author:
GRAVES, C. J. PER CURIAM.
      WOODSON, J.

text:
    In re LOIS E. READING et al., Appellants, v. DANIEL E. CHANDLER et al.
    In Banc,
    January 29, 1917.
    1. APPELLATE JURISDICTION: Vacating Private Road. A proceeding brought in the county court to vacate a private road previously established so involves title to real estate as to give jurisdiction to the Supreme Court of an appeal from the judgment of the circuit court.
    2. PRIVATE ROAD: Vacation: Necessary Showing. Under-the statute two things must be shown to authorize an order vacating a private road: first, that a public road has been established to which defendant has access, and, second, that such access is convenient and practical.
    3. -: -: Necessity or Necessity and Convenience. The statutes are somewhat broader than the rule announced in decisions and textbooks that private roads are ways of necessity, and when the necessity ceases the private way ceases, in that they say the private way is “to connect with some public road at some convenient point,” and that a private way may be vacated if it is made to ■ appear that the landowner has at the time “convenient and practical” access to his land from a public road. If the private way has been established at the expense of the landowner and affords him access to a public road at a “convenient” point, it cannot be vacated until it is made to appear that after its establishment a “convenient and practical” access to a public road has been brought about.

      Held, by WOODSON, J„ dissenting, with whom BOND and WILLIAMS, JJ., concur, that as the Constitution says that “no private property can be taken for private use, with or without compensation, unless by the consent of the owner, except for private ways of necessity,” private property can be taken by condemnation for a private way only when the way is necessary, and the right cannot be made to rest on convenience; and the statute authorizing the condemnation of land for a private way “to connect with some public road ... at some convenient point” means that the way must be one of necessity and so established as to connect with the public road at a convenient point, and does not mean that a private way can be established when convenient, but not necessary for access or egress; and as private property cannot be acquired by condemnation for one purpose and be held and used for another, a private way so acquired ceases .when the necessity ceases, and its vacation cannot be defeated on. a showing that, though not absolutely necessary, it affords a “convenient and practical” access to a public road; and if the statute so means it would be unconstitutional, for it would be to authorize the landowner to acquire a permanent use in land without just compensation, since in acquiring the private way he paid for only a temporary use.
    4. -: -: -: Increased Travel. Since the establishing of a private way from a public road to defendant’s dwelling on the southern portion of his property, another public road which is a mere cul de sac has been established, which reaches his land a half mile north, and to reach his usual trading point by it, he would have to travel' about a half mile north, then east along the cul de sac road a like distance, and then south a half mile, before reaching a point on the main public road touched by the. private .road. Held, that, in determining whether the access afforded by the cul de sac road is “convenient and practical” the location of defendant’s; dwelling, as well as all other facts, must be considered, and also the fact that the owner was compelled to pay damages for the present private way; and under the facts, the private way should not be vacated.

      Held, by WOODSON, J., dissenting, with whom BOND and WILLIAMS, JJ„ concur, that the evidence shows that the private way has ceased to be a way of necessity, and is only a way of convenience, and should be vacated.
    Appeal from Pike Circuit Court. — How. B. H. Dyer, Judge.
    Affirmed.

      Pearson & Pearson for appellants.
    (1) It is now well settled law of the various states, that a cul de sac may be a highway; or, in other words, that it is not essential that a highway be open at both ends, to form a thoroughfare; but, it may be closed at one end by private lands or building. 15 Am. & Eng. Ency. Law (2 Ed.), p. 351; 2 Words & Phrases, p. 1779; Patton v. Forgey, 171 Mo. App. 1; Sec. 10456,.-R. S. 1909. (2) The judgment of the county court- establishing the public road referred to in the pleadings and the evidence, was conclusive and binding on the trial judge; and was not subject to collateral attack, on a hearing, in a matter to vacate this private road. State v. Schinkle, 129 Mo. App. 237; Halter v. Leonard, 223 Mo. 292 ; New Madrid County v. Phillips, 15 Mo. 65. (3) A public road having been subsequently dedicated, established and opened up to respondents’ land, which.furnishes them a “convenient and practical access thereto, from a public road, without crossing the lands of others,” entirely obviates the necessity for the private road in question; and the plaintiffs have an absolute right to have it vacated, (a) The private road in question, petitioned to he vacated by the plaintiffs, was simply a way of necessity ; and was so established. Art. 2, sec. 20', Mo. Constitution; Chandler v. Reading, 129 Mo. App. 69. “A way by necessity, in whatever manner it may have originated, is not extinguishable while its use is requisite, hut ceases with the necessity which created it, and is suspended by a temporary cessation of the necessity.” • Sec. 10458, R. S. 1909; Yossen v. Dautel, 116 Mo. 385; Cox v. Tipton, 18 Mo. App. 450; Tiedeman on Real Property (1885 Ed.), sec. 609, p. 472; 23 Am. & Eng. Ency. Law (2 Éd.), p. 44. (h) Respondents’ plea and contention is, that a vacation of this private road must he made, if made at all, upon the condition that he he refunded what he paid for the establishment of this private way of necessity; in other words, his contention is, that he bought this private road. This position is untenable. First. Respondents only secured a right of passageway, across appellant’s land, for an uncertain length of time — just so long a time as there was no other way to get to their land, from a public road, viz.: only, until a public road was opened up to their land. They acquired no other right. They knew at the time they paid their money, that was all they were getting: Second. This public road, obviating respondents’ way of necessity, was dedicated, established and opened up to respondents’ land, without an effort on the part of. nor one dollar of cost to, respondents. Third. Appellant .Sparks has never been paid a cent by respondents, for taking and using his land, as a way of necessity. But, on the contrary, upon the establishment of this way of necessity, he was thereby forced, at his own expense to ■divide his farm; lose the use of a strip of ground twenty feet wide, all the way through it; building a fence on either side, at great cost to himself; and to submit to other great inconvenience, all for the benefit, use and pleasure of the respondents alone, without a cent remuneration. Fourth. Appellant Reading, upon the establishment of said private way of necessity, was forced, without any consideration for her rights or convenience, to divide, and open a lane through her pasture and feed lot; cut off her water supply for stock, from her pasture land; and either at great expense, build a line of fence, or abandon the use of a fifteen or twenty-acre tract of land, used exclusively as a feed lot and for water supply, and which said tract of land/ on account of its peculiar position and condition, although very valuable as a feed lot and for water in connection with the rest of her land, would, by being fenced off by itself, be rendered so inconvenient, that it would be unavailable and worthless for that or any other purpose. (4) Appellants should have this private way of necessity vacated absolutely and unconditionally; because they have secured the establishment of a public road from respondents’ land to a public road without any cost whatever to respondents.

