author: GANTT, J.

text:
    VAN RAALTE v. EPSTEIN, Appellant.
    Division Two,
    March 5, 1907.

    1. PLEADING: Proof: Subsidiary Allegation, it is sufficient if the substance of the issue is proved, even though some of the subsidiary allegations are not proved — provided, of course, that defendant is not misled by the form of the pleading.
    2. PRINCIPAL AND AGENT: Fraud: False Pretense: No Pro,of: Surplusage. Allegations charging that plaintiff’s agent had already made secret arrangements with a third person to purchase the plaintiff’s property at a price far in excess of what plaintiff had finally been induced by his agent’s false representations to offer the property for, that the agent caused his own agent to call on plaintiff and pretend to be the agent for the exchange of this agent’s property for plaintiff’s property, and concealed from him that it was the agent’s property, may all fail for lack of proof, and yet the petition state a good cause of action for fraud. In this case those allegations may be omitted as surplusage, and yet the petition shows that the agent was unfaithful to his principal, and by concealments and double-dealing caused his principal to part with his property at less than its real value to the agent .himself. [Distinguishing Huston v. Tyler, 140 Mo. 252.]
    3. -: -: Unfaithfulness. An agent will not be allowed to put himself in a position antagonistic to his principal, or to speculate on the subject of the agency. A failure of the agent to keep good faith with the principal is a fraud.
    4. -: -: Confidential Relation. Trustees, agents, administrators, guardians, attorneys and others whose connection with any person is such as to establish a confidential relation between them concerning such person’s property, or to give them special knowledge or opportunities in regard to it, cannot, without and often with, his full knowledge and consent, become the purchaser of such property.
    5. -: -: Secret Purchase of Property: Concealment. An agent who, through the medium of “straw” men and an undisclosed agent of his own, and by concealment of the fact that he is the owner of certain property, induces his principal to take that property in exchange for his own property, without knowledge that the agent thereby becomes the owner of the principal’s property, and who soon thereafter sells the property so acquired at much more than the principal was led by the agent to believe the purchaser would give, is guilty of perpetrating a fraud upon his principal, and may be made to respond in damages to the principal for the difference between the amount in value of the property the principal received in the exchange and the amount for which the agent subsequently sold his principal’s property.
    6. -: -: Trial by Jury: Innocent Purchaser: Damages. Where the petition prays for a money judgment alone, and no , other relief is asked or is possible, the issue, though founded on the fraud of an agent, is triable by a jury. In this case, the agent by concealment and misstatements had acquired his principal’s property, and sold and conveyed it to an innocent purchaser, and the principal sues the agent for fhe difference between the amount he received for the property and what the agent sold it for, and it is held, that the plaintiff was entitled to a jury.
    7. -: -: -: -: -: Equity. Jurisdiction of courts of law to grant relief by way of damages growing out of fraudulent transactions is a very ancient one, and where full and'adequate relief may be administered in a court of law by an award of damages on account of fraud, the injured party may bring his action in a court of law. Besides, the statute says that “an issue of fact in an action for the recovery of money alone . . . must be tried by a jury;” and where the perpetrator of the fraud has transferred to an innocent purchaser the property by him fraudulently acquired, the injured party has no redress except in an action for damages.
    8. -: Commissions. An agent who has been guilty of fraud in the transaction of his principal’s business, forfeits the commissions paid by him to others who acted for him in consummating the transaction.
    9. -: Amount of Damages. The agent is responsible to his principal for the loss or damage the principal suffered by reason of his fraudulent and unfaithful conduct in the transaction of the business, whether he reaped the benefits alone or shared them with others who aided him to perpetrate the fraud.
    Transferred from St. Louis Court of Appeals.
    Aefirmed,

      Bond, Marshall £ Bond for appellant.
    (1) If there is no substantial evidence of any fact which is essential to plaintiff’s right to recover, a judgment in his favor must be reversed. Hewitt v. Steele, 136 Mo. 335; Long v. Moon, 107 Mo-. 339; Moore v. Hutchinson, 69 Mo. 430; G-roll v. Tower, 85 Mo. 253; Bartley v. Railroad, 148 Mo. 141. (2) Mere conjectures, speculations, surmises or suspicions do- not constitute a legal basis for a finding of facts or the verdict of a jury. Peck v. Railroad, 31 Mo. App. 126;- Glick v. Railroad, 57 Mo. App. 104; Erhart v. Dietrick, 118 Mo. 427. (3) Plaintiff cannot sue on one cause of action and recover upon another. Huston v. Tyler, 140 Mo. 264; Haynes v. Town of Trenton, 108 Mo. 132; Christian v. Ins. Co., 143 Mo. 469; Cole v. Armour, 154 Mo. 351; Newham v. Kentin, 79 Mo: 382; Harris v. Railroad, 37 Mo. 307. (4) There is no evidence in the record tending to show the existence of any agency between plaintiff and defendant in connection with the sale to Harris. (5) Dealings between principal and agent are not prohibited. Such transactions are perfectly valid, if free from fraud, the only difference being that the burden is on the agent to establish the good faith of the transaction, whereas, in other cases, he who alleges fraud must prove it. State ex rel.' v. Jones, 131 Mo. 210. (6) The opinion of the Court of Appeals rendered in this cause is in direct conflict with numerous decisions of this court. Particularly the following: Huston v. Tyler, 140 Mo. 264; Cole v. Armour, 154 Mo. 351; Haynes v. Town of Trenton, 108 Mo. 132; Christian v. Ins. Co., 143 Mo. 469; Newham v. Kentin, 79 Mo. 382; Harris v. Railroad, 37 Mo. 307; Glick v. Railroad, 57 Mo. App. 104; Hewitt v. Steele, 136 Mo. 335; State ex rel. v. Jones, 131 Mo'. 210'. (7) The court erred in its action, in submitting this case to a jury and in refusing to- try the issue herein as chancellor, because: (a) The petition in this case is peculiarly a bill in equity. It is based upon a trust; its object and purpose is to create a trust in plaintiff ’s favor, to have the defendant found to be a trustee for plaintiff and to force him to account to plaintiff for profits made by him whilst acting in a fiduciary capacity as plaintiff’s agent. Grumley v. Webb, 44 M°-450; Hunter v. Hunter, 50 Mo. 445; Smith v. Tyler, 57 Mo. A.pp. 672; Bent v. Priest, 86 Mo. 482; Hunter v. Whitehead, 42 Mo. 524; Ridgway v. Herbert, 150< Mo.. 606; Jones v. Henderson, 149 Mo. 403. (b) Such cases are in the exclusive jurisdiction of courts of equity. Bispham’s Eq. (6 Ed.), pp. 32 and 143-144; 1 Perry on Trusts (5 Ed.), 17; 27 Am. and Eng. Ency. Law, 271; 2 Pom. Eq. Juris. (2 Ed.), pp. 872, 911, 910 and 920; Kerr on Fraud and Mistake (Bump’s Ed.), p. 324. (c) Being a case of equitable cognizance, it was properly triable by the court and not by a jury. Long v. Long, 141 Mo. 371; Brim v. Fleming, 135' Mo. 604; Ridgway v. Herbert, 1501 Mo. 606; Kemp v. Foster, 22 Mb. App.. 643. (8) If plaintiff could recover under the petition and evidence (which we deny) then the damages are grossly excessive, because: (a) Under the instructions of the court, the jury rendered a verdict against defendant for the gross profits made on the deal in selling the La Salle street property. The testimony shows that he received only one-half of the net profits. He was liable, if at all, only for what he actually received. Hunter v. Hunter, 501 Mo. 445; Bent v. Priest, 86 Mo. 476. (b) In any event, defendant was entitled to be credited with the commissions on the sale paid to Aiple & Hemmelmann and all the cash, outlays and expenses connected with the sale. Hunter v. Hunter,^ supra; Grumley v. Webb, 44 Mo. 455; Jacques v. Edgell, 40 Mo. 76; Murdock v. Wilson, 84 Mo. 96; 2 Pom. Eq. Jur. (2 Ed.), p. 910. (9) The court’s instructions, given to the jury at plaintiff’s instance, are erroneous. And they are inconsistent with the only instruction given in behalf of defendant and with the issues raised by the pleadings.

