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    ROBERT W. SMITH v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant.
    Division Two,
    July 5, 1919.
    1. TESTIMONY: Expert: Chiropractic: Deposition: No Timely Objection. The admission in evidence of the deposition of a chiropractic, who did not qualify so as to give an opinion regarding the effect of plaintiff’s injuries upon his physical and mental functions, taken in May, defendant’s counsel being present, and read in chief, without objection, at the trial in October, and to which no objection was made until after the deponent’s cross-examination was read at some length, and then for the first time counsel for defendant announced that he was going to move to strike out every portion of the testimony which attempted to give an expert opinion, but did not point out specifically the portions he expected to have striken out, was not error. There being no designation of what portion of the deposition was incompetent, and consequently no ruling as to the admissibility of any specific portion of it, and no timely objection to it, its admission cannot be held to be error.
    2. -: -: -: Improper Question and Answer Withdrawn. Plaintiff, in taking the deposition of a chiropractic, asked a question which called for an expert opinion. Defendant objected because deponent was not qualified as an expert. The answer was recorded, an exception saved, the question repeated, and the objection renewed, whereupon plaintiff withdrew both the question and the former question and answer. Deponent was not qualified as an expert, but throughout his deposition, which was read without objection, had in effect answered the same and similar questions in detail. Held, that, there being no other exception to the rulings as to the admissibility of deponent’s testimony, it cannot be conceived how the question and answer, even if they had not been withdrawn, injured defendant, for they added nothing to what deponent already had testified.
    3. -: Res Gestae: Contradicting Witness. Where the conductor of the train, of which plaintiff was a brakeman, had in his direct testimony for defendant, testified that no one had told bim that the brakebeam of the car was down and that he did not know that the fireman or the plaintiff had gone under the car to adjust the beam, and on cross-examination was asked if he didn’t come running up to the place where plaintiff was injured and "say he had forgot the men were under the car, it was competent, for the purpose of contradiction, to prove by another witness, on rebuttal, that the conductor, at that time, was asked by the engineer why he turned the air on while the men were under the train and that he exclaimed, “My God, I forgot it; I didn’t know what I was doing.” [Following Gordon v. Railroad, 222 Mo. 1. c. 531.]
    4. INSTRUCTION: Knowledge: Actual and Imputed. Where the evidence tends to show that the conductor was told the brakebeam of a car was down and knew the plaintiff had gone under the car to adjust it, but did not necessarily know plaintiff was still under the car at the time he “cut in the air” which caused the floating lever to move and strike the plaintiff’s head, and where there is also evidence tending to show that a “spot” signal was given, which required the conductor to know that something was wrong about the train concerning which it was his duty to obtain information, an instruction which tells the jury that if the conductor, at the time he cut in the air, knew, “or in the exercise of ordinary and reasonable care could and should have known,” that the plaintiff was under the car, the defendant was guilty of negligence, is proper; the question, under such circumstances, is not solely one of actual knowledge.

      5. -: -: -: Theory of Trial. Besides, instructions offered by defendant telling the jury that if the conductor did not know and “could not have known in the exercise of ordinary care” plaintiff’s perilous position he could not recover, precludes defendant from insisting that plaintiff’s instruction should have confined his right to recover to the conductor’s actual knowledge.
    6. VERDICT: Presumption: Rinding of Every Ract. The court must presume that the jury found every fact of which there was evidence on the issues properly submitted tending to support the verdict.
    7. -: Deduction for Contributory Negligence: Award for Actual Damages Only: Remittitur. Where the petition demanded $75,000 as damages, and there was some evidence of contributory' negligence, and the instruction, under the provisions of the Federal Employers’ Liability Act, directed the jury to make a proportionate deduction from the actual damages suffered, if they should find there was such contributory negligence, and they returned their verdict for $37,500, it cannot be held that they found the actual damages were $37,500; for the court cannot assume that the jury found any fact, where the evidence was contradictory, that would impair their verdict, and there being positive evidence that plaintiff was not guilty of contributory negligence, the excess may be corrected by remittitur if the court finds the verdict excessive as to the actual damages.
    8. -: Excessive: $25,000. Plaintiff’s head was crushed between two beams of a car; his nose was mashed over to one side; the bones of the skull were broken into pieces, and some of them taken out, leaving a space unprotected by bone, an inch and a half long and an inch wide; he suffered with convulsions until an operation was performed, indicating pressure upon and injury to the brain; two years later the, evidence indicates injury to the brain; his vision is impaired, he cannot turn his eyes laterally, can only focus them on objects directly in front, and is unable to read except for a few moments at a time; there is a suppurative discharge from his nose, accompanied by a disagreeable odor; he has an ataxic walk, and fibrillary tremors, involuntary and incapable of simulation, run over his body, and in walking he lifts his legs much higher than a normal man, indicating ataxia, and in stooping over has a sensation that his brain is dropping out through the hole in the forehead. Prior to his injury he was in perfect physical condition, was an athlete, possessed an unusually quick mind, learned easily and took interest in literary pursuits; his mind is now impaired, especially his memory, and scientific tests indicate his mind is about equal to that of a child ten years of age. At the time of his injury he was 24 years of age and receiving a hundred dollars a month, and since has been unable to earn anything. The jury returned a verdict for $37,500, and that was reduced hy the trial court to $25,000, which on appeal is, held, not excessive.
    9. -: -: Bule. The court has never ruled that any verdict for personal injuries in excess of $25,000 is excessive. Every case must he determined on its own individual facts.
    10. -: -: Value of Money. Twenty-five thousand dollars in 1904 was a much larger sum in purchasing power than the same sum in 1914.
    Appeal from Jackson Circuit Court. — lion. Thomas Seehorn, Judge.
    Affirmed.

      Cyrus Crane for appellant.
    (1) The excessive verdict was not cured by the remittitur which the court ordered. The remittitur merely brings the verdict down to the maximum allowed by this.court in the personal injury cases and does not preserve the deduction from the gross amount of damages which the jury apparently made or intended to make in the verdict, (a) There was evidence from which the jury could have found that the plaintiff was guilty of contributory negligence, (b) Total amount of damages demanded by plaintiff was $75,000. (c) The jury’s verdict shows that it made a deduction on account of plaintiff’s negligence, (d) The remittitur required by the court does not preserve such deduction, (e) The original verdict was manifestly excessive, (f) The defendant’s right to a deduction because of contributory negligence must be strictly observed. Hadley v. Railway, 156 N. W. (Neb.) 765; Railway Co. v. Wright, 207 Fed. 281, 125 C. C. A. 25; Pennsylvania Co. v. Sheeley, 221 Fed. 901. (2) The verdict of the'jury was excessive under either State or Federal decisions and a new trial' should be ordered rather than a remittitur. The United States Supreme Court leaves the amount of damages to the trial and appellate courts. Railway Co. v. Bennett, 233 U. S. 80. Federal court allowances are not more liberal than those of Missouri. Duke v. Railway Co., 172 Fed. 684; Railway Co. v. Lindsey, 201 Fed. 836; Cain v. Railway Co., 199 Fed. 211. This court is free 'to follow its own decisions and, therefore, should grant a new trial. Partello v. Railway, 217 Mo. 645. Remittitur is only used as a cure where there is no other error in the record. Cook v. Globe Printing Co., 227 Mo. 471. (3) The court erred in admitting expert opinions from witness E. C. Herron because he was not qualified. The qualifications of this witness were for the court, and not for the jury, as the court erroneously held. Fullerton v. Fordyce, 144 Mo. 530; Benjamin v. St. Ry. Co., 50 Mo. App. 608; Bradford v. Railway, 64 Mo. App. 483; Gates v. Railway, 44 Mo. App. 492. This court is -not given to treating fake practitioners as experts. Weltmer v. Bishop, 171 Mo. 110. The objection made to the testimony was sufficient. Railway v .Second St. Improvement, 256 Mo. 411; Railway v. Walsh, 197 Mo. 409. (4) The court erred in admitting evidence as to Conductor Johnson’s statements made after the accident occured. They were not part of the res gestae, nor admissible as impeaching testimony. Koenig v. Railway Co., 173 Mo. 709; Wojtylak v. Coal Co., 188 Mo. 260; Barker v. Railway, 126 Mo. 143; Price v. Thornton, 10 Mo. 135; Rogers v. McCune, 19 Mo. 558; McDermott v. Railroad, 73 Mo. 516; Adams v. Railroad, 74 Mo. 553; Devlin v. Railroad. 87 Mo. 545; State v. Hendricks, 172 Mo. 654; Gordon v. Railway Co., 222 Mo. 532. The alleged contradictory statements were not admissible for the purpose of impeachment. Hamburger v. Rinkle, 164 Mo. 407; Roe v. Bank, 167 Mo. 406. (5) Instruction one given on behalf of plaintiff was erroneous. There was no evidence or facts warranting the jury in finding that the conductor, “in the exercise of reasonable and ordinary care could and should have known that plaintiff was under the car. ”

      A. N. Gossett and T. J. Madden for respondent.
   WHITE, C.

The plaintiff in an action for personal injuries was awarded a verdict against defendant in the Circuit Court of Jackson County for $37,500. Defendant’s motion for new trial was overruled on condition that the plaintiff remit $12,500 from the verdict. This was accordingly done, judgment entered for $25,000, and the motion overruled. Thereupon the defendant appealed to this court.