      Hosteiterd Haley for repondents.
    (1) Before appellants are entitled to a judgment vacating respondents’ private road, it is obligatory on them to prove to the satisfaction of the court that a public road has been opened so as to give respondents “convenient and practical access” to their land “from a public road without crossing the lands of others.” Sec. 10457, R. S. 1909. (2) The alleged public road (the cul de sac) did not afford respondents “convenient and practical access,” etc. This was a question of fact for the trial court to determine from the evidence adduced.. The appellants had the laboring oar on this proposition. The burden of proof was upon them. They offered testimony on the subject. The finding of the lower court against appellants can be upheld upon the palpable fact that they failed to satisfy the court on this issue. Its conclusion on this question of fact cannot be interfered with by this court without doing violence to a multitude of authorities. (3) A cul de sac cannot under the Missouri statutes become a public road. A public road must be of public utility and public necessity. Secs. 10433,10437 and 10461, R. S. 1909. Before any strip of land can become a public road through the avenues of proceedings in the county court, the court must find affirmatively that such proposed road is one of public necessity and utility. In re Gardner, 41 Mo. App. 589; Strahan v. County Court, 65 Mo. 644; Mayes v. Palmer, 206 Mo. 293. A cul de sac can in no event be of public utility or public necessity. Hence it can in no instance be created as a public road.
   GRAVES, C. J.

This ease reached us from the St. Louis Court of Appeals, the certification being upon the ground that title to real estate is so involved as to invoke our jurisdiction rather than theirs.

The further salient facts are, that some time prior to this action Daniel C. Chandler, one of the defendants herein, presented a petition to the county court of Pike County, praying for a private -road of necessity over the lands of Luther F. Sparks and Lois E. Reading.' The prayer of his petition was granted and the private road duly established, but not until Sparks and Reading had invoked the judgment of the St. Louis Court of Appeals upon at least one question therein. [Chandler v. Reading et al., 129 Mo. App. 63.]

After the establishment of this private road there was an attempt to open a public road to Chandler’s land some half mile distance north of the private way. In this Lois E. Reading, L. F. Sparks, and Dr. D. M. Pearson appear to have been the leading spirits. A plat in defendant’s brief shows the situation of the matters in dispute, and for the exactness of the information which it furnishes we insert it here.

From this plat and from the evidence it appears that this alleged new rqad is a mere cul de sac, terminating at the east line of Chandler’s land, nearly a half mile north of the private way.

When this alleged public road was thought by the parties to have been established, Lois E. Eeading and Luther F. Sparks brought the present action in the county court to have the private road vacated.

Chandler had paid the damages awarded in the establishment of his private way, and it will be observed from the plat that in going from his home to Louisiana (his trading point) the private way is nearly a mile nearer than the alleged public road. On trial in the county court the petition of Eeading and Sparks to vacate the private road was denied, and upon appeal to the circuit court a like result followed. From the circuit court judgment, as stated, the appeal was taken to the St. Louis Court of Appeals, but that court has certified it here. This outlines the case. Other matters will be noted in the opinion.

I. The result of the action must be either to maintain Chandler’s easement over the lands of Eeading and Sparks, or to rid such lands of that easement. Our jurisdiction in such cases is clearly recognized by Brace, J., in Wells v. Harris, 137 Mo. l. c. 515, wkei.ejn pe approved the certificátion of that case from the St. Louis Court of Appeals, on the strength of the ease of State ex rel. v. Rombauer, 124 Mo. 596. The only difference between the Wells case, supra, and this is, that in the Wells case it was sought to establish the easement of a private way, whilst here it is sought to remove it. On the question of jurisdiction there is no distinction. We therefore retain jurisdiction.

II. This is a statutory fiction brought under section 10457, Eevised Statutes 1909. That section so far as applicable to the facts in this case reads: “If, at any time after a private road has been opened under the provisions of this article, a public road shall be opened so as to give to the owners and occupants of such tract or lot of land, as is contemplated by this article, convenient and practical access thereto from a public road, without crossing the lands of others, ... it shall be lawful for the county court to vacate such private road in the manner hereinafter provided. ’ ’

Under this statute two things must be shown before plaintiffs would be entitled to the vacation of defendant’s private road: (1) that a public road has been established to which defendant had access and (2) that such access was convenient and practical.'