      Collins é Chappell and Joseph 8. Laurie for respondent.
    (1) The question as to whether or not the issues of fact in this case were properly submitted to a jury for determination is settled by express statutory enactment. R. S. 18991, sec. 691. The petition in this case prays for a money judgment only; no other relief was asked or was possible. As the La Salle street house had been sold and was then owned by an innocent purchaser, it was only possible for Van Raalte to demand and recover that which he had lost in value or money by the fraudulent acts of Epstein. It was, therefore, an issue of fact for the recovery of money only, and, in the language of the statute, “must be tried by a jury.” Ragan v. McCoy, 29 Mo. 356; Ellis v. Kreutzinger, 31 Mo. 432; Smith v. Harris, 42 Mo-. 557; Major’s Heirs v. Rice, 57 Mo-. 384; Hamilton v. Hamilton, 59 Mo-. 233; Kitchen v. Railroad, 59 Mo-. 514; Thomas v. Railroad', 109 Mo. 187; Benoist v. Thomas, 121 Mo. 660; Smith v. Canning Co., 14 Mo-. Ap-p. 522; Donovan v. Barnett, 27 Mo. App. 460; Routt v. Milner, 57 Mo-. App. 501. It is apparent that the statute in express terms, and as interpreted by the appellate courts of this State, provides that issues of fact, in all actions for the recovery of money only, must be tried by a jury, unless a jury trial is waived by both parties or a reference be ordered. (2) Appellant contends that the essential facts constituting plaintiff’s cause of action, as set forth in the petition, were wholly unsupported by evidence. The ground of this contention is that the petition alleges that, at the time the contract for the sale of the La Salle street house was entered into with Harris, defendant had already made an arrangement with Dr. Tomlin for the purchase by Tomlin of said property at a price greatly in excess of the $4,500 received by Van Baalte, and that there was no evidence whatever tending to show any such pre-arrangement by defendant with Dr. Tomlin. It is true that the petition does contain such allegation, but it is not true that such allegation constituted the basis of plaintiff’s right of recovery, or that the same was essential to plaintiff’s cause of action. Neither was plaintiff’s recovery predicated upon the truthfulness of said -allegation. It was not necessary to plaintiff’s cause of action, as set forth in the petition, that any such pre-arrangement should have been alleged, and it was wholly immaterial to plaintiff’s right of recovery whether, in fact, the pre-arrangement alleged existed or not. (3) The jury returned a verdict in favor of plaintiff in the sum of $1,350, which is the difference between the amount that Van Baaltei received in the transaction for his La Salle street house and the price for which the plaintiff sold said house to Dr. Tomlin. Appellant contends that this is excessive, for the reason that plaintiff only received, as he claims, one-half of the profit of the sale to Dr. Tomlin, and for the further reason that the commissions paid Aiple & Hemmelmann for the sale of said property, and certain other expenses incident to the transfer of title, were not taken into consideration. The point thus made by appellant was vigorously urged before the Court of Appeals upon both hearings of this cause, and was in each instance overruled by said court, which appears from the opinions of Barclay, J., and Beyrurn, J., in said case, to which we refer the court. We also cite the following cases in support of our contention: Davis v. Hoffman, 167 Mo. 573; Smith v. Boyd, 87 Mo. App. 647; Mayor, Etc., v. Lever, 25 Q. B. D. 363,1 Q. B. S. R. 173; Chandler v. Bacon, 30 Fed. 538; Getty v. Devlin, 70 N. Y. 504; Euneau v. Rieger, 105 Mo. 659. It seems that in the case at bar defendant is not claiming compensation, but reimbursement. It is well settled that an agent is not entitled to reimbursement for any expenditures or outlays incurred by him in consequence of his, own breach of duty. Tiffany, Agency, sec. 118. The petition prays for judgment in the sum of $1,350', that being the amount, as alleged by the petition, which was received by Epstein for the La Salle street house over and above the price which plaintiff received for said property. The answer is a general denial. If defendant wished to reduce this claim by reason of any sum due him as compensation or reimbursement he should have pleaded the same by way of a counterclaim, and having failed to do so, he cannot put the lower court in error for not recognizing such claims in the instructions submitted to the jury. (4) It was immaterial, so far as concerns plaintiff’s right of recovery, whether or not the pre-arrangement between Epstein and Tomlin, as alleged, existed. The matters complained of as having been assumed by the court in the instruction to be true, are, on the contrary, fairly and squarely submitted by the instruction to the jury for determination. (5) It is well settled by numerous decisions of this court that where it appears from the whole record that the verdict is manifestly for the right party, the judgment will not be reversed for errors of the lower court in giving or refusing instructions. Burns v. Liberty, 131 Mo. 372; King v. Ring, 155 Mo. 406; Moore v. Railroad, 176 Mo. 528.

      Note. — Decided December 22, 1906. Motion for rehearing filed. Motion overruled March 5, 1907.

   GANTT, J.

This is an action to recover $1,350, on the ground of an alleged fraud. It was brought to the February term, 1900, of the circuit court of the city of St. Louis. At the February term, 1901, the cause was tried before the court and a jury, and resulted in a verdict for the plaintiff for $1,350. After unsuccessfully moving for1 a new trial and in arrest, the defendant appealed to the St. Louis Court of Appeals, and that court at the October term, 1902, affirmed the judgment. A rehearing was granted and the cause reargued in that court and on April. 14, 1903, the Court of Appeals again affirmed the judgment of the circuit court. Motions for a rehearing and to transfer the cause to this court were heard and overruled at the October term, 1903, but afterwards and during the said term, one of the judges of said court having become satisfied that the decisions of the Court of Appeals was opposed to prior decisions of this court it was ordered that the cause be certified to- this court for determination. Owing to the unfortunate form in which the dissenting opinion was framed we ordered the cause remanded to the Court of Appeals, but upon a further consideration of the whole record we were convinced that the order to transfer was based upon a misapprehension of the record. Accordingly the order to transfer was set aside, and the cause taken as submitted upon the argument of counsel and briefs filed on both sides.

Inasmuch as the ground for certifying the cause to this court is, that the plaintiff was permitted to recover upon a cause of action different from that alleged in the petition, and wholly failed to- sustain the cause of action stated in the petition, we deem it best to set forth the petition in full:

“Simon Van Baalte, plaintiff herein, for cause of action against Jacob I. Epstein, defendant herein, states:

“ That the defendant, at the time hereinafter mentioned, and for a long time prior thereto has Ipeen engaged in the business of real estate and financial agent in the city of St. Lonis and State of Missouri, and as such was engaged in the buying and selling of real estate and collecting the rents of real estate for other persons as his clients. Plaintiff further states that for a long time prior to the month of September, 1898, he has been a client or customer of the defendant, and as such has repeatedly entrusted the defendant with the care and management of his, the plaintiff’s real estate, and the sale thereof, and of the collection of the rents therefrom. Plaintiff further states that on or about the 13th day of September, 1898, he became, and until the time hereinafter mentioned was, the owner of certain real estate in the city of St. Louis, Missouri, described as a lot in block 2221 in said city of St. Louis, fronting thirty-five feet on the north side of La Salle street by a depth of one hundred and twenty feet to an alley, bounded north by property, now or formerly of Harriet Pullis, and east by property now or formerly of Albert P. Hartman, and being all of lot sixteen, the east five feet of lot fifteen and the west five feet of lot seventeen, in block two of Armstrong’s subdivision of said city, on which real estate was erected the dwelling house known as No. 1821 La Salle street. The plaintiff, by reason of his previous, dealings with and the business standing of the defendant in the community, having confidence in the defendant’s honesty and ability, as soon as he had purchased the above-described house and lot, placed the same in the hands of the defendant, as his agent, for the purpose of renting, and, as soon as possible, of selling the same.

“That on or about the —--day of---, 1898, the defendant, while acting as the agent of plaintiff, rented the said house and lot to one Dr. Benjamin J. Tomlin as his residence, and at the time of said rental the defendant informed the plaintiff that said Tomlin was a prospective purchaser of the said house and lot, and that he, the defendant, felt quite certain that he would be able to sell said house and lot to the said Tomlin; that plaintiff thereupon fixed the price of five thousand dollars upon the said house and lot, and authorized, requested and directed the defendant, as the agent of plaintiff, to price said house and lot to said Tomlin and to endeavor to sell the same to him at said price and sum of five thousand dollars. The defendant afterwards informed plaintiff that said Tomlin was not as yet ready to purchase said house and lot, whereupon the plaintiff informed the defendant that he, the plaintiff, was very anxious to' sell the said house and lot to said Tomlin and authorized, requested and instructed the defendant, as the agent of the plaintiff, to sell the said house to the said Tomlin and to endeavor to sell the same to him at the price and sum of forty-five hundred dollars. That the defendant reported to the plaintiff that the’ said Tomlin was not yet ready to purchase said house and lot, and that hei, the defendant, could not sell the same to said Tomlin at said sum of forty-five hundred dollars. That the defendant, in violation of his duties and obligations as the confidential and trusted agent of the plaintiff, while well knowing that said Tomlin desired to purchase said lot and house, and well knowing that said Tomlin valued the same at and was willing to pay more than five thousand dollars for the same, for the purpose of deceiving plaintiff, and acquiring an advantage over him, through and by means of confidential relations which existed beteen them, failed to offer and' price said house and lot to said Tomlin at either said sum of five thousand dollars or at said sum of forty-five hundred dollars, and falsely reported to’ the plaintiff that he, the defendant, was unable to sell said house and lot to Tomlin, for either of said sums, and plaintiff, reposing entire trust and confidence in the defendant, believed and relied upon said false representations; that afterwards, and in the month of October, 1898, the defendant, knowing that the plaintiff was relying on said false representations, and that the plaintiff believed that said house and lot could not be by defendant sold to said Tomlin for said sum of forty-five hundred dollars, caused one Ellis Harris, who was then engaged in business as a real estate broker in said city of St. Louis, and who had desk-room in the office of the defendant, to call upon the plaintiff and to pretend to be the agent for the sale or exchange of a certain piece of real estate in the city of St. Louis, Missouri, described as the east ten feet of lot sixteen and all of lot seventeen in city block 4847 of said city of St. Louis, having a total frontage of sixty feet on the south line of Fairmount avenue, by a depth southwardly of one hundred and eighty-five feet, more or less, to an alley fifteen feet wide. That at this time, the title of record to said Fairmount avenue property stood in the name of Lewis H. James; that plaintiff alleges that in truth and fact the said Lewis H. James held the title to said Fairmount avenue property in secret trust for the defendant, which fact was then unknown to the plaintiff and that the defendant and the said Harris concealed said fact from the plaintiff. That said Harris, acting for and at the request of the defendant, offered the plaintiff to exchange said Fair-mount avenue property, subject to a deed of trust thereon, for the sum of fifteen hundred dollars, together with the sum of thirty-five hundred dollars in cash, for plaintiff’s said property on La Salle street; that in said exchange said Fairmount avenue property was by said Harris and the plaintiff valued at the sum of twenty-four hundred dollars, making the equity therein subject to said deed of trust worth nine hundred dollars, and making the total consideration to be paid for plaintiff’s said property the sum of forty-four hundred dollars; that plaintiff, relying upon the representations theretofore made to him by defendant, and not knowing that the defendant was the owner of or interested in said Fairmount avenue property, and not knowing that said Harris was acting at the request and instance of the defendant, and not knowing that the defendant had already made arrangements and contracted with the said Tomlin to- purchase the La Salle street house on or about October 18, 1899, agreed with said Harris to make said exchange, and accordingly, in pursuance with said agreement, and on or about the 20th day of October, 1999, accepted a deed of said, date from said Lewis H. James, conveying to plaintiff the said Fairmount avenue property, subject to a deed of trust for the sum of fifteen hundred dollars, and the sum of thirty-five hundred dollars, which sum of thirty-five hundred dollars was then unknown to plaintiff, paid by the defendant, and at the request of said Harris, who was acting at the instance and request of and for defendant, conveyed his, plaintiff’s said La Salle street property to one Augustus M. Wood, by deed also- of said date. That said Wood, although said La Salle street property was conveyed to him by plaintiff in fee, held the same in secret trust for the defendant, and that said Wood did not pay any portion of the consideration for said La Salle street property, but that the only consideration paid to plaintiff for said La Salle street property was the conveyance of said Fair-mount avenue property, valued as aforesaid, subject to said deed of trust for fifteen hundred dollars and said sum of thirty-five hundred dollars, all of which was paid by the defendant, although the. fact that the same was paid by the defendant was then unknown to the plaintiff. That the purpose, desire and intent of the defendant in causing- and procuring the plaintiff' to exchange his, plaintiff’s La Salle street property for said Fairmount avenue property was that the defendant might be able to sell plaintiff’s said La Salle street property to said Tomlin at a sum far in excess of said sum of forty-five hundred dollars, and by concealing this.the defendant’s connection with the matter to enable Mm to collect, receive and appropriate to Ms own use, without accounting for same to plaintiff, the difference between the amount received by plaintiff for the said La Salle street property, and the amount which he, the defendant, might be able to induce said Tomlin to pay for' same.