The plaintiff was a brakeman in the service of the defendant. He was injured January 10, 1914, at Bates, Arkansas. Pie was working on a branch line running from Hetherman, Oklahoma, to Waldron, Arkansas. When the train, on the day mentioned, arrived at the town of Bates, it contained only three or four ears. At that point there stood on the siding a number of cars comprising a bridge-and-building outfit, consisting of seven to nine cars; these were to be taken into the train on which the plaintiff arrived. Considerable evidence was introduced to show the method by which this was done and to explain the operation of the train at that time. It is not necessary to state this in detail. Briefly, the engine and one or two cars were cut off from the train on the main line, brought on to the siding and attached to the bridge-and-building cars; the train was then run back on the main line and backed to the cars of the train which had been detached, for the purpose of coupling them on again. It séems that the • conductor, a man named Johnson, remained with the section of the train which was left on the main track, while Smith, -the plaintiff, was engaged in assisting to couple and line up the new cars that were brought into the train. While this was being done it was discovered that a brakebeam was down on a car near the engine. There was evidence tending to show that the fireman, a man named Weller, gave what is termed a“spot” signal, indicating to the .conductor that something was wrong that required his attention. The testimony is contradictory as to whether such spot signal was given, and if it was given whether the conductor was in position to see it.

The plaintiff testified, and was corroborated by another witness, that he called to the conductor and told him the brakebeam was down,, and was directed by the conductor to go in and fix it. The fireman, Weller, notified the engineer that the brakebeam was down. Weller got a pick and went under the car for the purpose of attempting to repair the brakebeam, and plaintiff went under for the purpose of assisting, and while there he saw that a pin which goes through what is called a “floating lever” was out of position and'he attempted to fix it. In doing that his head came between the floating- lever and what is termed the “needle beam,” which is attached to the bottom of a car and runs crosswise. At that time the conductor, Johnson, was coupling up the rear remnants of the train with that section which had been taken in, and in doing so found some difficulty which required time, but finally made the coupling. He then made the necessary hose connections for the air and, using the term applied by the men, “cut in the air.” This caused the floating lever where Smith was working to move and strike Smith’s head, crushing it between that appliance and what is called the needle beam, causing the injury for which he sues.

The question as to defendant’s negligence was as to whether the conductor, Johnson, before cutting- in the air, knew, or by the exercise of ordinary care could have known, that the brakebeam was down, and also knew, or by the exercise of ordinary care could have known, that some of the men were under the car fixing it. If he did it was conceded that he was negligent in cutting- in the air, which would be likely to cause some movement and render the position of the men dangerous.

Also it was a question whether the plaintiff was negligent in placing himself in the position in which he was, without first cutting off the air from the car where he was working. The evidence on both of these propositions was conflicting. It seems to be conceded by the appellant that there was sufficient evidence of the defendant’s negligence to warrant submission of that issue to the jury. But it is argued that the conduct of the plaintiff shows negligence upon his part so as conclusively to warrant a deduction under the Federal Employers ’ Liability Act from any actual damages found. There was sufficient evidence from which the jury might very properly have found that the plaintiff was not negligent in any respect, but was in the line of his duty and did not unnecessarily expose himself to a peril which might reasonably have been avoided; that he had a right to rely upon the conductor’s observing ordinary care, and believed and had reason to believe that such conductor knew of his position. He swore, and there is other evidence corroborating him, that he had plenty of room and was in a perfectly safe and proper position if the cars had been allowed to remain without interference; that is, if nothing had been done with respect to the brakes.

I. Error is assigned to the admission of the testimony of E. C. Herron who, it is claimed, testified as an expert, when his evidence showed that he was not qualified as an expert. He was a chiropractic doctor and testified to the condition of plaintiff Smith before he was injured and the relation of his hurts to his present condition. He had no license to practice medicine and had received his education as a chiropractic mainly by correspondence.

Undoubtedly counsel for plaintiff is correct in his position that Herron did not qualify so as to give an opinion regarding the effect of the plaintiff’s injuries upon his physical and mental functions. He testified by deposition which was taken May 20, 1915, at Mena, Arkansas. This deposition was read at the trial which did not begin until October. The defendant was represented by counsel at the taking of the deposition and, of course, knew as well when the deposition was offered in evidence what it disclosed as to Herron’s disqualification as it did after it was read. Yet the deposition in chief was read without objection and showed the qualification of the witness, his experience and education as a chiropractor. Witness testified that he was acquainted with the plaintiff long before the injury, and described his fine physical condition prior to that time. He explained the effect upon his movements caused by his injuries, and described what he seemed to think was the cause of the trouble; it was the displacement of certain vertebrae which affected his nerves. This alleged displacement was shown by one of the defendant’s expert witnesses to be absurd and impossible. ILerron also described the general condition of plaintiff and the condition of his head where it was injured. Occasionally objections were interposed and in each case they were sustained or questions withdrawn. At one point in the reading of the deposition defendant’s counsel interrupted and pointed out the place to which the counsel for plaintiff might skip and continue to read, and that part which then was read gives the witness’s theory about the impingement upon the nerves caused by the dislocation of some joints of the spine; also the effect of this supposed condition upon the muscles of the throat and the internal organs. All this without objection. Many objections appear in the course of the examination to the form of the questions; these appear to be entered on the deposition as originally taken, and no exceptions were saved when the answers to such questions were read to the jury. Finally, after the cross-examination of the witness was read at some length, counsel for defendant announced that he was going to move to strike out every portion of the witness’s testimony which attempted to give an expert opinion, and would point out specifically the portions which he expected to have stricken out. The record does not show that any such designation was made and consequently there was no ruling as to the admissibility of any specific evidence which had been offered.

For that reason and for the failure to object in time, the complaint that such testimony was incompetent cannot be heard now. [State v. Marcks, 140 Mo. l. c. 668-9; State v. Forsha, 190 Mo. l. c. 326-7; State v. Bateman, 198 Mo. l. c. 223-4; Hickman v. Green, 123 Mo. 165.]

In reading the deposition, this question occurred: “I will ask you if there is any part of the human body that is not affected by the brain and nerves?” This was objected to because the witness was not qualified as an expert. The objection was overruled and the exception saved. Witness answered that there was no part of the body but what was affected by the brain and nerves. The question was repeated and the objection renewed, whereupon the plaintiff’s attorney withdrew the former question and answer and also withdrew the question which had just been asked.

It hardly seems that the defendant, could have been injured by the question and answer even if it had not been withdrawn, because the witness had in effect answered the same and similar questions more in detail throughout his deposition without objection and the present question, to which the objection was made, and the answer added nothing to what he had already said. No other exceptions were saved to the ruling in the testimony of Herron. It is claimed by plaintiff’s counsel that the defendant was anxious to-have his testimony in for the purpose of ridiculing it as a weakness in the plaintiff’s case. The defendant’s conduct lends color to that claim. There was no error in receiving the testimony which can be considered here.

II. The appellant claims that the court committed error in permitting a witness to testify to a statement made by Johnson, the conductor, immediately after he learned that the plaintiff was injured, in which he said that he forgot that the men were under the car. Johnson had testified in his examination in chief that no one told him the brakebeam was down and he didn’t know either Weller or Smith had gone under the ear to adjust it. On cross-examination he was asked if he didn’t come running up to where the plaintiff was caught and say he forgot the men were under the train. He replied that he didn’t remember saying that. Witness Cooper then was placed upon the stand, in rebuttal, and testified that at that time Mr. Hull, the engineer, asked Johnson why he turned the air on while the men were under the train, and that Johnson exclaimed, “My God, I forgot it; I didn’t know what I was doing. ’ ’

The position of appellant is that this exclamation was no part of the res gestae, a matter not necessary to determine. It was offered for the purpose of contradicting the witness, and appellant claims it- was incompetent for that purpose. Two cases are cited by appellant in support of that position. [Koenig v. Union Dep. Ry. Co., 173 Mo. 698; and Wojtylak v. Coal Co., 188 Mo. 260.] In the Koenig case, shortly after a child was killed by a street car, the motorman was asked, “Are you blind to run over a child like that?” and he replied: “I didn’t see the child, I was looking at the car coming east.” The court held this was not res gestae and not admissible for that reason. The motorman had not testified indicating that he saw the child or to any fact which this statement would tend to contradict, and the court said, l. c. 721-22': “This evidence was not offered for the purpose of contradicting the motorman, hence inadmissible for any purpose.”