There are many technical questions urged in support of the judgment nisi, but these we pass. Nor do we think it necessary to determine whether or not the alleged new public road was in fact legally established. If established it was but a cul do sac through which defendants might pass from the northern portion of their farm to the real public road to the east thereof. It was in view of a discussion of the statute that we included in our statement the plat of the situation.. Prom this plat it appears that the dwelling of the defendants is on the southern portion of their land; that the private way runs directly from this dwelling to the real public road; that to go to their trading point, .Louisiana, over the new public road, defendants would have to go north nearly a half mile and then come south the same distance, before reaching the point on the main public road touched by the private way. In other words, upon each trip to Louisiana he would have to travel practically one mile more than he would travel by the private way.- The evidence is conflicting as to which is the better ground for a road. Under the facts and the peculiar language of our statute should the judgment nisi be disturbed? We think not. It may be conceded that it has been announced in the text-books and the cases that private roads are ways of necessity, and when the necessity ceases the private way should cease. But these texts and cases aid us but little in this case, because we must deal with our own statutes. These statutes seem to have added some to the things requisite to put at an end a private way once established. Our statute for the establishment of a private road (Sec. 10447, R. S. 1909) provides that the person seeking such a way can apply for such a way “to connect with some public road . . . at some convenient point.” The idea of convenience runs through the whole matter like a silver thread. When we come to the statute (Sec. 10457, supra) under which this action is brought we find the same silver thread. There it is said the private way may be vacated if it be made to appear that the landowner has, at the time, “convenient and practical’’ access to his land from a public road. Mere access to a public road, under this statute, is not sufficient to authorize the vacation of a private road. Such access must be “convenient and practical,” and whether it is “convenient and practical” is a question for the trier of the fact to determine from the evidence. In determining this fact we think the location of the residence, as well as all other facts, must be considered. We must not lose sight of the fact that the Legislature, in placing this limitation in the statute, i. e., that the access must be “convenient and practical,” may have considered that the owner of the private way might have been compelled' to pay damages for his way, which in the first place connected with a public road at a “convenient point.” In other words, the legislative- idea, at least, was that his private way could not be disturbed until it appeared that after its acquisition a'“convenient and practical” access to a public road had been brought about. The question seems to be one of first impression, as I find no case construing this statute (section 10457), from this angle. Under the facts in this case, we are constrained to hold that plaintiffs failed to show that defendants had convenient and practical access to a public road, outside of their private way, and the judgment nisi should be affirmed.

Bladr, J., concurs; Woodson, J., dissents in opinion filed in which Bond, J., joins. There being no majority opinion, the cause is transferred to Court in Banc.

PER CURIAM.

The foregoing opinion of Graves. P. J., from Division, is adopted as the opinion of the Court in Banc.

Walker, Faris and Blair, JJ., concur; Woodson, J., dissents in an opinion filed, in which said dissenting opinion Bond and Williams, JJ., concur.

WOODSON, J.

(dissenting). — I dissent from the majority opinion for the reason that the right to establish a private road rests solely upon section 20 of the Bill of Rights, which provides “that no private property can be taken for private nse, with or without compensation, unless by the consent of the owner, except for private ways of necessity,” etc.

Prior to the adoption of the Constitution of 1875, of which said section 20 is a part, there existed in this State no means by which a private way could be established, however great the necessity therefor might have been, except by agreement of parties.

But wherever that right did exist, whether at common law, or under the constitutions and statutes of other States, it was always predicated upon the sole ground of necessity, not convenience, and the universal corollary to that right, namely, that when the necessity for the private road ceased to exist, the right to the road itself likewise ceased to. exist. All of the authorities so hold, as I understand them. That was the condition of the law when the Constitution of 1875 was adopted, and the framers thereof must have used the words “for private ways of necessity, ’ ’ in their ordinary meaning and common acceptation at that time. This rule of construction, both as to constitutional provisions and statutory enactments, is so well known that a citation of authorities in support thereof would he useless.

That being true, we will return to said constitutional provision: Private property shall not be taken for private use “except for private ways of necessity.”

This language excludes the right of one person to have a private road established over the land of another for his convenience merely; the road must be’ an absolute necessity, as provided for by the Constitution, to connect his private property with a public road. For illustration, suppose we transpose the facts of this case, and assume that the public road mentioned had been established as it now exists, prior to the date the private road was petitioned for, then could or would any court have held that said private road would have been a road of necessity, within the meaning of said constitutional provision? I apprehend not. While the private road in that case, as in this, might have been more convenient to Chandler than the public road, yet in no sense of the word could it have been seriously contended that its existence was necessary for his ingress and egress to and from his property.

It might also have been more convenient for Chandler to have had this farm located within a mile of Louisiana, his trading point, yet that was no more a necessity than to have a road a mile shorter.

That being self-evident, as it seems to me, the corollary thereto, as previously stated,' is that when the necessity for the private road ceased to exist, then the right to the road itself also ceased. This is also self-evident and conclusive of the question. [Vossen v. Dautel, 116 Mo. 379; Cox v. Tipton, 18 Mo. App. 450; Cooper v. Maupin, 6 Mo. 624; Goddard on Easements (Bennett’s Ed.), 267, 270; Nichols v. Luce, 24 Pick. 102; Washburn on Easements (3 Ed.), 233; Tiedman on Real Property (1884 Ed.), sec. 609, p. 472; 23 Am. & Eng. Ency. Law (2 Ed.), p. 44.]