“That on the 20th day of November, 1899', the defendant in pursuance of his said plan and scheme to defraud the plaintiff,induced said-Tomlin to purchase said La Salle street property and to pay therefor the sum of five thousand, seven-hundred and fifty dollars, and caused and procured said Augustus M. Wood on said 20th day of November, 18991, to convey said- La Salle street property to said Dr. Tomlin, but that the consideration therefor was paid to and' received by the defendant. Wherefore, plaintiff says that the defendant has received and has the sum of tMrteen hundred and fifty dollars,- which in equity, and in good conscience and of right belongs to the plaintiff, and for which the defendant should account to the plaintiff. Plaintiff further states that he did not know, and the defendant concealed from him, the fact that said Wood held the title to said La Salle street property-in trust for the defendant. Wherefore, plaintiff prays judgment against the defendant for said sum of tMrteen hundred and fifty dollars, together with interest and cost of suit.”

Defendant’s answer was a general denial.

“Plaintiff and defendant had been intimate' for many years; defendant for about eig’ht years had been in the real estate business in St. Louis, and during that time had acted as agent of plaintiff, buying and selling property for him and negotiating loans for him, and enjoyed Ms full confidence. In September, 1898-, plaintiff acquired a house known as No. 1821 La Salle street in tbe city of St. Louis, and being desirous of its disposal placed it in charge of defendant for rent and sale and fixed the price at $5,500. In February, 1899', Epstein rented the house to B. F. Tomlin at $35.00 per month and so informed Van Raalte, and then told him that he was going to sell the house to the tenant. Plaintiff advised defendant of his impatience to sell the house and. instructed him to price it to Tomlin at $5,-000. In his anxiety to sell the house plaintiff frequently called upon defendant and inquired how matters were progressing, but was always informed that Tomlin was not yet ready to buy. At length plaintiff instructed defendant to price the house at $4,500', but was again informed that Tomlin was not ready to buy. In the efforts Epstein asserted he made to sell to Tomlin he concedes that he at m> time named a price or informed him of the reductions in price authorized by VanRaalte. In October, 1899, Ellis Harris, a real estate broker with headquarters in Epstein’s office, called upon Van Raalte and offered several pieces of property in exchange for the La Salle street house, including a lot on Fairmount avenue. Thereupon Van Raalte visited Epstein to> obtain the latter’s judgment upon the value of the properties offered by Harris. Epstein, who then resided on Fairmount avenue, claimed that at this interview he refused to fix a value on the Fairmount avenue property, assigning as a reason that he was prejudiced, as he owned an interest therein. Van Raalte declared that Epstein did not inform him that he was a co-owner of the Fairmount property, and charges that after executing the preliminary agreement with Harris, in seeking from one Levy, a former partner of Epstein, an estimate upon the Fairmount property, Levy referred him to Epstein as its owner, which statement of Levy, Epstein pronounced false, repeating to Van Raalte that one Lewis James owned the property; Epstein, denying any such later conversation, also asserted that at the above visit he replied to Van Raalte’s inquiry that James, in whose name the title to' the Fairmount lot actually appeared of record, was, in the parlance of real estate dealers, ‘ a straw man, ’ that is, a mere conduit or medium for convenience in holding and passing title. Whatever may be the truth in this regard, Van Raalte entered into a contract with Harris, the latter designating himself therein as agent, by which he agreed to exchange his La Salle street property for the Pairmount avenue lot, subject to a deed of trust for $1,500, and $3,500 in cash, the La Salle street lot being appraised for the purpose of the exchange at $4,400 and the equity in the Fairmount avenue lot at $1,100, Van Raalte, by the terms of the agreement, paying no commissions, and receiving Epstein’s check for $50.00 to bind the bargain.

‘ ‘ The legal title of record to the. Pairmount avenue lot stood in the name of Lewis James, a negro porter in the musical conservatory of which Epstein’s brother was co-proprietor. In consummation of the transaction, on October 23rd, Van Raalte conveyed his La Salle street house as requested to Augustus M. Wood, also a ‘ straw man, ’ for an expressed consideration of $6,500. Without Van Raalte’s knowledge Wood had executed to Theodore Hemmelmann, Jr., as trustee for W. H. Bush, a deed of trust for $3,500 on the La Salle street house, and the money thus procured was paid to Epstein and by him delivered to Van Raalte, together with a conveyance from Lewis James to Van Raalte on the Pairmount avenue property, subject to the existing deed of trust for $1,500. On November 20, 1890’, Epstein sold the La Salle street house to Tomlin for $5,-750. Epstein further testified that the Fairmount avenue lot was owned jointly by himself and Harris, with the right accorded the latter to purchase the whole at a fixed rate, and that he, Epstein, had accepted a half interest in the'La Salle street house in lieu of the like interest in the Pairmount avenue lot, and title to the La Salle street house was taken in the name of Wood for the joint benefit of himself and Harris and the difference between $5,750, the selling price to Tomlin!, and $3,500, the amount of the mortgage indebtedness, viz., $2,250, was received by Epstein in cash and notes secured by deed of trust and divided between himself and Harris. Except as heretofore stated Epstein at no time disclosed any of these facts to< Van Raalte. In his official capacity as notary, Epstein took the acknowledgments of all grantors in the conveyances employed both' in the transfers of title under the contract of exchange and the sale to Tomlin, necessitating the execution of a deed from Van Raalte and wife to Wood, a deed of trust from Wood by which the sum of $3,500' was secured, a deed from James to Van Raalte, a deed from Wood to Tomlin, ^and the acknowledgments of Tomlin and wife to the second deed of trust securing part of the purchase money of the La Salle street property.”

In the above statement we have availed ourselves of the very admirable summary of the testimony which appears in the opinion of Judge Rbyburn in the St. Louis Court of Appeals.

I. The proposition which the counsel for the defendant urges at great length is that the essential alle*gation in the plaintiff’s petition is that defendant ‘ ‘having then made arrangements with said Tomlin to purchase the same at a price and sum far in excess of said sum of $4,500, caused one Ellis Harris to call upon plaintiff and to pretend to be the agent for the sale or exchange of the Pairmount avenue property for plaintiff’s La Salle street property,” and “not knowing the defendant had already made arrangements and contracted with the said Tomlin to purchase said La Salle street house on or about October 18, 1899, agreed with said Harris to make said exchange. ’ ’ And that because this allegation in .the petition was not sustained by proof, there was no substantial evidence to support the plaintiff’s cause of action and the judgment should be reversed without a remanding. It is true that the petition does contain the said allegations, hut upon a careful consideration of the whole petition, in. our opinion it was not the basis of plaintiff’s right to recover, nor that those allegations were essential to plaintiff’s cause of action. Both of these statements in the petition may be eliminated therefrom and there will still remain allegations that plaintiff was the owner of the La Salle street house and that defendant became his agent for the sale of the said premises; that the defendant represented to plaintiff that he would be able to1 sell the house to Dr. Tomlin, and that thereupon plaintiff fixed the price of said house at $5,000, and directed the defendant to offer the same to Dr. Tomlin for that price; that defendant reported to plaintiff that Dr. Tomlin was not yet ready to purchase, and that thereupon plaintiff reduced the price to $4,500, and directed the defendant to offer the house to Tomlin at that price; that thereupon defendant again reported to plaintiff that Tomlin was not ready to buy, and he could not sell the-house to Tomlin for $4,500; that defendant in violation of his duty and obligation as agent failed to offer said house to Tomlin at either the sum of $5-,000' or $4,500, and falsely reported to plaintiff that he was unable to sell the house to Tomlin for either of the said sums; that afterwards in October, 1898, the defendant knowing that plaintiff was relying upon his representations that the house could not be sold to Tomlin for $4,500, and knowing plaintiff’s great desire to sell the house, caused one Ellis Harris, a real estate broker, with desk room in his office, to call upon plaintiff and pretend to be the agent for the sale or exchange of a lot on Fairmount avenue standing in the name of Lewis H. James; that unknown to plaintiff said James held the title to said lot in secret trust for the defendant, which fact the defendant concealed from plaintiff; that Harris acting for and at the request of defendant, offered to exchange said Fairmount avenue lot, subject to a deed of trust thereon for a sum of $1,500, together with $3,500 in cash, for plaintiff’s said property on La Salle street, maldng the total consideration to be paid for plaintiff’s said property the sum of $4,400; that plaintiff' relying upon the representations theretofore made to him by defendant and not knowing that defendant was the owner of or interested in said Fairmount avenue property, agreed with said Harris to make said exchange and in pursuance of said agreement on October 20,1899, accepted the deed from said James, conveying to plaintiff said Fairmount avenue lot, and the sum of $3,500, which sum then unknown to plaintiff, was paid by the defendant, and at the request of Harris, who was acting at the instance of defendant, the plaintiff conveyed his La Salle street property to one Augustus N. Wood by deed of that date; that said Wood paid no portion of the consideration for said property, but held the same in secret trust for the defendant and Harris; that the only consideration received for his property was the Fairmount avenue lot subject to the deed of trust and the sum of $3,500, all of which was paid by the defendant, but the fact that the same was paid by defendant was unknown to plaintiff; that the desire and the intent of the defendant in procuring plaintiff to exchange his La Salle street property for said Fairmount avenue lot was that the defendant might be able to sell the same to said Dr. Tomlin at a sum far in excess of $4,500; and by concealing his connection with the matter to enable him to appropriate without accounting to plaintiff the difference between the amount received by plaintiff and the sum which defendant might be able to induce said Tomlin to pay for the same; that on th'e' 20th of November, 1899, the defendant in pursuit of his scheme to defraud plaintiff, induced Tomlin to purchase the La Salle street property for the sum of $5,750, and procured said Wood on the same day to convey said property to said Tomlin, but that the consideration was paid to and received by the defendant; that plaintiff did not know, and defendant concealed from him the fact, that said Wood held the title of said La Salle street property in trust for the defendant. Wherefore, plaintiff says the defendant has received $1,350, which in equity and good conscience belongs to plaintiff, and plaintiff prays judgment against defendant for said sum with interest and cost.