In the Wojtylak case the court held that a statement of that character was not admissible in that ease, because it only tended to contradict a statement of the witness which was not pertinent to any issue in the case. [188 Mo. l. c. 288-89.]

In the case of Gordon v. Railroad, 222 Mo. 516, l. c. 531-2, the plaintiff, a switchman, sued for injuries caused by a defective handrail, and was permitted to show that the yard foreman, -soon after the injury, had made a statement indicating that he knew of the de-_ fective appliance. He had just testified that he examined the handrail in question an hour and a half after the accident and found it in good condition. His declaration was held tq he admissible, because it was inconsistent with his testimony. That case distinguishes the Koenig case, supra, in that the foreman had just previously testified to matters inconsistent with this declaration. Several eases are reviewed by this court in the Gordon case illustrating the principle (L. c. 533-4).

In the case of Hutchinson v. Safety Gate Co., 247 Mo. 71, l. c. 104 a statement of similar nature was admitted in evidence. The only objection to it was that the witness was not examined in relation to the matter while on the stand, but he was afterwards recalled and examined, and then the impeaching statement admitted. The competency of the testimony for the purpose was not questioned.

In this case the statement as offered indicated that Johnson knew the brakebeam was down and that someone was under the car and tended thereby directly to contradict the testimony he had just offered to the effect that he did not know those things. On the authority of the Gordon case the evidence was competent.

III. Appellant claims the court committed error in instructing the jury that if they should find from the evidence that the conductor cut in the air without first warning the plaintiff of his intention to do so, and if they further found that the conductor knew, “or in the exercise of ordinary and reasonable care could and should have known” the plaintiff was under the said car, etc., then he was guilty of negligence.

■ It is asserted that while there was evidence that the conductor knew there were men under the car, there was no evidence on which to base that part of the instruction which authorizes the finding of negligence if by the exercise of reasonable' and ordinary care he could and should have known that the men were under the car; that it was a question of actual knowledge.

There was evidence tending to show that the conductor was told the brakebeam was down, and some of this evidence indicates that while he was so informed, and knew the men were going under the car, it would nót necessarily follow that he knew the men were under the car at the moment the air was cut in. There was also evidence of a “spot” signal which indicated something was wrong that required attention. Other evidence indicates that the train was stopped for some time and, while tlie conductor was back toward the rear of the train at the time he cut in the air, on account of the spot signal, if it was given, he had reason to know that something was wrong about which it was his duty to obtain definite information. He himself swore positively that he did not know the men were under the car, and there is positive evidence that he was told the brake-beam was down; this would suggest to him that the men probably would be under the train for the purpose of adjusting it. The evidence was entirely sufficient to allow the instruction.

Besides, appellant tried the case on that theory. In instruction numbered 2, and instruction numbered 9, offered by defendant, the jury were told that if the plaintiff went under the car without advising the conductor that the brakebeam was down and that the conductor did not know and “could not have known it in the exercise of ordinary care” then the verdict should be for the defendant. '

IV. Appellant with great ingenuity and force insists that the verdict is excessive and the defect cannot be cured by remittitur. The argument runs thus:

There was evidence tending to show the plaintiff was guilty of contributory negligence, and the instructions under the provision of the Federal Employers’ Liability Act directed the jury to make a proportionate deduction from the actual damages suffered, if they should find such contributory negligence. The amount of recovery demanded in the petition was $75,000, and the full amount was insisted on in the plamtift s argument. The verdict was for half that, or $37,500. It is therefore probable that the jury found plaintiff’s actual damages at $75,000, and deducted half on account of his negligence. Or they might have found his damages at $50,000, and deducted one-fourth on account of his negligence. But this court has never allowed a verdict for actual damages in a personal injury case to stand for more than $25,000. Therefore, the actual damage to plaintiff could not exceed $25,000, and the remittitur of $12,500, which the circuit court ordered did not allow for the probable finding that the plaintiff was negligent. The circuit court should have limited recovery to $25,000, actual damages, less a proportionate amount for contributory negligence, but did not. It is impossible to say what the jury might have deducted for contributory negligence if there had been such limit. Therefore, the judgment as reduced to $25,000, is excessive because of the probable contributory negligence, and the excess cannot be cured by remittitur because it is impossible to say what proportion the jury might have deducted from the actual damages on that account. An alternative might be found by reducing the judgment one-half, to $12,500.

Appellant cites two cases in support of this position. [Hadley v. Union Pacific Railroad Co., 156 N. W. (Neb.) 765, and Pennsylvania Co. v. Sheeley, 221 Fed. 901.] The Hadley case follows the Sheeley case, holding, as is the rule, that the construction of the Federal Employers’ Liability Act by the Federal courts is conclusive upon the State courts. Both these cases hold that it is proper, in case there is evidence of contributory negligence in a suit under the act, to submit such issue to the jury. In the Sheeley case the court held it was not properly submitted to the jury, so that they might apportion the damages on that account. Nevertheless the court found it could correct that defect in the verdict by remittitur In the Hadley case the court first determined from the evidence that the actual damages should not he in excess of $18,000, and then determined that the proportionate amount on account of contributory negligence could not exceed one-fourth of that amount, and ordered a remittitur so as to reduce the judgment to $13,500. In each of these eases, therefore, where the amount of the deduction for contributory negligence was uncertain, the court did find it possible to correct any excess by remittitur. Appellant suggests that the court in those cases invaded the province of the jury, but if this court follows the Federal case, which we are presumed to do, then any excess in the verdict may he cured by remittitur.

However, there is another principle which applies here. That is, all presumptions are indulged in support of a verdict and a judgment. In an attack upon the propriety of a verdict the court must presume that the jury found every fact, of which there was evidence on issues properly submitted to the jury, tending to support the verdict. [Wright v. Green, 239 Mo. 449, l. c. 454; Mfg. Co. v. Insurance Co., 167 Mo. App. 566,1. c. 570.] In this case it may be conceded there was some evidence tending to show the plaintiff was negligent, while other evidence and many of the facts in the situation would lead to the conclusion that he was not- negligent in getting under the car and in putting himself in the position in which he got hurt — that he was only pursuing his ordinary duty. Now, if necessary in order to sustain the verdict as rendered, we are bound to presume the jury found that he was not negligent and that the verdict rendered indicates the actual damage which they found he had incurred. This court cannot assume that the jury found any fact, where the evidence is contradictory, which would impair their verdict. It cannot be presumed that they reached a conclusion in regard to any disputed fact which would invalidate the general conclusion shown by the verdict. In that case, if this court finds the verdict excessive as to an award of actual damages, the excess may be corrected by remittitur.

Y. It remains to consider whether the verdict is excessive, requiring a remittitur as a condition of affirmance.

The plaintiff’s head was crushed between the floating lever and the needle beam. His nose was mashed over to one side,' the bones of his nose crushed into his face; the bones in the skull were broken into rnany pieces, and these bones had to be taken out, leaving a space unprotected by bone, an inch and a half long and an inch wide. He suffered with convulsions for several hours until an operation was performed. This indicated pressure upon and injury to the brain. Blood was coming out of his eyes and ears. His suffering for some time was intense.

The permanence of the injury was testified to by several physicians who examined him. There was contradictory evidence as to whether any of the gray brain-matter oozed out at the time of the injury, but the evidence seemed to be uniform that his brain could be injured, and there was evidence that it was injured, by the blow, even if there was no rupture of the covering of the brain. His vision was impaired and the evidence indicates that he could not turn his eyes laterally and could only focus them on an object directly in front; he was unable to read except for a few moments at a time. A discharge came from his nose; there was a suppurative condition there, accompanied by a disagreeable odor. He had an ataxic walk and fibrillary tremors ran over his body at times; this is explained by the physicians as being entirely involuntary and incapable of simulation. His eyes fluttered on account of his inability to focus them on a direct object without moving his head, and that was because the nerve supply was affected with indications that the muscles which manipulate the eye were atrophied from diease. He was continually restless and nervous, with twitching and fidgeting, even when he was asleep. He would squirm around and wring his hands when engaged in conversation. On a test of his equilibrium when he closed his eyes and tried to stand erect he had a tendency to fall backward to the left side. He lifted his legs much higher in walking than a normal man does, indicating ■ ataxia. He did not sit down or move like a normal individual. In stooping over, he had a sensation that his brain was dropping out through the hole in his forehead. This is characterized by the physicians as a delusion due to pressure on the brain when he stoqps.