In the Vossen-Dautel case, supra, Judge Black, on page 385, in speaking for this court on this question, used the following language:

“The principle of law is of old standing and well settled that a grant of a way is presumed to have been made whenever land has been sold which is inaccessible, except by passing over the land of the grantor or by committing a trespass upon the land of a stranger. It is founded on the further principle that when a grant is made, every right is also presumed to have been granted, without which the subject of the grant would be useless. [Goddard on Easements (Bennett’s Ed.), 266, 267; Wash-burn on Easements (3 Ed.), 233.]
“But it is equally well settled that the presumption of a grant of way of necessity does not arise where the person claiming it has access to his land. A way of necessity exists only where the person claiming it has no other means of passing from his estate into the street or road. One cannot have a way of necessity because it is more convenient than the way which he has. [Wash-burn on Easements (3 Ed.), 234, 235; Cooper v. Maupin, 6 Mo. 624; Goddard on Easements (Bennett’s Ed.), 267, 270; Nichols v. Luce, 24 Pick. 102.]
“Again, the necessity limits the duration of the right of way. The rule on this subject is thus stated by Washburn: ‘And so limited is the right of way of necessity in respect to its duration, that, though it remains appurtenant to the land in favor of which it is raised so long as the owner thereof has no other mode of access, yet the moment the owner of such a way acquires, by purchase of other land or otherwise, a way of access from a highway over his own land to the land to which the way belongs, the way of necessity is at an end; or, in other words, a way of necessity ceases as soon as the necessity ceases.’ [Washburn on Easements (3 Ed.), 235.]
“Applying these principles to the case in hand, it must be evident that plaintiff has no way of necessity. When he purchased the one hundred and forty-eight acres of Sullens there was a public road on and along the north side of the land so purchased, and, that being so, there can be no presumption of a grant of a way over the other lands still held by Sullens. It is one or two miles further to the Olive Street road by the Schuetz road than through the Sullens one hundred and two acres, and the Schuetz road is as yet a dirt road, while the Olive Street road is a rock road. These are all mere matters of inconvenience and do not lay any foundation for a right of way of necessity. There is some evidence tending to show that though the Schuetz road had been laid out by the county as far back as 1855, it was not opened up for travel until 1870. Conceding this to be true, still when it was opened up to travel the right to a way over the one hundred and two acres ceased. When the necessity ceased the right of way ceased.”

That case is supported by all of the authorities cited; in fact, our attention has not been called to any authority holding to the contrary, nor have we been able to find any such after a careful search. So in the Ianguage of the majority opinion filed in Division, it may truthfully he said: “It may he conceded that it has been announced in the text-books and cases that private roads are ways of necessity, and when the necessity ceases the private way should cease.”

Clearly that was the sense in which the Constitution used the words “private ways of necessity,” and the Legislature had no power to reduce the necessity for the road or its vacation to one of mere convenience; and in the absence of any provision to the contrary, it seems to me that the framers of the Constitution must have intended that when the necessity for the private way ceased the legal right to the way itself ceased also. But be that as it may, I know that is the rule the text-writers lay down, and the courts of other states hold, regarding similar statutes.

The words “convenient and practical” used in the statute authorizing the vacation of a private road, were used in the same sense in which the words, “to connect with some public road ... at some convenient point” are used in the statute authorizing a private way to be opened; that is, a convenient point within the limits of the necessity provided for by the Constitution, and when that necessity ceased to exist likewise the right to the road ceased to exist.

•It has been suggested that there is a legal distinction between the words “the right to acquire a private way of necessity” as used in the Constitution, and the right to hold, and enjoy the way after it has been acquired under the statute. If that be true, then, in my opinion, the statute would clearly be unconstitutional and void, for the obvious reason that property cannot be acquired by condemnation for one purpose and then be held and used for another. There is a difference between a public and private use. [Belcher Sugar Refining Co. v. St. Louis Grain Elevator Co., 82 Mo. 121, 101 Mo. 192; State ex rel. v. Dreyer, 229 Mo. 201, l. c. 238.]

By analogy and parity of reasoning it must follow that a strip of ground cannot be acquired by grant or condemnation for the purpose of a private road, one limited in duration and use, and without the consent of the original owner or an additional condemation, be converted into a public use and for an unlimited time; such are the distinctions between private and public ways as are made in the Constitution and statutes of this State. The former being limited in duration and usage is naturally acquired for less compensation than is a public road which is unlimited both as to duration and use. This rests upon the same principle that a life estate in land is not worth as much as the fee thereto, and for that reason it may be acquired for less money than the fee. The private way in the ease at bar was acquired by condemnation, and, of course, was obtained for a less sum than it could have been acquired by the respondents, had it been a public road, unlimited in duration and use. In the case at bar the appellant’s property was condemned for a limited time and purpose and the respondents are now trying to hold the same for an unlimited time and use; if successful in that attempt, then, in my- opinion, the latter would obtain an estate in the former’s land, the difference between a limited and an unlimited estate, without just compensation paid therefor, in violation' of both the State and Federal constitutions; also without due process of law.

I, therefore, dissent.

Bond and Williams, JJ., concur with these views.


source: Caselaw Access Project

author: FARIS, J.

license: Public Domain

text:
    THE STATE ex rel. DAVID A. MURPHY, Member of Board of Police Commissioners, v. CLARENCE A. BURNEY, Judge of Circuit Court, HIRAM W. HAMMIL et al.
    In Banc,
    January 29, 1917.
    1. POLICE COMMISSIONERS: Powers and Duties. The Board of Police Commissioners of Kansas City is created by statute, and its powers and duties are defined and limited by statute.
    2. -: Qualification to Hear: Complaints Against Officers. A police commissioner of Kansas City is not disqualified from sitting as a member of the board at the hearing of charges preferred by him against a police officer. The facts that he made the complaint and that the charges if found to be true may result in the officer’s removal, do not disqualify him from sitting as a member of the board, hearing evidence to support the charges, and taking part in the determination of the matter.
    3. -: Administrative Body. The Board of Police Commissioners of Kansas City in hearing complaints lodged against policemen for misconduct does not-sit and act in a judicial capacity, but in an administrative capacity.
    4. -¡Complaints Against Policemen: No Other Judicatory. The Board of Police Commissioners of Kansas City is the only body named in the statutes before whom complaints against policemen and police officers can be heard or tried; and the statute in requiring that “all complaints or charges filed by persons other than the commissioners, or police officers, shall be verified by the oath of the person filing such complaint or charges” contemplates that complaints or charges, to be tried by the board, may be filed by the commissioners themselves.
    Prohibition.
    Writ granted.