So that, without the two allegations as to a prearrangement between defendant and Dr. Tomlin for the sale of the La Salle street lot, there remain ample averments in the petition charging the defendant with a breach of his duty to plaintiff in failing to exercise reasonable diligence to carry out his instructions from the plaintiff for the sale of the In Salle street property and then, by concealing the truth from the plaintiff as to defendant’s relation to theFairmount avenue property, manipulating a scheme whereby he acquired plaintiff’s La Salle street property at less than its real value. “The paramount and vital principle of all agencies is good faith, for without it the relation of principal and agent could not well exist. So sedulously is this principle guarded that all departures from it are esteemed frauds upon the confidence bestowed. An. agent therefore will not be allowed to put himself in a position antagonistic to his principal, or speculate in the subject of the agency.” [1 Am. and Eng. Ency. Law (2 Ed.), 1071.]

In Barthelmew v. Leech, 7 Watts 172, it was held that ah agent having charge of wild lands, could not become a purchaser thereof at a sale for taxes without a previous and explicit renunciation of his agency. In that case, C. J. Gibson observed: “The most open, ingenuous and disinterested dealing is required of a confidential agent while he consents to act as such; and there must be an unambiguous relinquishment of his agency before he can acquire an interest in the subject of it. To leave a doubt of his position in this respect is to turn himself into a trustee. It is unnecessary to recur to authority for a principle so familiar, and so accordant with common honesty. ’ ’

The doctrine that trustees, agents, administrators, guardians, attorneys or others whose connection with any person is such as to establish a confidential relation between them concerning his property or give them special knowledge or opportunities in regard to it, cannot without, and often with, his full knowledge and consent, become the purchaser of such property, is well settled in the jurisprudence of England and the United State, and is affirmatively established as the settled law of this State. [Thornton v. Irwin, 43 Mo. l. c. 163; Boardman v. Florez, 37 Mo. 562.]

In the leading case of Fox v. Mackreth, 2 Bro. C. C. 400, Lord Chancellor Thuklow said: “If a trustee, though strictly honest, buys an estate himself, and then sells it for more, according to the rules of a court of equity from general policy, and not from any peculiar imputation of fraud, he should not be permitted to sell to himself, but should remain a trustee for all intents and purposes.” In that case having sold the property at a higher advanced price he was decreed a trustee as to the sums produced at the second sale, for the original vendor. [Marshall v. Ferguson, 94 Mo. App. 175; Palmer v. Pirson, 24 N. Y. Supp. 333.] The gist of the action at law for such a fraud is the fraudulent producing of a false impression upon the mind of the principal by the agent, and if this result is accomplished, it ■ is unimportant whether the means of accomplishing it are words or acts of the defendant, or his concealment or suppression of material facts not equally within the knowledge or reach of the principal. [Stewart v. Wyoming Ranche Co., 128 U. S. l. c. 388.]

That the petition in this case stated a cause of action within the foregoing principles governing the relations of principal and agent without the two allegations in regard to prearrangement between the defendant and Dr. Tomlin, we have no doubt whatever, nor that the evidence was sufficient to justify the jury in finding the facts as stated in the petition, even though the plaintiff failed to prove the prearrangement between the defendant and Dr. Tomlin. It is a well-established rule of practice at common law that it is sufficient if the substance of the issue is proved, even though some of the subsidiary allegations are not established. Provided, of course, that defendant is not misled by the form, of the pleading.

This brings us to the contention of the defendant that the decision in the Court of Appeals was in conflict with Huston v. Tyler, 140 Mo. 252, and other similar cases of similar import, by this court. But an examination of Huston v. Tyler will show that in that case the petition counted upon a specific contract on the part of the defendant to procure a note signed by four persons, and it was held in that ease that plaintiff having declared upon an express contract or warranty as to the genuineness of certain signatures, he was thereby precluded from relying on an implied warranty to the same effect, and that the allegation as to the express warranty was not mere matter of inducement but constituted the gravamen of plaintiff’s action, and there being no proof of it, therefore, he was not entitled to recover in that case. In this case the allegation as to the prearrangement of defendant with Tomlin may be disregarded as surplusage and still a good and sufficient cause of action remains specifically alleged, which was not the case in Huston v. Tyler. "We find no conflict whatever in either of the decisions of the Court of Appeals in this case with what was said in Huston v. Tyler, or in any other of the authorities relied upon by the defendant. It must follow, therefore, that the 'contention of counsel that, because the plaintiff did not establish, the single allegation of the prearrangement with Dr. Tomlin, there was a total failure to prove the essential allegation of the petition, is not tenable. In this case the court did not permit the plaintiff to recover upon a cause of action not alleged, or upon a different and distinct cause of action, but upon a complete cause of action stated and upon proofs sustaining that cause.

II. It is next insisted that, there was no evidence tending to show that the defendant was the agent of the plaintiff at the time of the sale to Harris. Without recapitulating the testimony upon this point, it must suffice to say that in our opinion there was abundant evidence that the defendant had become, the agent of plaintiff for the sale of his La Salle street property in February, 1899, and that such agency continued and had not been terminated by the plaintiff up to the date of the consummation of the trade; and that there had never been an unambiguous. relinquishment of his agency by the defendant with that full and candid disclosure of defendant’s relation to the Fairmount avenue property, which through “straw men” he was unloading on plaintiff in exchange for plaintiff’s lot. Nor does it change the rights of the plaintiff that there was some evidence tending to prove that plaintiff was acting .in his own behalf in the trade with Harris when all the evidence of concealment of defendant’s connection and ownership of the Fairmout avenue property is taken into consideration, and of Harris’s relation to the defendant. These were questions of fact for the jury under the instructions of the court.

III. It was urged in the Court of Appeals and the insistence is renewed in this court that the facts stated made this a suit in equity, triable before a chancellor alone, and the plaintiff was, not entitled to a jury and that the court erred in submitting the cause to a jury. By section 691, Revised Statutes 1899, it is provided: “An issue of fact in an action for the recovery of money only, or of specific real or personal property, must be tried by a jury, unless a jury trial be waived or a reference ordered as hereinafter provided.” The petition in this case prays for a money judgment only; no other relief was asked or was possible. The La Salle street house had been sold to an innocent purchaser, and the petition demanded the amount of money which the plaintiff had lost by the fraudulent acts of the defendant. The fraud alleged was an active one.

It has been often stated by the courts of this country that in cases arising out of fraud, the courts of law and equity have concurrent jurisdiction. Courts of equity by reason of their more extensive powers may and frequently do adjudicate matters of fraud, which courts of law are incompetent to try, and to that extent, at least, may be said to exercise an exclusive jurisdiction, but the jurisdiction of courts of law to grant relief by way of damages growing out of fraudulent transactions, is a very ancient one, and where full and adequate relief may be administered in a court of law on account of fraud, the injured party may bring his action in a court of law. This has been the rule in this State since the case of West v.Wayne, 3 Mo. 16; McFarland v. Railroad, 125 Mo. 253. In this case as tho defendant had by his own action caused plaintiff’s lot to be conveyed to an innocent purchaser for value and without notice, plaintiff was not in a position to ask for a rescission of the contract, or to set aside the sale, and could only be compensated by a money judgment for the amount of the injury he had suffered by the alleged fraudulent acts of the defendant, and under the plain command of the statute the cause was triable by a jury.

IV. It is also contended that the damages allowed by the jury are grossly excessive; that the defendant, if liable at all, is only responsible for that portion of the profits realized on the sale of plaintiff’s lot, which he received, and should be exempt from any charge for the half paid by him to his associate Harris, and that he should have been allowed for a number of expenses he incurred in making the sale to Dr. Tomlin, such as commissions paid to Aiple and Hemmelmann, who made the sale. As to the commissions, it is settled law in this State that an agent who has been guilty of fraud in the transaction of his principal’s business, forfeits his right to commissions as such. As said by the Court of Appeals in its first opinion in this case: “When because of such conduct he is called upon to make good the loss, which his principal sustains, he cannot recoup that loss in such circumstances as appear here by claiming the commissions which would have accrued to him by faithful conduct.” As to the other proposition, that the defendant was chargeable only for the half of the profits which he and Harris received on the sale to Dr. Tomlin, we think it is clear that he was responsible to plaintiff for the loss or damage which the plaintiff suffered by his fraudulent and unfaithful conduct in the transaction of the business. He stood in a relation of trust and confidence to the plaintiff1 and he was liable to the plaintiff for the damage which plaintiff sustained by his fraudulent conduct, and it is immaterial what disposition he made of the profits if plaintiff did not reap them.' [Davis v. Hoffman, 167 Mo. 573.]