The testimony of several physicians was that this physical condition would grow worse instead of better; that in no event could he ever recover his normal condition. There was some evidence offered by defendant to the effect that he would to some extent recover.

Before plaintiff was injured he is described by the witness as being in perfect physical condition; he was an athelete and had a naturally quick mind. He was apt at school. He began working for himself at fifteen years of age as a clerk in the commissary department of a planing mill, and did the work of an ordinary clerk. He learned unusually fast, acquired a limited speaking knowledge of the German language; took great interest in the literary exercises at school; he had some education in telegraphy.

The evidence tended to show that his physical condition had affected his mind, particularly his memory. The physician of the Kansas State Penitentiary and other physicians subjected .him to what is termed the Binet-Simons test, for the purpose of determining whether or not he was deficient in certain faculties of mind. Those tests are set out in the evidence, and the result was reached that his mind, by all those tests, was about equal to that of a normal child ten years old. His memory of recent events was very much impaired. Tlie tests to which he was subjected by the physicians indicated that condition of his memory, his association and continuity of ideas, his perception, his conception, judgment and will. His faculty of association of ideas, that is, following one idea after another in an intelligent manner, was not that of a normal man. He was extremely slow and labored in answering questions. It was the opinion of an expert that his memory of past events prior to his injury was better than recent ones and showed that his memory must have been good before his injury. Appellant argues that his deposition and his evidence, set out in the record, shows no impairment of his mental faculties. But his manner of delivering that testimony does not appear in the record, and one physician called attention to his demeanor in court as "showing the impairment of his mind and muscular control.

There was considerable evidence offered by defendant indicating that his injury was not as serious as the testimony offered by plaintiff would indicate, hut there was sufficient evidence by which the jury might very properly have found that his physical and mental condition was impaired beyond any possible recovery to anything like a normal state, and that his capacity for earning a living and enjoying life were reduced to a very low point. He was injured January 10,1914, and at the time of the trial in October, 1915, nearly two years later, he had been unable to earn anything. A .sufficient time had elapsed so that the permanence of his injuries or otherwise were capable of approximate ascertainment.

Appellant asserts that this court has never allowed a damage for personal injuries in excess of $25,000, and states it as if that were a definite rule. There is no definite rule laid down by this court in any case; each individual case has been determined upon its own facts.

The ease of Gordon v. Railroad, 222 Mo. 516, is mentioned as the extreme case in which this court permitted the highest possible damage for personal injuries, and that is where a verdict for fifty thousand dollars was cut down by tbe circuit court to thirty-five thousand dollars and by this court to twenty-five thousand dollars. In that case the plaintiff’s injuries resulted in total paralysis in his lower extremities. He finally died of the injury before the decision was reached in this court.

The plaintiff in this case was 24 years of age and earned about a hundred dollars a month; the plaintiff in the Gordon case was 29 years of age and earned about ninety dollars a month. In the Gordon case the injury occurred in 1904, and in this case in. 1914, about ten years later. Twenty-five thousand dollars in 1904 was a much larger sum in purchasing power than that sum in 1914. While the injury in the Gordon case was probably more painful and more serious in its results, we are not prepared to say that the verdict for $25,000 by the trial court was excessive.

In the recent case of Turnbow v. Kansas City Railways Company, decided at the last term of this court, a verdict for $30,000 was affirmed on condition of a remittitur of $5,000. The injury was the loss of both legs, possibly not as serious as the injury in this case.

Respondent cites many cases from other States where much larger verdicts for injuries no more serious than that suffered by the plaintiff have been upheld.

The judgment is affirmed.

Roy. G., absent.

PER CURIAM:

The foregoing opinion by White., C., is adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: RAILEY, C. PER CURIAM:

license: Public Domain

text:
    THE STATE v. RAY H. CUMMINS, Appellant.
    Division Two,
    July 5, 1919.
    1. EVIDENCE: Other Burglaries: Conspiracy. Where there is testimony that defendant, a policeman, entered into an agreement with a burglar and some women by which the moneys and goods stolen by the burglar from houses burglarized by him were to be divided among them, in return for protection to the others by defendant, testimony of other burglaries than the one specified in the indictment, which the burglar testifies were committed about the same time and in pursuance to the continuing conspiracy, is competent.
    2. -: -: Committed Before Conspiracy Was Formed. When a witness was testifying concerning the burglarizing of his house defendant objected because it did not then appear that defendant was connected with any burglary except the one specified in the indictment. At that time the witnesses by which the State subsequently attempted to prove that the defendant and one of them had entered into an agreement by which defendant, in consideration of police protection for the other, was to share in the goods stolen, had not testified, and consequently the court could not then tell whether the connection would be later established. It later developed that at the time the witness’s house was burglarized defendant had never met his said accomplice, but the objection was not then renewed. Held, first, that since the objection was not renewed, the admission of the testimony was not error, and, second, since the accomplice testified that he divided the goods which he stole from said house with defendant, under said agreement, the testimony was competent.
    3. ELECTION: Burglary .and Larceny: Receiving Stolen Goods. Where the evidence is comprehensive enough to sustain a conviction either for burglary and larceny, or for receiving stolen goods, knowing them to have been stolen, the court does not err in refusing to compel the State to elect upon which of the two counts of the indict- ■ ment, charging both offenses in separate counts, it will stand.
    4. INSTRUCTION: Uncorroborated Testimony of Accomplice. An instruction telling the jury that they are at liberty to convict the defendant upon the uncorroborated testimony of an accomplice alone, if they believe his statements are true and sufficient to establish defendant’s guilt, but that such testimony, when not corroborated, ought to be received with great caution, is not error.
    5. _; Assumption of Disputed Fact. An instruction telling the jury that “evidence of other burglaries and larcenies were admitted by tbe court solely for tbe purpose of determining whether a conspiracy” existed between defendant and his accomplice to burglarize various dwellings in the city “and you are to consider this evidence for no other purpose,” did not assume that other burglaries had been committed or that defendant had committed them.
    6. SUFFICIENT EVIDENCE: Burglary and Larceny. The evidence in this case, which is fully set out in the statement, was. sufficient to sustain a conviction of burglary in the second degree and larceny, and assessing defendant’s punishment' at five years’ imprisonment for the burglary and five years for the larceny, the evidence being that defendant, a policeman, entered into an agreement with a burglar and some women by which, in consideration of protection for them, the burglar was to burglarize dwelling houses in the community and divide the stolen goods among them.
    Appeal from St. Louis City Circuit Court. — Son. Victor S. Falhenhainer, Judge.
    Affirmed.

      Charles A. Houts for appellant.
    (1) It is not admissible, upon the trial of an indictment for burglary or larceny, to introduce evidence of other burglaries or larcenies. State v. Daubert, 42 Mo. 242; State v. Spray, 174 Mo. 569; State v. Boatright, 182 Mo. 33. (2) Where, by exception to the general rule, evidence of other crimes is admitted to show a common scheme or plan, such evidence of other crimes must in fact tend to establish a common scheme or plan; otherwise, such evidence is not admissible. State v. Hyde, 234 Mo. 200. (3) Evidence of other burglaries by Prank (an alleged co-conspirator) was not admissible for the purpose of proving the existence of a conspiracy between him and the defendant. 3 Bishop New Criminal Procedure, sec. 229; Metcalfe v. Conner.. 12 Am. Dec. (Ky.) 340. (4) It is error to instruct that a defendant charged with a felony can be convicted upon the uncorroborated testimony of an accomplice. State v. Wilkins, 221 Mo. 444.