      Isaac N. Watson and John T. Harding for relator.
    (1) A court of equity has no jurisdiction to enjoin relator from sitting at the hearing. Secs. 9771, 9776, 9784, 9785, 9769, R. S. 1909. The statute created, not a judicial board, but an administrative board, prescribed its duties, prescribed the manner of organizing a police force, and an exclusive manner of removal. The only way to remove respondents Hammil and James is the one prescribed by the statute, and this way has been followed. Counsel’s contention that a police commissioner who files a charge against an officer is disqualified to sit at the hearing has no sure footing at law, and •would be impracticable and render the police department inefficient. The chief duty of a commissioner is to maintain peace and to suppress vice. The statute, section 9785, unquestionably provides for commissioners to file complaints. Shannon v. Magee, 66 N. Y. Supp. 849; State v. Police Commissioners, 16 Mo. App. 48; State ex rel. v. Bright, 224 Mo. 514. (2) A court of chancery has no jurisdiction to enjoin relator from hearing the charges. Hammil and James have their remedy at law. V'itt v. Owens, 42 Mo. 512; State ex rel. v. Aloe, 152 Mo. 480. (3) Relator is not required to plead to the jurisdiction of the circuit court before the petitions for this writ. State ex rel. v. Bright, 224 Mo. 526; State ex rel. v. Sale, 188 Mo. 496; State ex rel. v. Aloe, 152 Mo. 480.

      Robinson é Goodrich and F. R. Stivers for respondents.
    (1) It is well settled that prohibition lies only where the inferior court has no jurisdiction. Prohibition does not lie to correct errors. It matters not that the petition pending in the inferior court does not state a cause of action. The only question is one of jurisdiction. State ex rel. v. McQuillin, 260 Mo. 164; State ex rel. v. Mc-Quillin, 262 Mo. 256; State ex rel. v. Grates, 190 Mo. 540. (2) The theory advanced by the injunction suits was that, under the law, relator being the real prosecutor and having already prejudiced the guilt of officers Hammil and James, was disqualified-from acting as one of the triers of the charges filed against plaintiffs in those suits. In other words that in hearing said charges the members of the Board of Police Commissioners acted in a quasi-judicial capacity, and, generally, one cannot act in such capacity in his own case. Whether this be correct or not, Judge Burney’s court had jurisdiction to pass upon it, and to decide that it was or was not correct. If decided erroneously, the error could have been corrected on appeal. The rule is well settled that a court of equity has power to prevent by injunctive relief all such officers as relator from violating their official duties. State ex rel. v. Lucas, 236 Mo. 31; Stahlhut v. Bauer, 51 Neb. 68; Armitage v. Fisher, 26 N. T. Supp. 364. (3) The merits of the injunction suits not being involved herein are not open to discussion, but we submit a few remarks on that subject. We do not claim that relator was a judge. We do not deny that there is a difference between administrative boards and judicial tribunals. But we claim that where a member of a police board or other such board sits in the hearing of charges against one of its officers, he acts in a judicial capacity, and if he is not the sole member of the board, but there are other members able to act, and he is the real prosecutor, he cannot act and has prejudged the case. The principle which forbids a man to act as judge in his own case would apply. If there is only a single member of such a board, he can act both as judge and prosecutor, out of the necessity of the situation, unless the statute forbid. In the absence of such a prohibition, the necessity of the case would imply power to act in both capacities. This is the distinction. People ex rel. v. Board of Trustees, 39 N. Y. Supp. 607; People ex rel. v. Waldo, 212 N. Y. 156; People ex rel. V. Roosevelt, 23 N. Y. App. Div. 533; Reid v. Medical Society, 156 N. Y. Supp. 780. (4) The positions of respondents, Hammil and James, are property rights and they are entitled to have such positions protected by injunction when other persons conspire to interfere with th.eir enjoyment. Clarkson v. Laiblam, 178 Mo. App. 708; In re Heffron, 179 Mo. App. 639. (5) The better rule requires it to be made to definitely appear that the trial court has assumed jurisdiction before a writ of prohibition-can issue. It is in the discretion of the supervising court to refuse to grant prohibition unless the lower court has overruled the plea to its jurisdiction. State ex rel. v. Riley, 127 Mo. App. 479.
   FARIS, J.

This is an original proceeding in prohibition against respondent .Clarence A. Burney, as one of the judges of the circuit court of Jackson County, to prohibit him from taking further cognizance of certain suits by injunction brought by respondents Hiram W. Hammil and R. L. J ames, the object of which latter proceedings was to enjoin relator (who is one of the Police Commissioners of Kansas City) from sitting in the hearing of certain charges pending against said Hammil and said James before said commissioners.