V. Finally, it is asserted that the instructions were inconsistent and erroneous. This assignment harks back to the original contention that the cause of action alleged was not proved. As we have already disposed of that insistence, it is unnecessary to say more on that subject. As to the objection that the instructions fix an improper measure of damages, we find no error in them on that account, as plaintiff was entitled to recover the amount of damages which he suffered without any deduction for commissions to defendant. As to* the further complaint that the instructions assumed as true facts which were in dispute, the instructions are not obnoxious to that criticism. It was left to the jury to find from the evidence the facts upon which their verdict was based'.

Upon a careful review and examination of all the grounds alleged for the reversal of this cause, we find no reversible error and the judgment of the circuit court is affirmed.

Burgess, P. J., and Fox, J., concur.


source: Caselaw Access Project

author: FOX, P. J.

license: Public Domain

text:
    THE STATE v. EDWARD J. KEATING, Appellant.
    Division Two,
    March 19, 1907.
    1. INFORMATION: Statutory Charges. The allegations in an information based upon a statute, in order to properly charge the crime created by the statute, must be such as to specifically bring the defendant within all the material words of the statute. In all indictments and informations for felonies nothing can be left to intendment or implication.
    2. —--: Election: Registration: Election Precinct. An information which does not contain the essential allegation that the defendant fraudulently registered or offered to register in an election precinct, not having a lawful right to register therein, is fatally defective in a prosecution for fraudulent registration. And if the most that can be said is that it might be implied from the allegations that a certain named precinct was an election precinct, the information is bad.
    3. -: -: -: What Is? The information must allege acts which amount to a registration. It is not sufficient that it simply state that defendant fraudulently registered in an election precinct, not having a lawful right to register therein. Since section 11 of the Laws of 1903, p. 177, sets forth with particularity all the necessary acts to be. done in order to constitute a registration, the information should with sufficient particularity allege such acts as would constitute a registration within the meaning of that section.

      4. ELECTION: Fraudulent Registration: Evidence. Where a witness testifies that he knows that defendant lived at a certain number in another precinct, and in answer to a question as to whether or not his knowledge is based on hearsay, says, “I have known him to live there, I have seen him coming in and out of there during the day and night, I knew the rest of the family, but I have not seen where he sleeps,” the evidence is sufficient to convict defendant of registering in a precinct other than that of his residence, within the meaning of “residence,” as defined by section 4160, R. S. 1899.
    5. '-: Registration Act: Constitutional. The act providing for the registration of voters in cities of three hundred thousand and over, and prescribing punishments for fraudulent registration, is not unconstitutional, as being class legislation, or as having a defective title.
    Appeal from St. Louis City Circuit Court . — Eon. Jas. E. Withrow, Judge.
    Reversed and remanded.

      Bass & Brock for appellant.
    (1) Appellant’s motion to quash, the information should have been sustained because the information is defective as to the second count, in that it attempts to charge two separate and distinct statutory offenses in one and the same count. Sate v. Blaldey, 184 Mo. 187; State v. Dale, 141 Mo. 284; State v. Huffman, 136 Mo. 58. (2) The second count is bad for the following reasons : It fails to charge and allege that the ninth precinct of the second ward was an “election” precinct; it fails to charge and aver that the defendant “personally” applied for registration; or that he was 1 ‘ sworn” or that he “affirmed” before one of the judges to answer questions; or that he applied for registration in person before the “precinct board of registration,” and does not charge or aver that the defendant signed his name in the “original” book of registry; nor does it charge or aver that defendant had no “lawful” right to register in said precinct. United States v. McCabe, 58 Fed. 557; United States v. Bleven, 46 Fed. 381; United States v. Cruinkshank, 92 U. S. 542; State v. Meysenberg, 171 Mo. 1; State v. Etchman, 184 Mo. 193; State v. Hagan, 164 Mo. 654; State v. Burke-, 151 Mo. 136; State v. Kyle, 177 Mo. 659; State v. Krueger, 134 Mo. 308; United States v. Hirshfield, 13 Blatch. 330; Blitz v. U. S., 153 U. S. 308; State v. Miller, 132 Mo. 297. (3) There was no evidence whatever to support the allegation in the second count that the defendant did not reside at No. 3127 North Twelfth street. The evidence on the part of the State was insufficient to sustain the second count of the information and did not overcoine the presumption of innocence. State v. Hardelein, 169 Mo. 579; State v. Shelley, 166 Mo. 619; State v. O’Brien, 168 Mo. 404; State v. Nolan, 168 Mo. 446. (4) Section 2120 of the act approved March 24, 1903, upon which the information in this, case is- in part bottomed, is unconstitutional and void because it is in contravention of section 28 of article 4 of the Constitution of this State, in that the subject thereof is not clearly expressed in its title. Also- the act of March 28, 1903. (5) Said act and section and also the act of March 28, 1903, upon which the said; information is in part bottomed, are unconstitutional and void, because they are in contravention of section 53, article 4 of our Constitution, in that said acts, or at least the last-mentioned act, is a special law applying only to the city of St. Louis and is not a general law, though a general law can be made applicable. State v. Anslinger, 171 Mo. 600.

      Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The information, which was accompanied by the affidavit of the circuit attorney, is sufficient in form and substance; it follows the language of the statute, and fully informs the defendant of the offense charged. Laws 1903, pp. 171 and 172. (2) The statute upon which tins prosecution is bottomed is constitutional. True, said statute is intended to apply to- cities having a population of three hundred thousand and over, and there is at present only one city in this State that has such population, but said facts do not make the statute local or special for either one or both of said reasons. The statute was enacted and made applicable to' St. Louis and any other city having such a population, and any other city that may in the future acquire such a population. Such statutes have been held to be general statutes. State ex rel. v. Higgins, 125 Mo. 364; State ex rel. v. County Court, 128- Mo. 427. (3) There was sufficient evidence to- show that defendant was guilty of registering in a precinct where he did not reside, which was the offense charged in the second count of the information, the count upon which defendant was convicted. If the jury believed the- State’s evidence, then defendant was clearly guilty of registering in a precinct where he did not reside-. That the jury did believe the State’s evidence is affirmed by their verdict, and it would have been difficult for the jury to have done otherwise-, especially as the defendant did not testify and did not offer any evidence to contradict the State’s prima facie case. There was, therefore, substantia] evidence tending to prove that defendant was guilty; and, when this is true, this court has often said that it would not interfere, but would defer to the jury and the action of the trial court. State v. Smith, 190- Mo. 706; State v. Payne, 194 Mo. 442; State v. Groves, 194 Mo-. 452; State v. Williams, 186 Mo. 128; State v. Williams, 149 Mo-. 496; State v. Swisher, 186 Mo. 8.
   FOX, P. J.

This cause is now pending before this court upon appeal by the defendant from a judgment of the circuit court of the city of St. Louis, convicting him of fraudulently registering in an election precinct in which he had no lawful right to register.

On the 19th day of September, 1905', the circuit attorney of the city of St. Louis filed an information in two counts, duly verified, charging the defendant with a violation of the provisions of an act of the General Assembly, approved March 24, 1903, defining offenses in connection with elections and prescribing the penalties .therefor. The defendant being convicted upon the second count, we have in this proceeding only to deal with the charge preferred in that count. The sufficiency of the count upon which the defendant was convicted, is challenged; therefore, it is well to here reproduce it. Omitting formal parts, it was as follows :

“And said Arthur N. Sager, Circuit Attorney, within and for the city of St. Louis (said city comprising the eighth judicial circuit of the State of Missouri), as aforesaid, now here in court, on behalf of the State of Missouri, further information makes, that in the city, of St. Louis, on the nineteenth, twentieth, twenty-first and twenty-second days of September, one thousand, nine hundred and four, a general registration of voters, under the laws of the State of Missouri, was held in the said city of St. Louis, and in every ward and precinct of said city of St. Louis (said city of St. Louis being then and there a city having more than three hundred thousand inhabitants), and in the ninth -precinct of the second ward of said city of St. Louis and by and before the duly appointed and acting judges, clerks and officers of registration of said precinct and ward; and that Edward J. Keating on said nineteenth day of September, one thousand, nine hundred and four, at the said city of St. Louis, in the said ninth precinct of the second ward, before the said duly appointed, qualified and acting judges and clerks of registration of said precinct, unlawfully, feloniously, knowingly, and fraudulently did register as a qualified voter of said precinct and then and there give to the said judges and clerks of election of said precinct, who were then and there acting as officers of registration, his name as Edward J. Keating and his residence as No. 3127 North Twelfth street in said precinct, and then and there requested said officers of registration to then and there write the name of him, the said Edward J. Keating, upon the registers, poll-books and books of registration of said precinct and to enter the residence of him, the said Edward J. Keating, upon said books, as No-. 3127 North Twelfth street in said precinet as a qualified voter of said precinct, having the right to register and vote in said precinct, and the said judges and clerks of registration of said' precinct aforesaid then and there did enter upon the registers, poll-books and books of registration of said precinct the name of the said Edward J. Keating as residing at said No. 3127 North Twelfth street, and as being a qualified voter having the right to register and vote in said precinct, and he, the said Edward J. Keating, then and there feloniously, wilfully, knowingly, unlawfully and fraudulently did write his name upon the said registers, poll-books and books of registration of said precinct as a qualified voter having the right to register and vote in said precinct by then and there writing the signature and name E. J. Keating upon said books in the margin provided for the signatures of qualified voters when registering; whereas in truth and in fact the said Edward J. Keating then and there did not reside at No. 3127 North Twelfth street, nor in said precinct, and had no right to register in said precinct, as he the said Edward J. Keating then and there well knew; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.”