      Frank W. McAllister, Attorney-General, and Shrader P. Powell, Assistant Attorney-General for respondent.
    (1) The verdict meets the statutory requirements in every particular. State v. Blockberger, 247 Mo. 696; State v. Kinney, 190 S. W. 306; State v. Conway, 241 Mo. 276. (2) The court did not err in permitting the State to introduce evidence of the commission of other burglaries and larcenies for the purpose of showing the intent and a common scheme and plan. State v. Myers, 82 Mo. 558; State v. Bailey, 190 Mo. 280; State v. Spaugh, 200 Mo. 594; State v. Kinneyj 190 S. W. 306; State v. Patterson, 271 Mo. 109; State v. Lewis, 273 Mo. 530; State v. Othick, 184 S. W. 108; It is proper to introduce testimony showing that the defendant and others combined and confederated together for the commission of a series of criminal acts, even though a conspiracy is not charged in the indictment. State v. Collins, 181 Mo. 261; State v. Rock, 194 Mo. 432; State v. Vaughan, 203 Mo. 670; State v. Casto, 231 Mo. 408; People v. Micelli, 142 N. Y. S. 104. (3) The action of the trial court in overruling defendant’s motion to require the State to elect upon which count or charge in the indictment it would stand, was erroneous. State v. Sutton, 64 Mo. 108; State v. Carrigan, 210 Mo. 366; State v. Pace, 269 Mo. 686; State v. Christian; 253 Mo. 393. (4) The evidence adduced on the trial is amply sufficient to sustain the verdict returned by the jury. State v. Concelia, 250 Mo. 420; State-v. Maurer, 255 Mo. 168. (5) Instruction number one properly defined the crime of burglary and larceny. State v. Fields, 234 Mo. 623; State v. Shout, 263 Mo. 373; State v. Walker, 98 Mo. 104. Instruction number five which announces the law relative to knowingly receiving stolen property is in an approved form. State v. Sakowski, 191 Mo. 642; State v. Kosky, 191 Mo. 1. Instruction number six clearly defined the terms “common design” and “conspiracy.” State v. Walker, 98 Mo. 95; State v. Lewis, 273 Mo. 534; Kennish v. Safford, 193 Mo. App. 372. By instruction number eight the jury was advised that they could consider evidence of receiving stolen property other than the particular instance charged in the indictment only for the purpose of showing intent and is fully sustained by the authorities. State v. Patterson, ■ 273 Mo. 110 ; State v. Spaugh, 200 Mo. 594. The jury was likewise advised by instruction number 8-A, that evidence of other burglaries and larcenies was admitted for the sole purpose, and could be considered only in determining whether a common design and scheme existed between the defendant and the witness Franke. State v. Bailey, 190 Mo. 284; State v. Lewis, 273 Mo. 530. Instruction number nine and ten clearly stated the law relative to the rule for weighing the testimony of an accomplice. State v. Donnelly, 130 Mo. 649; State v. Kosky, 191 Mo. 9; State v. Bobbitt, 215 Mo. 42.
   RAILEY, C.

On September 29, 1917,. the grand jury of the City of St. Louis, returned into open court an indictment in two counts, charging defendant, Ray Cummins, in the first count, with burglarizing the house of Jessie Bennett and Charles Bennett on June 5,1916,. and also with stealing therefrom certain articles of jewelry of the total value of $442.50. The second count of the indictment charged defendant with receiving stolen property. On January 7, 1918, defendant waived formal arraignment and entered a plea of not guilty. He filed a motion to require the State to elect, as to which count it would proceed to trial, and this motion was overruled.

On January 8, 1918, the trial was commenced, a jury impaneled and after hearing the evidence and receiving the instructions of the court, a verdict was returned, finding the defendant guilty of burglary in the second degree and larceny as charged in the first count of the indictment, and assessing his punishment at five years’ imprisonment in the State Penitentiary for the burglary and five years additional for the larceny. After unsuccessful motions for a new trial and in arrest of judgment, the court pronounced sentence in accordance with the terms of the verdict. Thereupon defendant was granted an appeal to this court.

The testimony submitted on the part of the State tends to show that the defendant was, at the time of the commission of the crime charged, a police officer in the City of St. Louis, and had been for nine or ten years prior to 1915. During the month of December, 1915, ho became acquainted with one George Franke, a professional house-breaker, and entered into an agreement with Franke, by which he (defendant) was to share in the proceeds of the loot or stolen plunder, in return for the protection from arrest he was to accord to Franke. The evidence shows that some time during the month of December, 1915, Franke met defendant at the home of a Mrs. Enyart, located at 3324 Vincent Avenue, and that a Mrs.. Champagne and a Mrs. Edna Stevens were at the Enyart place at the time. The two first-named women had, for some years prior to the' date above mentioned, been receiving from Franke stolen property, and the last-named woman conducted a house of ill repute at 730 Carpenter Street. The arrangement seems to have been for the defendant to suggest to Franke certain houses to burglarize, and to keep the latter advised as to the actions and efforts of the police in trying to locate the guilty parties. At the suggestion of defendant, Franke rented a room at 3740 Olivo Street and lived there for a number of months with a woman named Sybil White. After Franke would burglarize a home, according to plan, he would bring the loot either to 3740 Olive Street or to the home of Mrs. Enyart, and at one or the other of these places, with defendant Cummins and usually Mrs. Enyart and Mrs. Champagne present, the plunder would be divided; that Cummins had first pick, and would select out such articles as he desired, some of which he would turn over to either Mrs. Enyart or Mrs. Champagne, both of whom were his particular friends. Quite a number of homes were burglarized, and the stolen property, is is claimed, was divided between this defendant and the other parties above mentioned, for a period extending from December, 1915, until about the 12th of July, 1916, at which time Franke and the White woman were arrested by officers Hunt and Flavis at Grand and Olive. When they were arrested, the testimony discloses, each of them told the officers to tell “Ray” or get word to “Bay” and, upon inquiry, the officers ascertained that they meant “Bay CumminsAccording to the testimony of the above officers, they reported to defendant the above remarks made by Franke and the White woman, and suggested to defendant that he ascertain their street address. Both officers said that, at defendant’s suggestion, they remained some distance away while he entered into a private conversation with Franke, and reported to them that he was unsuccessful in obtaining the desired information.

Both Franke and Sybil White testified that they had an arrangement with Cummins whereby, in the event of their arrest, they would get word immediately to the defendant, and he would see that they were taken care of. The testimony discloses that defendant visited both Franke and the White woman in the holdover, and also at the jail, and sent them packages containing clothing and other articles several times. He also promised to secure a lawyer, and to. see that Sybil White was released on bond. There is also evidence tending to show that defendant went to a room at 3824 Penrose Street, which was occupied by Franke and Sybil White at the time of their arrest, and took from their room several valises full of stolen property, which remained there at the time they were confined in jail. George Franke pleaded guilty to the charge made against him, and was sentenced to the penitentiary. While confined there, he testified that defendant,, in company with one Crites, visited him and promised to see that he was released.

'A considerable number of articles alleged in tbe indictment to have been stolen from tbe Bennett home, as well as a number of articles stolen from tbe homes of other people in St. Louis, were identified at tbe trial, as articles which Franke bad turned over to tbe defendant, and by tbe latter turned over to Mrs. Enyart. A number of these articles bad been recovered by tbe police from tbe Enyart home, where some of them were found bidden in a box under a trap door in tbe floor at that place, and some of them were recovered from pawn shops.

Mrs. Jessie E. Bennett testified as to tbe robbery of tbe Bennett property on June 5, 1916, and after enumerating tbe various articles stolen she gave the value of same as $442.50. Mrs. Frank S. Wiemeyer, living at 5744 Berlin Avenue, testified that about June 3, 1916, their residence was robbed of personal property estimated to be of tbe value of $800 or $900. It further appears that tbe home of Otto Dieckmann, at 5727 Clemens Street, was robbed on December 14, 1915, and various articles of jewelry, etc., were stolen, of an aggregate value of $700. David Abrams testified that his apartment at 5515 .McPherson Street was ’ robbed on December 29, 1915, of mink furs and other property of tbe aggregate value of about $1200. L. W. Johnson, who lived at 5794, McPherson Street, testified that bis apartment was robbed on December 1, 1916, of clothing and other property of tbe aggregate value of $250. Mrs. John E. Avery, who lived .at 4122 McPherson Street, testified that her home was robbed on January 5, 1916, and that she lost cut glass, table-linen, etc., of the aggregate value of $100. Mr. Jules D. Block, who lived at 5715 Cates Avenue, testified, that bis apartment was robbed on December 5, 1915, of clothing and other property of tbe aggregate value of $225. '

Tbe evidence shows, that George Franke robbed tbe residence above mentioned of tbe property taken therefrom.

George Franke admitted that he had been confined in the reformatory at Boonville, and Pontiac, Illinois, and had been in the penitentiary of this ' State. He testified that he had been disposing of stolen goods to Mrs. Enyart at 3327 Vincent Avenue for a number of years, and that while visiting there one evening in December, 1915, he met defendant Ray Cummins, and was told by Mrs. Enyart, Mrs. Champagne and Edna Stevens, who were at the Enyart home at the time of his visit, that the defendant was a “good copper” and that he was stationed at police headquarters and would be able to help Franke out if he got into trouble. Franke further testified that defendant Cummins, at this meeting, talked with him about “all the good jobs I had been doing and about the reports coming into the place there” and assured him that he was “pretty safe” and “would tell me what neighborhood to go into when the police were not in the neighborhood,” and he cautioned Franke to be careful and always “be very careful in a job, to change clothes as quickly as possible, and stay in the house.” At another time, Franke testified, defendant told him to Avork in the district of Forest Park, Grand and Russell Avenue, around Grand and LaFayette Avenue, Hawthorne and LongfelloAv Boulevard, and wanted to know why “I did not go to Chief Young’s residence,” and latér Chief Young’s residence was robbed and “he kinda chided me about it because some one beat me to it.” He testified that, at the suggestion of defendant, he and Sybil White moved to 3740 Olive Street to the home of Mrs. Agnes Gray, where they lived until shortly before the time of his arrest. He testified that defendant told him he Avas walking that beat, and if there were any reports made' he could protect witness by not sending the report in right, or in not calling help if he was around, etc.