■ As forecast above, respondents Hammil and James are members of the police force of Kansas City; Hammil being chief of police and James a captain of police therein. Prior to the commencement before respondent Burney of the injunction proceedings, certain charges were caused to be filed by relator' David A. Murphy in his capacity as a member of the Board of Police Commissioners of Kansas City, against respondents Plammil and James, which charges involved the official conduct of said last-named respondents as chief of police and captain, respectively. While separate actions were brought by Hammil and James, seeking to enjoin relator as aforesaid, it is not necessary to cumber the record with the allegations in both of these injunction proceedings. That brought by respondent Hammil, we take it, is a fair type of both, and it contains, after the formal allegations of the official character of plaintiff therein as chief of police and defendant as commissioner of police, respectively, the below allegations, to-wit:

‘ ‘ Defendant has caused to be prepared and filed with the Board of Police Commissioners aforesaid, complaints against plaintiff, charging him with conduct unbecoming an officer of the police department, and has caused said complaints to be set for hearing before said Board of Police Commissioners at two o’clock on the afternoon of Wednesday, December 6, 1916; and defendant threatens to and will, unless restrained by this court, take part as a member of said Board of Police Commissioners in hearing and deciding said complaint, at such time as they may be called up for hearing before said board.
“Some weeks ago defendant wrongfully, fraudulently, oppressively and wickedly conspired and confederated with one John P. Mullane and others, all of whose names he is now unable to state, to cause the dismissal and removal of plaintiff from his said position and office as chief of police of said police department, and as part and parcel of said conspiracy said complaints were prepared by said Murphy in his own handwriting, but said Murphy fraudulently, wickedly and oppressively used his position as said commissioner to coerce and force a probationary patrolman of said city to sign charges to be preferred against plaintiff, so that the true attitude and connection of defendant therewith might be concealed.”

The actions for injunctions filed respectively by respondents Hammil and James coming on to be heard before Judge Burney on December 6,1916, he issued therein a temporary restraining order and fixed December 9, 1916, for hearing the application for the issuance of a temporary injunction. Pending the hearing upon such injunction relator presented his petition to this court and we issued therein a provisional writ of prohibition, directed to Judge Burney, prohibiting him, till our further order, from hearing or proceeding further in said injunction suits. Thereafter Judge Burney filed herein his return; following which, relator filed a motion for judgment on the pleadings.

The case has been briefed and being a matter wherein both parties deem that the public interests require a speedy determination, it was submitted to us without argument ; an order entered herein making our provisional writ absolute, and the matter of filing a written opinion deferred till a more convenient season.

The sole proposition involved is whether relator Murphy, who caused to be filed the charges against respondents Hammil and James, is for that he caused the filing of said charges, disqualified from sitting as one of the Police Commissioners of Kansas City in the trial of said latter respondents upon such charges; relator taking the position that he is not so disqualified and respondents taking the position that he is disqualified. If he is disqualified then our preliminary writ herein should be quashed; if he is not, then such writ must be made absolute.

The Board of Police Commissioners of Kansas City consists of two members (who are appointed by the Grovemor) and of the mayor of that city, who is a member ex officio of such board. It thus appears as a matter of interest, without/perhaps affecting the point at issue, that there are two members of the board charged under the statute with the duty of trying the- charges against respondents Hammil and James, against whom no attack is made.

The Board of Public Commissioners of Kansas City is created by, and therefore “lives and moves and has its being” solely pursuant to statute. [Sec. 9771, R. S. 1909.] The duties of such Board of Police Commissioners are likewise prescribed by statute and are broad and comprehensive; as note the statute defining those duties, which reads thus:

“They shall at all times of the day and night, within the boundaries of the city, as well on water as on land, preserve the public peace; prevent crimes and arrest offenders; protect the rights of persons and property; guard the public health; preserve order at every public election and at all public meetings and places, and on all nublic occasions; prevent and remove nuisances on all streets, alleys, highways, waters and other places; provide proper police force at every fire for the protection of firemen and property; protect emigrants and travelers at steam boat landings and railroad stations; see that all laws relating to elections, lotteries and lottery policies, and to the observance of Sunday, and relating to pawnbrokers, intemperance, vagrants, disorderly persons, gambling and bawdy houses, and every other kind and manner of disorder and offense against the public health and good order of society are enforced,- and shall enforce all laws and ordinances which may be properly enforceable by such police force. ’ ’

In order to carry out the broad and onerous official burdens laid upon these commissioners, the statutes provide that such board is authorized and required to employ a permanent police force and it is given power to equip and arm the same in such wise as they may deem necessary. [Sec. 9776, R. S. 1909.] Relative to the manner of appointing and removing’ the members of such permanent police force and to guide and restrict the actions of such board in those behalves, it is further provided by statute that “they will in no .case and under no pretest appoint or remove any policeman, or officer of police, or other person under them, for, or on account of the political opinions or affiliations of such policeman, officer or other person, or for any other cause or reason than the fitness or unfitness of such policeman, officer or other person;” and to this end and substantially in the above terms the members of the board are required to make oath. [Sec. 9769, R. S. 1909.]

Touching the conditions under which the removal of any policeman, or of any officer of police, may be had, and the manner-and method of such removal, the statute among other things provides thus:

“Having served one year probationary service to the satisfaction of the board, such policemen and police officers may be appointed for an additional term of three years, and shall thereafter be subject to removal only for cause and upon complaint being made, or charges being preferred against them, a copy of which complaint or charges, setting forth the grounds thereof, shall be .given to such policeman not less than forty-óight hours prior to the time the complaint or charges are to be heard by the' board, and they shall have a right to appear before the board and be confronted by the witnesses against them, and to be defended by counsel, and the board, after hearing the charges, shall take a vote by yeas and nays, to be entered upon the records whether or not the charges have been sustained, and what punishment, if any, shall be imposed. If the charges are found by the board to be sustained by the evidence, the board may remove such policemen or police officers, or the hoard may, instead of removal, suspend, reprimand or impose a fine upon the policeman or police officer, and in case any fine so imposed is not paid, the same shall be deducted from the salary of such policeman or police officer. If complaint is made or charges preferred against a policeman or police officer, which, in the opinion of the board, does not constitute an offense of which the board should take cognizance, the board shall dismiss such complaint or charges.” [See. 9784,JR. S. 1909.]