To this information there was a plea of not guilty, and the trial proceeded. There were three witnesses introduced on the part of the State. The secretary of the board of election commissioners, who was the custodian of the registry books and records, identified certain registry books, and they were introduced in evidence, which tended to show that the defendant was registered in the ninth precinct of the second ward of the said city of St. Louis. There were two- other witnesses who testified as to the acts and conduct of the defendant as well as the registering officers at the time of such registration. The testimony tending to show that defendant did not live in the ninth precinct of the second ward and at the place as is charged in the indictment he designated to the registering officers, consisted mainly of the testimony of Charles W. Woodcock, who testified for the State, who substantially stated that he knew the defendant lived somewhere in the 800 block in the fourth precinct of the second ward. Upon cross-examination he stated: “Q. You have said that you knew that the defendant lived somewhere in the 800 block. Your knowledge in that connection is in the nature of hearsay, is it not? A. No; I have known him to live there. I have seen him coming in and out of there during the day and night. I knew the rest of the family. Q. That is what you base it on, that his mother and sister and some of his relatives lived in that immediate neighborhood? Now as to exactly where he lived you can’t say he lived there or did not live somewhere else? A. I have not seen where he sleeps.”

This is sufficient to indicate the nature and character of the testimony upon which this cause was submitted to the jury. At the close of the testimony the court instructed the jury and the cause being submitted to them they returned a verdict finding the defendant guilty as he was charged in the second count of the information and assessed his punishment at imprisonment in the penitentiary for a term of three years. Timely motions for new trial and in arrest of judgment were duly filed and by the court overruled. Sentence and judgment were entered in conformity to the verdict and from this judgment the defendant prosecuted this appeal, and the record is now before us for review.

OPINION.

The second count of the information upon which the judgment in this cause rests, is predicated upon one of the subdivisions of the amendatory act of 1903, Laws 1903, page 156. The subdivision of section 2120j of said amendatory act as above indicated, upon which the second count of this information is based, provides that “any person who shall fraudulently register or attempt or offer to* register in any election precinct, not having a lawful right to register therein, . . . shall, upon conviction thereof, be adjudged guilty of a felony and shall be punished by imprisonment in the penitentiary for not less than two years nor more than five years.”

I.

The appellant challenges the sufficiency of the second count of the information upon which he was convicted, and this is the first and most vital proposition confronting us in this proceeding; therefore, it is well to first determine whether or not there is a sufficient charge which will support the judgment.

It is fundamental that in order to mate an information or indictment based upon a statute properly charge the crime created by the statute, the allegations in the information must be such as to specifically bring the defendant within all the material words of the statute, for it is the inflexible rule in criminal pleading that in all indictments or informations for felonies nothing can be left to intendment or implication. [State v. Furgerson, 152 Mo. 92; State v. Hagan, 164 Mo l. c. 658, and authorities cited; Whart. Crim. Plead, and Prac. (9 Ed.), sec. 220; State v. Sekrit, 130 Mo, 401; State v. Hayward, 83 Mo. 299, and cases therein cited; State v. Miller, 132 Mo, 297.]

Measured by the rules as above announced it is manifest that the second count of the information in this cause fails to allege the offense of which the defendant was convicted in the language of the statute creating it, or in terms of equivalent import. We have carefully analyzed the second count of the information upon which the judgment in this cause is based and there is an entire absence of the essential allegation that the defendant fraudulently registered or attempted or offered to register in any election precinct, not having a lawful right to register therein. The most that can be said of this charge in the information is that from the language employed it might be implied that the ninth precinct of the second ward in the city of St. Louis was an election precinct, but that is what the authorities heretofore cited expressly condemn. The offense attempted to be charged is a felony and nothing can be left to intendment or implication; therefore, it must be held that the information is insufficient.

II.

It is insisted by appellant that this information is otherwise defective and insufficient for the reason that it fails to- charge all the essential elements of the offense which is created by the subdivision heretofore referred to, section 2120j, in this, that it fails to designate the acts done by the defendant in and about his registration which resulted in a fraudulent registration of him by the registry board. In other words, it is insisted that, in order to constitute a valid charge of the offense of which defendant is convicted, it is first essential to allege such a state of facts as shows that he was in fact registered, and. this must he followed by a charge, in the language of the statute, that the defendant fraudulently registered in an election precinct not having a lawful right to register therein. It is sufficient to say upon this proposition that section 2120j of the act of March 24, 1903, heretofore referred to, does not undertake to set forth in detail all the constituent elements of the offenses therein enumerated, but in effect declares that the doing of certain acts in a particular way is a violation of the law regulating the registration of voters, as provided in a companion act of the Legislature of March 28, 1903, Laws 1903, page 171. Therefore, in our opinion, to constitute a valid charge of the offense of which defendant was convicted, we must look to the provisions of the law regulating the registration of voters, and allege the doing of all necessary acts in the provisions of that law to constitute registration, and this followed, in. the language of the statute, that the defendant fraudulently registered in an election precinct not having a lawful right to register therein, would constitute a valid charge of the offense created by the statute. In other words, it is essential first that the information allege the acts done in and about such registration which, in effect, would amount to a registration of the defendant by the registration board in that precinct. There must first be a registration before it can be alleged that it was fraudulent. The law upon this subject is nowhere more clearly stated than in United States v. McCabe, Magee, Leach and Mace, 58 Fed. 557. In those oases the defendants were indicted under the provisions of section 5512 of the Revised Statutes of the United States, which made it an offense to fraudulently register. The fraudulent registration in those cases had reference to a violation of the laws regulating the registration of voters in the State of New York. The indictment simply charged the defendants in the language of the United States statutes, that they had fraudulently registered in certain election precincts in the State of New York. Demurrers were interposed to the indictments and the Federal Court, by Benedict, J., thus treated the question involved in the demurrers. He said; “These cases come before the court upon demurrers to indictments found under section 5512, Rev. St. U. S. The indictments are alike, and, in my opinion, are all defective, in that the only, act charged upon the defendant is that he ‘fraudulently registered. ’ These are the words of section 5512, Rev. St. U. S., but in my opinion they are not sufficient to describe the offense. In order to effect the registration of a voter in the city of New York, acts must be done both by the voter and the inspectors of election. The voter is required to make formal application for registration, and to answer under oath questions thereupon put to him by the inspectors. The inspectors are required, thereupon, to' adjudge whether the applicant is lawfully a voter in that district, and, if so, to declare their judgment by an entry on the book of registration. Strictly speaking, therefore, the voter cannot ‘register.’ All that he can do to effect his registration is to apply to be registered, and to answer questions propounded by the inspectors. It is therefore necessary, in my opinion, for an indictment under section 5512 to designate acts done by the accused in and about his registration, which resulted in a fraudulent registration of him by the inspectors. For lack of this particularity, the indictments in question are, in my opinion, bad.” In our opinion the learned judge in that case correctly stated the law, and it is sufficient to say that should the representative of the State desire to file an amended information, section 11. of the Laws of 1903, page 177, sets forth with particularity all the necessary acts to be done in order to constitute a registration and such amended information should with sufficient particularity allege such acts as would constitute a registration-in accordance with the provisions of that section. While it may be said that the information in this cause as to the registration does substantially allege the essential acts, necessary to constitute a registration, yet we simply suggest that section 11, heretofore referred to, should be kept in view, and there should be no lack of particularity in alleging the acts as provided by said section.

ni.

It is earnestly contended by learned counsel for appellant that the evidence as disclosed by the record is insufficient to establish the fact that defendant did not reside in the ninth precinct of the second ward of the city of St. Louis, where it is charged- he registered. This question necessitates a brief reference to the testimony of witness Woodcock. This witness in answer to the question as to whether his knowledge as to where the defendant lived was not in the nature of hearsay, answered in the negative and said: “I have known him to live there; I have seen him coming in and out of there during the day and night; I knew the rest of the family.” We will say upon this proposition that while it is true that it does not appear as to whether the defendant was a man of family or was a single man, and there is no positive testimony that he actually lodged at the place designated by the witness Woodcock, yet in our opinion, the testimony of this witness was sufficient, in the absence of any showing' to. the contrary, to authorize the legitimate inference that the defendant lodged at that place. Section 4160, Revised Statutes 1899, thus defines residence: “The place where the family of any person shall permanently reside in this State, and the place where any person having no family shall generally lodgei, shall be deemed the place of residence of such person or persons respectively.”

Upon the retrial of this canse the court should define residence as defined by the statute, to the end that the jury may intelligently apply the testimony to the definition of that term.

IV.

It is finally contended that the- act of the Legislature upon which this information is predicated, is unconstitutional and void. In our opinion there is no merit in this insistence. The title of the act is to amend article 6 of chapter 15, Revised Statutes of Missouri of 1899, by adding thereto sixteen new sections (and the sections are designated) and to define offenses in connection with elections and prescribing penalties therefor. The title of the act clearly embraces the subject-matter of which it treats and the provisions of the act are germane to the subject. As to the objection that the law regulating registration has application only to certain cities and is not applicable to the entire State, it is sufficient to say that this is not class legislation. It embraces all cities of three hundred thousand or more, and then points out the method to be followed in respect to the registration, of voters. Propositions similar to this have frequently had the attention of this court, and it has uniformly been held that it was not violative of sections 53 and 54 of the Constitution of this State, which prohibits the enactment of local or special laws.

For the reasons as herein pointed out the judgment of the trial court should be reversed, and it is so ordered, and to the end that the circuit attorney may have an opportunity of filing an amended information and retrying this cause, it is ordered that it be remanded.