Franke admitted, on the. witness stand, that he had burglarized the Bennett apartment, located at 5705 Clemens Avenue, and had secured entrance by removing the glass panel out of the front door, and, after entering, took from the apartment several shirt studs, a revolver, some heads, pearl necklace, gold watch, breast pin, umbrella, a diamond lavelier and other articles which he could not recall at the time; that, in accordance with the agreement with defendant, the latter was to get the pick out of the property stolen, and on the day of .the burglarizing of the Bennett apartment he took the loot to the home of Mrs. Enyart, handed over to defendant Cummins the pearl shirt studs, the cuff buttons, chain and locket on which initials were engraved, a little chain necklace and a ring. He further testified that there were present at the Enyart home, when he brought the stolen plunder from the Bennett apartment, besides Mrs. Enyart and himself, Mrs. Champagne, Sybil White and the defendant; that he showed Cummins an account of the robbery as printed in the paper, and at the time Cummins gave him a duplicate or skeleton key, with the remark, “he thought I could use it.” Franke then described the robberies of the other persons heretofore set out.

Franke testified to various meetings and conversations with defendant, in regard to the loot which had been stolen, and in both direct and cross-examination said he had made an agreement with defendant by which the latter was to designate the houses which were to he robbed, and that after robbing these places he divided the plunder with defendant, as heretofore stated.

In the brief of defendant’s counsel he describes Franke as follows: “After having introduced evidence of the other burglaries referred to, the State placed upon the witness stand George Franke, then confined in the State-Penitentiary upon a plea of guilty to burglaries committed in the latter part of 1915 and the first part of 1916. Franke was a professional burglar. He took' an early course in crime, starting as usual with self-instruction, then entering the reform schools and from there graduating into several penitentiaries. He testified to having returned to St. Louis in December, 1915. He immediately began burglarizing houses. He continued in this course until June, 1915, when after the Bennett rohhery, referred to in the indictment, he was arrested, following which he pleaded guilty and was sent to the penitentiary. During his six months’ sojourn in St. Louis he testified that he burglarized between 150 and 175 different houses. Among the houses so burglarized were the ones hereinbefore referred to.”

Mrs. Christie Scott, and her son, Charles Tilley, testified that they were introduced to Franke and Sybil White by defendant at the home of Mrs. Enyart.

William Howe, who conducted a grocery store over which Franke and the White woman lived at 3724 Pen-rose Street, testified that he heard some one going up the back stairs a few nights after Franke was arrested, and that the person left the rooms with a bundle under his arm. Franke testified that defendant told him about having left the place above described with the valises and goods.

Richard Kent, a chauffeur testified, that he- had driven defendant to 3740 Olive Street three times at night, and that the defendant would go to the second floor, put his head out of the window and remark, “All right Dick,” which was a signal for the witness that he did not desire him to wait longer.

Wm. Brinkmeyer and Thomas Combs, both of whom had been employed as waiters at Dick Campbell’s cafe at Grand and Olive Streets, stated they had seen defendant at the Campbell place a number of times ill company with George Franke and Sybil White.

According to the evidence of Edward Jarvis, the janitor, at police headquarters, defendant had frequently sent packages to George Franke and Sybil White while they were confined in the jail, and defendant had given him to understand that he was not to say anything about it to anybody.

According to the evidence of C. L. Ferricks, while defendant was assigned to the record room at police headquarters he had access to the records and reports made by various policemen of burglaries and other crimes.

Sybil White testified that she commenced living with George Franke in December, 1915, and described the places heretofore mentioned where they resided. She said that she met defendant while at Mrs. Enyart’s place, and that George Franke, Mrs. Enyart and defendant were together almost every night; that while living at the Olive Street address, when Franke would come in after burglarizing a home, they would divide up the stuff and give Eay and Mrs. Enyart their pick out of everything; that she had heard defendant tell Franke where to go a number of times and remarked that he would watch the police headquarters ’ so as to notify him. She said that defendant had a key to the room where they were living and visited there almost every evening; that the plunder would be divided either there or at Mrs. Enyart’s. Frequently the entire crowd would visit cabarets after the spoils had been divided. She testified that defendant visited her at the jail and assured her that he had gotten considerable of the stolen goods that was in the room at 3724 Penrose Street out of the place after their arrest.

Other testimony in behalf of the State was given along substantially the same lines.

The defendant testified, in his own behalf, that he had been a member of the police force for more than ten years and had been dismissed for taking up a collection among the police force for the purpose of defraying the expense of securing the passage of a legislative measure to increase the salary of police officers by the 1917 General Assembly, which was in violation of a rule of the police department. He admitted that he knew George Franke, and had, at the latter’s request, referred him to Mrs. Gray’s rooming house at 3740 Olive Street.. He said that he had frequently seen Franke while performing his duties as traffic officer at Grand and Olive, and had gone with Franke to purchase a cigar, both at the Metropolitan Store and Campbell’s Cafe, and also met him twice at Mrs. Enyart’s place. Defendant, however, denied that he had ever directed Franke to any house to be burglarized, and denied that he ever received any loot or stolen plunder from him, and denied that he had an agreement of any kind to share in the fruits of his ill-gotten gains. He explained his visits to the jail, after the arrest of Franke and Sybil White, by saying that it was in response to a note which he had received from Franke, and he had sent over to them by Jarvis some old clothes so that they might present a neat appearance when taken to court. He further admitted that he frequently went to Franke’s rooms at 3740 Olive Street but said that his purpose in going there was to visit Sybil White.

Davis Israel, Patrick J. Gaffney, Lawrence P. Walsh and Hugh Murphy took the stand, and each testified that the reputation of defendant for truth and veracity and as a law-abiding citizen was good.

•Joseph J. Crites testified, in behalf of defendant, that he had been employed by the Police Relief Association of St. Louis, to further the interest of the bill pending' before the Legislature to increase the salaries of police officers, and stated that he met defendant Cummins in Jefferson City in March, 1917, during the session of the Legislature, and that they went to the penitentiary together. He denied the conversation testified to by George Franke in respect to what occurred at the penitentiary.

• The defendant, in his own behalf, denied any knowledge of Franke being a burglar until the latter’s arrest; denied that he had ever received any of the stolen property which Franke said he had received; denied the testimony of Franke and Sybil White, to the effect that defendant had advised, counseled or assisted Franke, in any way, in his unlawful practices.

Defendant’s evidence shows that he had been elected and re-elected several times as secretary of the Police Relief Association and had handled its money faithfully. The character witnesses aforesaid testified that defendant had the reputation of being a good officer.

The case was submitted to the jury under the evidence and the instructions of the court. Defendant was found guilty, as heretofore mentioned and appealed the case to this court.

I. The first error assigned by appellant reads:

“The court erred in admitting evidence of other burglaries than the one specified in the indictment.” Under this proposition defendant cites: State v. Daubert, 42 Mo. 242; State v. Spray, 174 Mo. 569; State v. Boatright, 182 Mo. 33.

In the Daubert case, supra, the evidence, in regard to other crimes than the one designated in the indictment, is not set out. Wagner, J., upon page 246, said: “Upon the trial of an indictment for larceny, evidence of the commission of a separate and distinct larceny from that charged is inadmissible. [State v. Goetz, 34 Mo. 85.] But where the evidence offered directly tends to prove the particular crime charged, it is to be received, although it may also tend to prove the commission of another separate and distinct offense. [State v. Harrold, 38 Mo. 496.] To admit the evidence, there must be a connection or blending which renders it necessary that the whole matter should be disclosed, in order to show its bearing on the issue before the court.”

In passing upon this question, it is well to keep in mind that in the above case the State was offering to show that defendant had been guilty of other and independent crimes, while in the case at bar, the owners of the property testified as to the burglary and larceny, followed up by the testimony of Franke, the alleged accomplice of defendant, that he had burglarized the residence of said parties, stolen therefrom the plunder mentioned in evidence, and divided the same with defendant under their previous arrangement. The State was attempting to show a conspiracy between Franke and defendant which had for its purpose the commission of said burglaries and larceny, as well as the division of the proceeds of same. Among other things the State endeavored to show that Franke had been for years a notorious burglar and thief; that defendant on account of his intimate relation with Franke, and those associated with him, must have known of the business in which he was engaged and actively aided him in pursuing same. On the other hand, the defendant’s counsel examined Franke Avith reference to various burglaries and larcenies committed by him outside of St. Louis and outside of the State of Missouri. In other words, defendant undertook to show that Franke was such a notorious thief and burglar that no. jury ought to give credence to his testimony.