It is clear we think, that the statutes governing the matter of charges and complaints against policemen and police officers, contemplate that charges may be filed with the Board of Police Commissioners, not only by private persons and individuals, but also by the Board of Police Commissioners, or by any individual member of such board. For we note in section 9785, Revised Statutes 1909, tbe provision that “all complaints or charges filed by persons oilier than the commissioners^ or police offi-> cers, shall be verified by the oath of the person filing; such complaint or charges.” (Italics ours.) Section 9784, supra, is the only section of our statute governing the police force of Kansas City which provides for the removal for cause and upon charges and complaints of policemen and police officers of such police force; and the hearing before the Board of Police Commissioners in said section provided for is the only hearing possible to, be had. So it follows, that if said board may not hear complaints lodged against policemen and police officers, there is no place, board or person before which or before whom such complaints can be heard or tried. It is likewise clear that in hearing such complaints the Board of Police Commissioners sit and act not in judicial capacities, but in administrative capacities. [State ex rel. Heimburger v. Wells, 210 Mo. 601.]

The Wells case, supra, was a hearing by the defendant therein, who was at the time the mayor of the city of St. Louis, upon a complaint against Heimburger, relator therein, as Commissioner of Public Buildings of the city of St. Louis. In such hearing upon charges filed, Mayor Wells was proceeding and acting under charter provisions, in all respects, so far as concerns the legal principle involved, similar to the statutes here under discussion. The point involved upon the appeal in the Wells case was identically the same question here confronting us, that is, whether the fact that the complaint was caused to be filed by an administrative officer who by charter was authorized and empowered to hear those charges, disqualified such officer from hearing the same. Passing upon this identical point Fox, P. J., in an opinion unanimously concurred in by Division Two of this court, said:

“As already stated, the charter provisions imposed the duty upon the mayor to see that the laws of the city and ordinances of the city are respected and enforced. In other words, it is made his duty to see that the officers appointed by him are not derelict in the discharge of their duties, and the mere fact that his secretary prefers the charges against one of the officers in one of the departments, or even if the mayor should make out the charge himself, it by no means follows that he is prejudiced or biased or has any other interest in the proceeding than to ascertain whether or not the charges are true. The mayor has certain duties imposed upon him and he is entitled to the presumption that he will conscientiously and in good faith discharge those duties. It certainly would be a very violent presumption that the mayor of a great city in the investigation of charges against officials acted from spite or any other improper motive. The only presumption that can be indulged, in the absence of any showing to the contrary, is that he is acting in obedience to the commands of the organic law of the city of which he is the chief executive.”

We do not think there can be any question but that the Wells case, supra, and the cases from this court in the Wells case cited and discussed, rule this one upon principle; nor have we any doubt that the reason of the thing points inexorably to the same view. For we have seen that by statute an onerous and broad duty is placed upon the Board of Police Commissioners of Kansas City, to provide a capable and efficient police force and to use that force in preserving peace and order in their city. We must assume that the individual members of the Board of Police Commissioners will honestly, properly and efficiently perform the duties saddled upon them by statute (State ex rel. v. Wells, supra; State ex rel. v. Walbridge, 119 Mo. 383), and which by solemn oath they have bound themselves properly, efficiently and honestly to perform. We have seen that the sole judicatory by which trials of charges against policemen and police officers may be had, is before this board itself, and that it may hear complaints filed as well by its own members as by other police officers and by private individuals.

Sad we opine, would be tbe condition, as regards peace and good order, of any city, as large as we judicially notice Kansas City to be, if its Board cif Commissioners had to sit quietly and supinely by until some private individual should take the trouble and initiative' himself to file charges against members of the police force, and personally to prosecute those charges before this board. It was a wise provision of the Legislature therefore which put the power, and in a way the duty, of filing these charges and complaints (should such be deemed necessary), in the very hands of those officers who are under their oaths charged by law with the providing and maintaining of an efficient police force. So we need not belabor the point further. The case cited above, so far as this jurisdiction is concerned, is directly in point, and if the rule in other jurisdictions (depending it may well be, upon other and different statutes and constitutional provisions), is different from that in this State, that is no concern of ours.

It follows that our provisional writ of prohibition issued herein against respondent Burney, should be made absolute. Let this be done.

All concur, except Bond, Blair and Williams, JJ., who do not sit.


author: REVELLE, J. PER CURIAM: GRAVES, C. J. FARIS, J.

text:
    THE STATE v. HENRY FINKELSTEIN, Appellant.
    In Banc,
    January 29, 1917.
    1. CAUTIONARY INSTRUCTION: Interest of Defendant as Affecting Credibility. It is reversible error to instruct the jury that, in determining the weight to be given to the testimony of a defendant in a criminal case, or to the testimony of his wife, when called as a witness in his behalf, they may take into consideration the fact that he is the defendant on trial, and the interest which they have in its result. The instruction singles out the defendant, or his wife, as a witness, is a warning by the court to the jury to consider his or. her testimony with suspicion and to be careful how they give credence to what either has said, and is an invasion of the right of the jury whose province alone it is to determine the credibility of a witness. Such an instruction has often been expressly condemned in civil cases, and as life and liberty are dearer in the eyes of the law than property it should also be condemned in criminal cases.

      Held, by FARIS, J., dissenting, with whom WILLIAMS, J., concurs (1) that the point that the giving of such an instruction was error is not sufficiently raised to be considered on appeal by the one assignment in the motion for a new trial that “the court gave the jury illegal and improper instructions over defendant’s objections,” because in a criminal ease the statute (Sec. 5285, R. S. 1909) requires the motion to “set forth the grounds or causes” for a new trial; and (2) that, while such instruction has sometimes been criticised as useless, it has, in numerous cases, for more than forty years, been held not to be reversible error, and the objection against it raises no new question.