All concur.


text:
    THE STATE v. WILLIAM S. STARK, Appellant.
    Division Two,
    March 19, 1907.
    1. INFORMATION: Uttering Forged Deed. The information in this case, charging the defendant with having in his possession a certain false, counterfeited and forged, instrument of writing purporting to be a deed, and with uttering the same, is sufficient, under section 2012, Revised Statutes 1899.
    2. UTTERING FORGED DEED: Evidence: Limited Education. The defendant was charged with having in his possession a forged and counterfeited deed, knowing the same to be forged, with the intent of injuring or defrauding by uttering and passing the same as true. Held, that it is not essential to his conviction under the charge that he should have actually forged the said deed or have personally fixed the name of the owner of the land thereto. So that, proof that he was a man of limited education and could only write his name falls far short of disproving the charge, for he was not charged with forging the deed.
    ■3. -: Verdict: Sufficiency. Where there is but a single charge in the indictment the verdict reading, "We the jury find the defendant guilty and assess his punishment at imprisonment in the penitentiary for a term of two years,” is sufficient.
    4. -: Venue. Where defendant is charged with having in his possession a forged instrument and uttering the same with intent to injure and defraud, the venue is established by showing he had the deed in his possession in the county where the information was filed with the intent then and there knowingly to utter the same in said county.
    5. -: Comparative Handwriting. A note and chattel mortgage executed by defendant are admissible in evidence for the purpose of comparing the handwriting thereon with the signature to the forged deed which he is charged with having uttered.
    6. EXAMINATION OF DEFENDANT: No Exception. Where no objection was made at the trial that the prosecuting attorney was permitted to examine defendant on matters not embraced in his examination in chief, and no exceptions were saved to such examination, that assignment of error is not before the appellate court for review.
    7. UTTERING FORGED DEED: Other is competent to permit the State to show that about the time of the commission.'of the crime charged of uttering a forged deed defendant had in his possession another forged deed from the same owner embracing the same land/ And it is also competent under such a charge to permit the’ State to show that the signature of defendant’s grantor and the signature of the grantor to defendant’s grantor were both forgeries. Such evidence in each-case is admissible to establish the fraudulent intent, notwithstanding it may also tend to prove defendant guilty of another distinct crime.
    Appeal from Miller Circuit Court. — Row. Wm. R. Martin, Judge.
    Affirmed.

      Hazell & Lay for appellant.
    (1) The verdict does not find defendant guilty as charged in the information. The verdict does not set forth the elements of any crime. It says, “We, the jury, find -defendant guilty and assess his punishment,” etc. Guilty of what? Must the information and testimony he read to determine? The verdict should be sufficiently definite to show of what offense defendant is found guilty. State v. Pierce, 136 Mo. 134; State v. Crowin, 189 Mo. 663; State v. Step-toe, 1 Mo. App. 19; State v. Pollock, 105 Mo-. App-. 273; State v. Rowe, 142 Mo. 439; State v. DeWitt, 186 Mo. 61; Graham and Waterman on New Trial, p. 1378. The reasonable rule to be deduced from these authorities, considering the technicalities which should lodge about the liberty of the citizen, is that something should appear in the verdict designating the offense. The verdict should be in itself, if pleaded, a bar to further prosecution. State v. McGee, 181 Mo. 312; State v. Williams, 191 Mo. 205; State v. Miller, 190 Mo. 449'. (2) The venue was not shown with that clearness required by the law. The evidence does not show that defendant uttered the deed from Brown to Wait, as charged in the information in Miller county. (3) Graham’s testimony as to an alleged note of defendant and chattel mortgage which he, the said Graham, owned at the time of the trial, was clearly inadmissible. This note was not a note wherein Graham was payee, but was one endorsed to Graham by a third party, one Austin. Graham testified that he was not present when the note was given; that he had no business dealings with defendant for twenty years. The defendant did not admit the execution of either the note or chattel mortgage and the admission of both was clearly .prejudicial error. The best evidence would be that of Austin, the original payee. Like a great many other witnesses, whose testimony would have been the best evidence, no1 reason was assigned for Austin’s absence. (4) The court erred in allowing defendant to be cross-examined on matters concerning which he was not asked on his examination in chief. Special counsel for the prosecution was allowed to ask him if he did not mail deeds at Tipton, and if he had not stated he had been in Independence. Defendant was not interrogated on either of these matters in his direct examination and his cross-examination on these matters constitutes reversible error. (5) In order to render signatures competent as a standard of comparison on an issue as to' the genuineness of a signature, it is necessary that the genuineness of the signature offered as a standard be conceded by both parties. Doud v. Reid, 53 Mo. App. 553; McCombs v. Poster, 62 Mo. App. 303; State v. Thompson, 132 Mo. 301. (6) The demurrer offered at the close of the State’s case should have been.sustained. Eliminating all that evidence which appellant believes to have been improperly admitted, there was no case made against the defendant. This court, in a very late case (State v. Gordon, 199 Mo. 561), has laid down the rule that, where there is no substantial evidence of the defendant’s guilt and the evidence can be so reconciled as to show his innocence equally with his guilt, the case should be taken from the jury. (7) Defendant clearly established the fact that he could not have been present at Independence on the day the deed from Brown to Wait was executed and acknowledged. This was shown by an abundance of undisputed hnd unimpeached testimony, and the court failed to instruct upon this phase of the case. The presence of defendant at the necessary time and place must be shown as essential to the commission of a crime. State v. Woolard, 111 Mo. 248. On the question of alibi, generally, see: State v. Howell, 100 Mo. 628; State v. Harvey, 131 Mo. 339; State v. Tetlow, 136 Mo. 678.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The information, which was duly verified by the affidavit of the prosecuting attorney, is sufficient in form and substance. R. S. 1899', sec. 2012; State v. Hathhom, 166 Mo-. 234; State v. Turner, 148 Mo. 206. (2) (k) The rule of law has long been established in Missouri that, upon an indictment for forgery, evidence is admissible tending to show that the defendant has been guilty of other forgeries than the one charged, committed about the same time. This, the courts hold, is proper in order to establish the fraudulent intent on the part of the defendant. Hence, no error was committed in permitting the State to prove that, about the time of the commission of the act charged, defendant forged and had in his possession another forged deed, which deed purported to convey title to the same land; and was a necessary link in the perpetration of the fraud attempted and consummated by the defendant on John and Prank Vernon. State v. Minton, 166 Mo. 613; State v. Myers, 82 Mo. 558; Underhill on Crim. Evid., sec. 423; 1 Wigmore on Evidence, sec. 312; 4 Elliott on Evidence, see. 2990; 3 Greenl. on Evidence, sec. 111. (b.) No error was committed by tbe trial court in admitting evidence tending to prove that the •defendant forged the signature to the deed from Brown to Wait, and also forged the signature to the deed from Wait to defendant. Although said evidence tended to show that defendant was guilty of other and distinct offenses than the one charged, yet it was admissible in this case. State v. Kavanaugh, 133 Mo. 462. (3) Neither was error committed by tbe trial court in admitting in evidence the chattel mortgage and note for the purpose of comparison with the signatures to> the alleged forged deeds, and then in permitting expert witnesses to testify that, in their opinion, defendant signed all of said documents. Defendant’s signature to' the note and chattel mortgage was “proved, to the satisfaction of the judge, to be genuine,” as required by the statute. R. S. 1899, sec. 4679; State v. Thompson, 141 Mo. 416; Bank v. Hoffman, 74 Mo. App. 203. The evidence of the contradictory statements made by defendant to the various witnesses was not only admissible, but was of value in determining whether or not defendant knew that the deeds were forged. State v. Ferguson, 172 Mo. 678; 4 Elliott on Evidence, sec. 2723; State v: Benner, 64 Me. 289; Hinshaw v. State, 147 Ind. 362; Walker v. State, 49 Ala. 400; People v. Arnold, 43 Mich. 305; State v. Dickson, 78 Mo. 448 (4) There was not only substantial evidence of defendant’s guilt, but the evidence was ample on that subject. While Mr. Sommerhauer would not swear positively that defendant was the- man, yet he did state that it was his opinion that he was the man, and that he believed him to be the man, which is sufficient in law. State v.’'Howard, 118 Mo. 141; State v. Cushenberry, 157 Mo. 179; State v. Barrington, 95 S. W. 264. True, defendant denied the execution of the forged deeds and he also denied that he knew that they had been forged; but no one can read this record and be impressed with the innocence or good faith of defendant. Hodge v. Hubb, 94 Mo. 503; Baldwin v. Whit-comb, 71 Mo. 651. While defendant and several members of his family testified to an alibi, yet the jury had a right to convict him in spite of said evidence. State v. Smith, 190 Mo. 704; State v. Harvey, 147 Mo. 69.
   GANTT, J.

This prosecution was commenced on the 23rd of February, 1904, by information filed by the prosecuting attorney of Miller county, duly verified, wherein it is charged that the defendant on or about the 14th day of October, 1903, at the county of Miller, knowingly, unlawfully and feloniously had in his custody and possession a certain false, counterfeited and forged instrument of writing purporting to be a deed of conveyance of real estate situated in Miller county, Missouri, and described as the east half of the northeast quarter of the southwest quarter of the northeast quarter, all in section twelve, township forty-one of range fifteen, from W. F. Brown to W. J. Wait, and purporting to be made by the said W. P. Brown and to be his free act and deed and which said false, counterfeited and forged written instrument, to-wit, a deed from the said W. P. Brown to the said W. J. Wait for the land aforesaid, was in said information fully set forth according to the tenor thereof, and with a certificate of acknowledgment attached thereto, which purported to have been taken before and by one J. N. Craig, a notary public, at his office in Independence, on the 27th day of August, 1903, and was filed for record on the 14th day of September, 1903, in the office of the recorder of deeds of Miller county. The information then proceeded to charge further that “said deed and instrument of writing so purporting to be the act and ' deed of the said W.- F. Brown purported and pretended to convey the land aforesaid to the said W. J. Wait, he the said W. P. Brown being then and there the owner of the land aforesaid, and by which said false and forged instrument and deed so as aforesaid made and forged, the said real estate purported to be transferred from the said W. F. Brown to the said W. J. Wait and the title to the said land to be thereby affected, transferred and conveyed as in said deed specified and set out, and the said William S. Stark did then and there on the day and year aforesaid at the county and State aforesaid, unlawfully, knowingly and feloniously have the said falsely made, forged and counterfeited instrument of writing and deed hereinbefore set out and described, in his possession, then and there well knowing the same to be forged, counterfeited and falsely made, with the intent then and there and thereby to unlawfully and feloniously injure and defraud by then and there unlawfully and feloniously uttering and passing the same as true, and against the peace and dignity of the State.”

