incompetency. This case is important in that it points out the distinction between undue influence exerted by a child upon a parent through the mere love of the parent and that exerted by a stranger; that is to say, the difference between yielding through love and yielding through ihental weakness.

Cutts v. Young, 147 Mo. 587, involved this state of facts. The grantors, Cutts and his wife, were old and feeble. They had an imbecile son., ' Cutts determined voluntarily to deed this land to the defendant in consideration of support for himself, wife and son during their lives. He made the proposition to defendant, who accepted it. A deed was executed by Cutts and wife providing for such support. Both Mr. and Mrs. Cutts died a few days thereafter.. Suit was brought by the feeble-minded son and other children to set aside the deed. The court used the following language in its opinion sustaining the deed: “Knowing the infirm condition of himself and wife, and that they could not live much longer, his purpose in making the deed seems to have been to provide a means of support for them, and their son George, in their helpless condition, during their natural lives, as he said, so that they would not have to work. Whether the mode selected was a wise one or not is not for our consideration, but certain it is, it was of the grantor’s own suggestion and volition. There is nothing in the record which we think shows that William Cutts was incapable of making the deed in question, or that it was obtained by fraud or undue influence on the part of the defendant. We are supported in the conclusion reached by the finding of the court below, to whose judgment we must to some extent defer. We therefore affirm the judgment. ’ ’

The case just cited goes no further than to sustain the proposition that Bernhard had the legal right and power to make the deed in question, if it was upon his own volition and with full knowledge of its import.

Studybaker v. Cofield, supra, involved only questions of fact. It was held in that case that there was not sufficient proof of either incompetency or undue influence to invalidate the deed. Upon the point of the relation of nurse and patient, with opportunity for undue influence, what is said in that case does not help plaintiffs in the case at bar.

Guided hy the foregoing principles, let us review the situation here: Bernhard, eighty-five years of age, had made a will, leaving his farm, with other property, •to his two grandchildren, who were the natural objects of his bounty. He made Frank Jones, cashier of the bank, executor without bond, and left the will with him. Bernhard was-feeble with age and chronic disease, his memory impaired, and his sight, hearing •and other faculties blunted. líe relied upon Jones to advise him in his business affairs, and Jones in fact transacted his important business for him. His farm was occupied hy a tenant. He had no home. He goes to hoard at a hotel kept hy defendants, in March. Is sick there, and dependent on them for proper care. His sickness is serious. This fact, together with his •advanced age, indicated that he had not long to live. The Belshes were comparatively new-comers in the town, were not related to Bernhard, but, so far as this record shows, strangers to him until he went to their hotel in March. He had an income from his property -of fifty dollars a month — sufficient, it would seem, for his few wants. He owned a farm worth from seven to eight thousand dollars, besides other property in town. On May 14th Belshe procured a lawyer to call at the hotel to see Bernhard on business. So far as we know, tliis lawyer liad never done any legal business for Bernhard. The lawyer calls at the hotel, talks with Bernhard in the presence of the defendants and with no one else present. Mr. Wood, the attorney in -question, does not claim to have advised Bernhard; he sought only to get instructions. Bernhard had no one to advise him, unless peradventure the Belshes were good enough to add this to their other kind offices. There was no suggestion made that he should consult Ms friends, nor was time or opportunity given him to do so. The deed was at once prepared, read over to Mm, signed in bed, and delivered, conveying absolutely, with right of immediate possession, • a farm worth upwards of eight thousand dollars in consideration of a naked promise by comparative strangers, who are not shown to have had any financial responsibility, to care for him until his death, an event obviously near at hand. The entire proceedings, from the beginning of the talk with the lawyer to the delivery of the deed, transpired between a time fixed by Mr. Wood as between three and four o’clock in the afternoon and supper time. That the situation of the parties required that friends of Bernhard should be consulted before the deed was signed was conceded by Mr. Wood on the witness stand. He was asked whether he had not stated that if it had been in his power he would have advised Bernhard not to sign the deed. In response he said:

“I don’t think I did. I couldn’t say; I might have made some suggestion as to whether or not it might have been best to have suggested the coming of some friends of the other parties at the time of the making of the deed, so as to have shown that Bernhard was in a proper condition. Q. In other words, you may in this interview with your brother-in-law have expressed some misgivings as to whether a little more time should have been taken in the matter? A. Not in the sense that I think you mean to have it implied. Now if you will.permit, Mr. Perry, as I understand it, transactions of this'kind are closely scrutinized by all parties, and should be closely scrutinized, and the conduct of persons who take property by gift, or from an old person, should be inquired into with care to the utmost fairness to all concerned. Along these lines, I don’t think it would have been a bad thing for Mr. Bernhard, nor for the Belshes, nor for those who are prosecuting this suit, to have had more witnesses present at the signing and delivery of this deed. ’ ’

If Bernhard had lived to the full limit expressed by him, two years, the consideration would have been grossly inadequate.

The transaction, taken by itself, without further proof, considering the relations of the parties, the mental condition of the grantor and the inadequacy of the consideration, will not bear the scrutiny of the law. The subsequent conduct of Bernhard shows that he did not understand the next day what he had done. He declared that he had only conveyed the rents dun ing his life time, and took immediate steps to set the deed aside. It was not until he came again under the exclusive control and management of the defendants, that it was given to him to know that he had gladly and voluntarily deeded away his ownership of the farm.

Taking all the facts in evidence into consideration, we cannot doubt that the judgment below should be affirmed. It is so ordered.

Kennish, P. J., and Brown, J., concur.