Defendant’s objection to this class of evidence arose in this way. The State had introduced testimony of the burglarizing of the Bennett, the Wiemeyer and the Dieckmann homes, without any evidence of the defendant’s connection with the burglaries and larcenies, and Avithout objection from defendant. When Abrams was introduced as a witness to show the burglarizing of his home, the defendant’s counsel for the first time objected to the introduction of evidence relating to other burglaries than that described in the indictment, and moved to strike out that part of the testimony which did not relate to the Bennett indictment. This objection was overruled, and the State was permitted to prove that Franke committed each of said burglaries and larcenies, which Avere objected to, and sought to be stricken out. If the evidence thus produced by the State failed to connect defendant with these burglaries and larcenies, the admission of same did him no harm, for it furnished testimony in behalf of defendant, tending to blacken the reputation of Franke, and prove him to be unworthy of belief. If, on the other hand, after the State proved the commission of said burglaries and larcenies by Franke, there was evidence tending to show that defendant received a part of said plunder, it was' for the jury to determine from all the facts and circumstances in evidence whether it was so received by virtue' of a previous arrangement with defendant.

The Spray and Boatright cases, cited by defendant, are in line with the Daubert case, supra.

The facts heretofore set out, in our opinion, sustain the action of the trial court when considered in the light of our rulings upon this subject. [State v. Lewis, 273 Mo. l. c. 530, 201 S. W. 80; State v. Patterson, 271 Mo. l. c. 109; State v. Spaugh, 200 Mo. l. c. 594; State v. Bailey, 190 Mo. 280; State v. Collins, 181 Mo. l. c. 260-1; State v. Myers, 82 Mo. 558; State v. Othick, 184 S. W. l. c. 108.]

In State v. Spaugh, 200 Mo. l. c. 594, Gantt, J., very clearly states the law of this State, in respect to above subject, as follows: “There is no doubt that it is a general rule of criminal law in this State that evidence of separate and isolated crimes cannot be given against one on trial for a specific crime, but it is equally well established in this State that proof of another crime than the one for which the defendant is on trial is competent to prove the specific crime charged when it tends to establish the motive, intent or absence of mistake or accident or the identity of the person charged with the commission of the crime on trial. [State v. Collins, 181 Mo. l. c. 260, 261.] ” .

In State v. Bailey, 190 Mo. l. c. 284, we said: “Hence, as already 'said, we think this evidence was competent to establish the identity of the defendant as the person who committed the crime; to show that it was intentional and willful, and-to show that he was one of a band organized together to commit crimes of the kind charged, and to connect the offense with which he is charged in this case as a part of a common, unlawful and felonious scheme.”

In State v. Othick, 184 S. W. l. c. 108, we said: “ Appellant contends that the court erred in admitting over his objection the evidence as to the larceny of the Brightwell and Holmes automobiles. We are unable to. agree with this contention. From the evidence it appears that the theft of these ears was but part of the ‘common scheme or plan embracing the commission of two or more crimes, so related to each other that proof of one tends to establish the other. ’ The evidence therefore was clearly admissible. [State v. Bailey, 190 Mo. l. c. 280, 88 S. W. 733; State v. Hyde, 234 Mo. l c. 226, 136 S. W. 316, Ann. Cas. 1912D, 191.]”

The other cases heretofore cited are in accord with above quotations. We accordingly . overrule this assignment of error.

II. Appellant’s second assignment of error, reads as follows: “The court erred in admitting-evidence of the burglary of the Abrams house which occurred prior to the time that Franke be,came acquainted with the defendant and prior to the time when it is claimed the conspiracy between Franke and the defendant was formed.”

This contention is without merit, for the following ■reasons: (a)' The objection was made when Abrains was on the stand that it did not appear up to that time ‘that defendant was connected with any of the burglaries, except that of Bennett’s. Neither Franke, nor Sybil White, had then been examined' as witnesses. The court could not anticipate at that time what the evidence would be in the way of connecting defendant with -the burglaries, and properly overruled the objection then made. Now, on cross-examination of Franke, he stated that he had robbed either the Dieckmann home or the Abrams home on the same day, but before he first met defendant. After making this discovery, defendant did not then ask' the court to exclude the testimony of .’either Dieckmann or Abrams, which had been formerly admitted, ■ but let it stand ' on his original objection, ¡which was properly overruled when made, (b) The .evidence as to the Dieckmann and Abrams burglaries was. competent, for the reasons stated in the preceding .proposition', and because Franke testified that he diJvided the loot which he got from, both homes, under .the agreement which- they made that night.

In view of the foregoing, defendant’s contention, supra, was properly overruled.

III. The third assignment of error, reads as follows: “The court erred in not requiring the State to elect at the close of the case whether it would stand uP°n ^ first count (burglary and larceny) or the second count (receiving stolen property).”

If the jury believed from the evidence that there was a conspiracy between Franke and defendant to burglarize the Bennett home and to divide the loot stolen therefrom, then the verdict reached in this case was proper. If, on the other hand, the jury had found in favor of defendant as to the conspiracy, but had been satisfied from the evidence that' he had accepted from Franke the goods stolen from Bennett, knowing them to have been stolen, he might have been acquitted of the burglary and larceny, and convicted of receiving stolen property. The evidence was comprehensive enough to cover both issues and, hence, the court committed no error in refusing to sustain defendant’s motion to require the State to elect, whether it would stand upon the first or second count of the indictment. It correctly declared the law, in respect to this matter, in its instruction numbered seven, which is amply sustained by the decisions of this court. [State v. Pace, 269 Mo. l. c. 686; State v. Christian, 253 Mo. l. c. 393; State v. Carragin, 210 Mo. l. c. 366; State v. Miller, 67 Mo. 604; State v. Green, 66 Mo. l. c. 644; State v. Sutton, 64 Mo. l. c. 108; State v. Daubert, 42 Mo. 242.]

The trial court was within the law in overruling defendant’s motion to elect, etc., and properly informed the jurors as to their duty in respect to this subject.

IV. Defendant’s fourth assignment of error, reads as follows: ‘ ‘ The court erred in instructing the jury that it might find defendant guilty upon the uncorroborated testimony ox an accomplice (in this case George Franke and Sybil Brown).” Appellant cites in support of above contention, State v. Wilkins, 221 Mo. 444.

We are not advised in tbe above assignment of error, which instruction or instructions the defendant is complaining of, but herewith set out the two given by the court, numbered nine and ten, which read as follows:

“9. The court instructs the jury that one accomplice cannot, as a witness, corroborate the testimony of another witness who is an accomplice.
“10. The court instructs the jury that they are at liberty to convict the defendant on the uncorroborated testimony of an accomplice alone if they believe the statements as given by said accomplice in his testimony are true in fact and sufficient in proof to establish the guilt of the defendant; but the jury are instructed that the testimony of an accomplice in crime, when not corroborated by some person or persons not implicated in the crime, as to matter material to the issues, that is, matters connecting the defendant with the commission of the crime charged against him and identifying him as the perpetrator thereof, ought to be received with great caution by the jnry, and they ought to be fully satisfied of its truth before they should convict the defendant on such testimony.”

There is nothing in the Wilkins ease which is antagonistic to either of the above instructions. That numbered ten has been in terms approved by this court in State v. Bobbitt, 215 Mo. l. c. 42, where it is fully considered and the leading authorities in this State cited in support of the conclusion there reached. To same effect are: State v. Harkins, 100 Mo. l. c. 672; State v. Jackson, 106 Mo. 179; State v. Woolard, 111 Mo. 248; State v. Crab, 121 Mo. 554; State v. Dawson, 124 Mo. 422; State v. Donnelly, 130 Mo. 642; State v. Kosky, 191 Mo. l. c 9. The foregoing authorities clearly support the action of the court in giving said instructions.

V. Appellant’s fifth assignment of error, reads as follows: “Instruction No. 8-A given on behalf of the State was erroneous, in that it assumed that other burglaries had been committed and that this defendant had committed them, and the court erred in giving it.” The above instruction reads as follows:

“8-A. The court further instructs the jury that evidence of other burglaries and larcenies were admitted 'by the court solely for the purpose of determining whether a conspiracy, agreement and common design existed between the defendant and one George Franke to burglarize various dwellings in the City of St. Louis and steal goods, Avares and merchandise therefrom; and you are to consider this evidence for no other purpose, for you cannot convict the defendant of any other charge than the_ one for which he is now on trial.”