The defendant was put upon his trial at the September term, 1904, and was convicted, but was granted a new trial. Afterwards at the March term, 1905-, the defendant was again put upon trial and was again convicted and his punishment assessed at two years, in the penitentiary; from that judgment he has prosecuted this appeal.

The testimony tended to prove without any contradiction that the land described in the information was the property of W. F. Brown of Kansas City, and that he had never signed any deed to any person for said property. A short time before the date of the forged deed, the defendant visited L. M. Musser, a lawyer and abstractor at Tuscumbia, and requested Musser to ascertain the name of the last record owner of this real estate. Mr. Musser examined his. abstract books and told the defendant that W. F. Brown was the last owner. The defendant then desired to know where Brown lived. Musser was unable to tell him his residence, but told him he could ascertain by examining the deed in the recorder’s office, and gave him the hook and page in which said deed was recorded. Shortly after this, the defendant stated to Mr. Marshall, the cashier of the bank in Tnscnmbia, that he had bought this real estate from a man by the name of Wait, and he needed a small sum of money to finish paying for the same, and that he had instructed Wait to mail the deeds directly to the bank. Marshall already had a chattel mortgage on some of defendant’s live stock, and defendant agreed to give the deed of trust on this real estate after he got his deeds and include both loans in one. In a few days, Marshall received an envelope containing the deed from W. F. Brown to W. J. Wait, and a deed from Wait to the defendant; both deeds purporting to convey the land in question. On the Sunday following, the defendant, who lives several miles west of Tuseumbia, came to that town and learned' from Marshall that he had received both deeds, andi he thereupon requested Marshall to have them both recorded, which was done. The defendant then gave the bank a deed of trust on said real estate. In the course of a few weeks, the defendant negotiated a sale of said real estate to John and Frank Yernon. The defendant and Mr. Yernon went together to Eldon where the deed was prepared, and the defendant and his wife signed the same, conveying this land to the Yernons. The defendant at that time exhibited the two deeds, which he said conveyed a perfect title from Brown to Wait and from Wait to defendant, both having been duly recorded. Upon examining the deeds, it was discovered that the wife of Wait had not joined in the deed and the Yernons objected to the title for that reason. Defendant assured them that it was all right, that the bank had taken a deed of trust on the property, and he could sell it the next day for more money. He refused to give them any time to investigate or think about the matter, but insisted that the trade must be closed then, or not at all. After advising with the gentleman who was writing the deed and receiving assurance from him that he did not think they would have any trouble, the Vernons accepted the defendant’s deed and paid him the money therefor, and the defendant then paid off the mortgage to the bank of Tuseumbia. The Vernons were saw-mill men, and they went to- work to cut the timber off of this land, but soon received notice from Mr. Bro-wn to the effect that he owned the land and they must cease cutting the timber. Thereupon the Vernons went to see the defendant and asked him where he purchased this land and he stated to them that he met Wait in Versailles and also in Sedalia, and that he finally bought the land from Wait at Tipton. U© also stated that after Wait gave him the deed at Tipton, he (defendant) mailed said deeds to- the bank of Tuseumbia. To other witnesses the defendant stated that he did not find his man at Versailles nor at Sedalia, but had to go to Independence; that Independence was a nice big town and he had a good trip Up there. The deed from Brown to Wait purported to have been executed before a notary public named Craig at Independence; and the deed from Wait to the defendant was executed before James Sommerhauer, a notary public at Tipton, Missouri. The defendant stated that he had paid the money to Wait, but did not have anything to show that he had paid it, but he did not expect any trouble to result on that account. The Vernons then visited Sommerhauer and took him with them to see the defendant and he recognized the defendant as the man who- signed the deed before him, and gave his name at the time as Wait. Sommerhauer testified at the trial that the defendant in his opinion was the man who acknowledged the deed as Wait. The State’s evidence further tended to prove that the signature to the deed from Brown to Wait was in the defendant’s handwriting as was also- the deed from Wait to defendant. The deed from Brown to Wait was acknowledged August 27, 1903, and the deed from Wait to the defendant was acknowledged August 29', 1903. The defendant’s evidence tended to prove that on the date of the alleged forgery of the deed from Wait to defendant, the defendant was not in Tipton, and did not know anything about the execution of the deed by Wait, and did not know anything about the execution of the deed from Brown to Wait; hut that he and his wife and two daughters drove in a wagon from his farm to Eldon, transacted some business there that day and returned home, when he went to seek employment on a new railroad a few miles away. Defendant further stated that he met this man Wait in Eldon; that Wait told him he had just traded for this Brown land, and would like to go and see it; that thereupon defendant took Wait in his wagon and drove around the road by the Brown land and pointed it out to Wait, and that Wait said he did not like it and wanted to sell it. The defendant then agreed to buy the land provided he could raise-the money, and then Wait left him and he did not know where he went; that afterwards the defendant made arrangements to raise the money and took it with him to Versailles, where he got the station, agent to write a letter to Wait at Sedalia to the effect that he would he there the next day and pay him for the land. In the meantime, Wait had mailed the deeds to the bank at Tuscumbia, and the defendant had been informed that they were all right. That the defendant then went to Sedalia, met Wait at the depot and paid bim the money. Wait went into the station and had the station agent write a receipt, which he signed and gave to defendant, but the defendant had lost the receipt. Defendant denied that he signed any of the forged deeds, and also testified that he was an illiterate man and could only write his name. The members of defendant’s family corroborated him in regard to his ■whereabouts on the day of the alleged forgery, and also as to his inability to write anything except his own name.

1. The information in this case is bottomed upon section 2012, Revised Statutes 1899, and is sufficient to constitute a valid charge under that section. [State v. Hathhorn, 166 Mo. 229; State v. Mills, 146 Mo. 195.]

2. It is urged by the learned counsel for the defendant that it is highly improbable and unreasonable to believe that the defendant could have been guilty of the offense charged, for the reason that his evidence tends to show that he was a man fifty years of age, of little or no1 education, and according to his testimony, and that of his family, he could only write his name in his business transactions. This contention ignores the nature of the charge in the information. The defendant was not charged with forging the deed, but with having in his possession the said forged and counterfeit instrument knowing the same to- have been forged, with the intent of injuring or defrauding by uttering and passing the same as true. It is not at all essential to his conviction under this charg*e that he should have actually forged the said -deed or have personally affixed the name of the said Brown thereto. So the proof of his limited education and want of ability to write the instrument falls far short of disproving that he had said forged instrument in his possession knowing the same to have been forged and counterfeited and with intent to- defraud by uttering the same as genuine. [State v. Allen, 116 Mo. l. c. 554, 555; State v. Hathhorn, 166 Mo. 236.] There was ample evidence to justify the jury in finding not only that the deed from Brown to Wait was forged, but that the defendant had knowledge of such forgery and was in the possession of said forged and counterfeit instrument with the intent to utter and pass the same as a genuine deed.

3. The verdict of the jury is challenged as insufficient. There was but one single charge in the indictment, and upon that charge the jury returned a verdict of, “We, the jury, find the defendant guilty and assess his punishment at imprisonment in the penitentiary for a term of two years.” This verdict was sufficient. [State v. Berning, 91 Mo. 82; State v. Elvins, 101 Mo. 243.] The verdict in this case is easily distinguished from the cases of State v. DeWitt, 186 Mo. 61, and State v. Cronin, 189 Mo. l. c. 673.

4. There is no merit in the contention that the venue was not sufficiently established. There was abundant evidence tending to show that the defendant had the forged deed in his possession in Miller county with the intent then and there knowingly to utter the same in said county.

5. The instructions one and two> given on behalf of the State were full and fair and exceedingly liberal towards the defendant. It is unnecessary to burden this opinion with reproducing these instructions.

6. During the trial, the State offered in evidence a note and chattel mortgage executed by the defendant to one Austin, and by Austin endorsed to Graham. This note was offered for the purpose of proving the handwriting of the defendant for the purpose of comparing it with the signatures to the alleged forged deed. This was clearly admissible under section 4679> Revised Statutes. 1899.

7. As to the proposition advanced that the court erred in permitting counsel for the State to cross-examine the defendant on matters concerning which he was not examined in chief, it is sufficient to say that no objection was made to his examination by the attorney for the defendant and no exceptions saved and of course the matter is not before us for review.

8. No error was committed by the court in permitting the witnesses Musser, Howenstein and Harrison to testify as experts on handwriting. They were qualified, but if they were not, tbe motion for new trial nowhere assigns their testimony as ground of error.

9. No error was committed in permitting tbe State to prove that about the time of tbe commission of tbe act charged, the defendant had in his possession another forged deed from Wait to himself, which purported to convey title to the same land. It was entirely competent to prove that the defendant forged the signatures to the 'deed from Brown to Wait and from Wait to defendant. The rule has long been established in this State that upon an indictment for forgery, evidence is admissible to show that defendant has been guilty of other forgeries than the one charged, committed about the same time. The evidence is admitted to establish, the fraudulent intent on the part of the defendant, notwithstanding such' evidence may also tend to prove the defendant guilty of another distinct offense.

10. There are various other objections, among them, the proposition made by the defendant after his conviction, that he was prosecuted by information and not by indictment, but we have carefully considered all these points and in our opinion none of them constitute reversible error. Accordingly, the judgment of the circuit court is'affirmed.

Fox, P. J., and Burgess, J., concur.