Defendant’s criticism of said instruction is not well founded. It does not assume “that other burglaries had been committed and that this defendant had committed them.” It simply told the jury “that evidence of. other burglaries and larcenies were admitted by the court solely for the purpose of determining whether a conspiracy” existed between defendant and Franke. There is nothing in the instruction which could be construed as an intimation of the court’s views of the evidence adduced. On the contrary, the jury were left to consider this question without' any expression of opinion from the court.

The instruction properly declared the law, and is sustained by the authorities heretofore cited under Proposition I.

VI. Defendant claims that the evidence was insufficient to sustain a conviction. In view of the full .Statement of facts heretofore made, we do' hot deem it neeessary to again go over this subject a.s it was the province of the jury to pass upon the facts, ■ under proper instructions of the court: ■ The latter tried the case, in ■ our opinion, with marked ability and fairness. The instructions covered every possible theory of the case in a satisfactory manner, and we do not find that defendant has any just grounds of complaint as to the merits of the controversy. We are of the opinion that on the facts presented in the record, the verdict as returned was supported by the testimony and is within the purview of the law.

The .judgment below is accordingly affirmed.

White and Mosley, CG., concur.

PER CURIAM:

The foregoing opinion of Railey, C., is adopted as the opinion of the court.

All of the judges concur; Faris, J., in result. .


author: MOZLEY, C. PER CURIAM:

text:
    MATTIE BELLE BENNETT v. CITY OF NEVADA, Appellant.
    Division Two,
    July 5, 1919.
    1. EJECTMENT: Ouster: Improvement of Street: Verbal Direction: Trespass. In ejectment against a city for a strip of land, wherein the answer is a general denial, the burden is upon plaintiff to prove that the city was in the wrongful possession of the land at the time the action was brought; and the mere act of the street commissioner in going upon said strip and grading it for street purposes, in obedience to a verbal instruction of the city council, is not the act of the city, and is not sufficient to establish wrongful possession by the city or to maintain ejectment against it, but amounts to no more than a trespass by him.
    2. -: Street Improvement: Ordinance Necessary. In order to establish, open, extend or alter a street the mayor and city council must by ordinance provide that such improvement shall be made; a mere resolution or verbal motion by the council, instructing the street commissioner to improve a named strip of land, though unanimously adopted and made a matter of record, is void and does not bind the city, and if in obedience to .it the street commissioner enters upon the land and grades it for street pur, poses, his act amounts to no more than a trespass, for which he and possibly those acting with him are liable in damages for the injury done the owner.

      Appeal from Vernon Circuit Court. — Hon. B. G. Thurman, Judge.
    Reversed.

      A. C. King and M. T. January for appellant.
    (1) Ejectment must be brought against a party-in possession, and plaintiff must allege in his petition that defendant is in possession, and must prove it when defendant denies possession. Clarkson v. Stanehfield, 57 Mo. 573; Shaw v. Tracey, 95 Mo. 531. (2) A city can open or establish streets only by ordinance. R. S. 1909, secs. 9261, 9262. (3) When the statute prescribes that the powers of a city may be exercised by the passage of an ordinance, no other method is allowable. Rumsey Mfg. Co. v. Schell City, 21 Mo. App. 175. (4) A municipality can only be held responsible for the act of its officers when the act is authorized by ordinance, in cases where the city, as a corporation, has power to- authorize action only in that -way. Stewart v. City of Clinton, 79 Mo. 693; Werth v. City of Springfield, 78 Mo. 107; Reed v. Peck, 163 Mo. 333.

      Chas. E. Gilbert for respondent.
    (1) The owner of land wrongfully taken by a city and converted into and used as a public street, may maintain ejectment against the city for its recovery. Armstrong v. City of St. Louis, 60 Mo. 309, Anderson v. City of St. Louis, 47 Mo. 484; Walther v. Warner, 25 Mo. 277; Hammerslough v. City of Kansas, 57 Mo. 221; Warner v. Railroad Co., 57 Mo. 275; Evans v. Railroad Co., 64 Mo. 453; Bradley v. Mo. Pac. Ry. Co., 91 Mo. 500; McCarty v. Clark County, 101 Mo. 182.
   MOZLEY, C.

This action is ejectment, with ouster laid on the - day of July, 1915,' and is brought against the City of Nevada alone as defendant.

The real estate involved is described as follows: “Commence at the southwest corner of the east half of Lot two of the northwest quarter of Section Four, in Township Thirty-five, Range Thirty-one, in the City of Nevada, County of Vernon and State of Missouri, from thence run north twenty rods, thence east twenty rods, and from the point thus found as a place of beginning, 'run north ninety feet, thence east one hundred and sixty feet, thence south ninety feet, thence west one hundred and sixty feet to place of beginning.” It will thus be seen that the lot is one hundred and sixty feet east-and-west and ninety feet north-and-south. The particular part of the lot involved here is twelve of fifteen feet off of the south end thereof, which lies between Main and Ash Streets. Plaintiff claims that the defendant city, on the date above set forth, ousted her from the possession thereof, and took the possession itself, and that the street commissioner, acting for the city,- as it is alleged, did great damage thereon by plowing and grading the soil. The answer of defendant was a general denial. The case was tried before a jury in the Circuit Court of Vernon County, at the February term, 1917, which resulted in a verdict for plaintiff for possession of the land in controversy and fifty dollars damages, and monthly rents and profits fixed at $1.50 per month, upon which verdict judgment was duly entered. Motion for new trial being overruled at the same term of the court, defendant duly appealed the case to this court.

About June 15, 1915, at a meeting of the city council of defendant, it was verbally moved, seconded and carried “that the street commissioner, under the supervision of the city engineer, be instructed to put Floral Avenue, between Main and Ash streets (the strip in controversy) in proper condition.” Counsel for both sides agree that no ordinance was passed authorizing the work to be done. Counsel for plaintiff proved by the the city clerk that the City of Nevada had never passed an ordinance with reference to this street, this with the view of relying upon the verbal motion or resolution above sel forth, upon which predicate he seeks to bind the corporation. Mr. January, for the city, made the following objection in the nature of consenting to the correctness of the proof offered by plaintiff that no ordinance had ever been passed:

“Well,'I will get my objection in. The defendant objects to the introduction of the minute book of the council in evidence,- for the reason that it already, appears in evidence that the city of Nevada never passed any ordinance opening or ordering opened any street over the ground in controversy.”

As above stated, the answer of defendant was a general denial, which placed the burden on the plaintiff to prove that defendant (the corporation) was in the wrongful possession of the strip of land in controversy at the date of the institution of this suit.

Plaintiff contends, as we understand the position of her counsel, that the act of the street commissioner in grading the strip of land involved was the act of defendant (the corporation), and that on account thereof ejectment can be maintained against it. We’ are unable to agree with this contention. We think, and so hold, that the act of the street commissioner in grading said strip of land was done without authority and was, therefore, not binding upon defendant, because, as the record discloses, no ordinance was passed by the legislative department of the city authorizing any one to go upon plaintiff’s lot and do grading or do any other act calculated to damage the property.

It has been held by this court, in harmony with the express provisions of the statute,.that in order to establish, open, extend or alter any street, avenue ,etc., the mayor and board of aldermen shall provide by ordinance that such improvement shall be made. In other words, the adoption of the ordinance is the first step toward making the improvement and unless that. step is taken in the legal way, the proposed improvement cannot be legally made. A mere resolution or verbal motion by tbe city council to make such improvement is'absolutely void, and could not bind the city, and tbe act of tbe street commissioner in going upon tbe land in question and grading it without tbe consent of tbe owner amounts to no more than a trespass on bis part, for which be and possibly those assisting him rendered themselves liable in damages for tbe injury done tbe plaintiff. [R. S. 1909, secs. 9161-9162; Reed v. Peck, Guitar and Watson, 163 Mo. 333, l. c. 338; Wheeler v. City of Poplar Bluff, 149 Mo. 36, l. c. 45-46; City to use v. Eddy, 123 Mo. 546, l. c. 558-559.]

We think it is clear that, under this record, ejectT ment cannot be maintained against tbe defendant city. Having reached this conclusion, it will not be necessary to notice other points made by appellant. Tbe demurrer requested by appellant at tbe close of tbe case ought to have been sustained. Let tbe judgment be reversed.

White and Railey, GG., concur.

PER CURIAM:

Tbe foregoing opinion of Mozley, C., is adopted as tbe opinion of tbe court.

All of tbe judges concur.