      2: -: -: Statute. The statute (Sec. 5242, R. S. 1909) making the defendant or his wife a competent witness in his behalf and declaring that the fact that he is the defendant and on trial “may be shown for the purpose of affecting the credibility of such witness,” relates to matter of proof, and falls far short of authorizing an instruction singling out such witness and calling attention to such facts as matters that affect his or her credibility. The statute is one removing disabilities of witnesses, and is in substance and meaning the same as the statute (Sec. 6354, R. S. 1909) removing the disabilities of witnesses because of interest in civil cases.

      Held, by FARIS, J., dissenting, with whom WILLIAMS, J., concurs, that there is no precisely similar statute in the civil practice to Sec. 5242, R. S. 1909, but the civil statute is different in its history, provisions and even verbiage, and was enacted in 1855, and assumed its present form in 1865, and did not then, nor does it now, contain any words as to the competency of the spouse of a party to testify for him or her at the price merely of diminution of credibility; whereas, the criminal statute removing the incompetency of the defendant as a witness was enacted in 1877 and amended in 1879 so as to allow the spouse of the defendant to testify, and the two statutes cannot therefore be held to be in pari materia.

    Appeal from St. Louis City Circuit Court. — lion. D. D. Fisher, Judge.
    Reversed and remanded.

      T. J. Rowe, Thos. J. Rowe, Jr., and Henry Roive for appellant.
    (1) The trial court erred in refusing to instruct the jury on all the questions of law arising in the case and necessary for their information in reaching a correct verdict. Sec. 5231, R. S. 1909. (2) The. court erred in refusing to instruct the jurors on the law of self-defense, although requested so to do by the defendant. (3) The court erred in giving instruction number 7, telling the jury that the defendant and his wife were competent witnesses and their testimony should be weighed by the same rules that governed the testimony of other witnesses, with the exception that in passing upon it they should take into consideration the fact that the defendant was the defendant in the case and that witness Helen Finkelstein was' his wife, and the interest they had in the result. State v. Mintz, 245 Mo. 542; State v. Evans, 183 S. W. 1066; State v. Shaffer, 253 Mo. 338.

      Frank W. McAllister, Attorney-General, 8. P. Howell, Assistant Attorney-General, and Lewis H. Cook for the State.
    (1) The court did not commit error in refusing the instruction on self-defense for the reason that both the evidence of the State and the defendant’s testimony showed that such a theory was contradicted by the physical facts. State v. Nelson, 118 Mo. 127; State v. Pollard, 139 Mo. 228; State v. Hamilton, 170 Mo. 382; State v. Fraga, 199 Mo. 136; State v. Vaughan, 200 Mo. 22; State v. King, 203 Mo. 570; State v. Arnold, 206 Mo. 600; State v. Tucker, 232 Mo. 18.; State v. Hearney, 177 S. W. 307. (2) Under the condition of the record in this case any insufficiency in instruction number 7 is not available as a ground for reversal. State v. Gifford, 186 S. W. 1060; State v. McBrien, 265 Mo. 605; State v. King, 194 Mo. 481; State v. Douglas, 258 Mo. 296; State v. Kapp, 187 S. W. 1180; State v. Gilbert, 186 S. W. 1003. (3) If, however, the court should hold-that instruction number 7 is properly saved for review, then we submit that the giving of such an instruction does not, under the facts of this case, constitute reversible error. State v. Maguire, 69 Mo. 197; State v. Shaffer, 253 Mo. 338; State v. Creeley, 254 Mo. 396; State v. Hyder, 258 Mo. 231; State v. Evans, 183 S. W. 1067.
   REVELLE, J.

So much of the evidence as is pertinent here is: The defendant is a married man; on September 12, 1915, his wife absented herself, going to a hotel, where she took up residence with the deceased and a woman with whom he was unlawfully cohabiting, all occupying the same room. On the night of the 12th of September, 1915, the deceased brought a man by the name of Belrose to the room, evidently for the purpose of illicit relations with the defendant’s wife. This she resentéd, and as a result of the disturbance which ensued, the deceased was required to leave the hotel. The following day the two women and the deceased removed to another place. Shortly thereafter the defendant called upon Belrose and made threats against both the deceased and Belrose. The deceased was informed of this and thereupon stated to the defendant’s wife that he and Belrose were going to kill the defendant. On the same night, the defendant and the deceased met, and the deceased made two unsuccessful attempts to discharge his pistol at and against the defendant. On that night and at about one o’clock thereafter, the deceased told the defendant’s wife that had his pistol discharged as he had intended, the defendant would then be dead. This information was communicated by the wife to the defendant. On the following day the defendant and the deceased met at 22nd and Olive Street, the deceased inquiring whether the defendant really desired to ascertain the whereabouts of his wife. • Upon receiving an.affirmative reply, the defendant and the deceased walked a short distance, when the shooting took place. The State’s evidence discloses that the defendant shot twice while the deceased was running from him, both of which struck the deceased in the back, and either of .which was fatal. The defendant’s evidence tended to show that immediately prior to the shooting, the deceased, after indulging in certain profanity, pulled from his pocket a pistol, which was instantly seized by the defendant, and that the same was thereupon twice discharged.

I. If the judgment in this case cannot be upheld it is because the court did not submit to the jury the alleged issue of self-defense, or because ^ §'ave a cautionary instruction as to the testimony of the defendant and his wife.

As to the first assignment, we start with the major premise that where there is substantial evidence of self-defense in a case, the defendant is entitled to an instruction upon that theory, even though such evidence comes wholly from the accused himself'. [State v. Weinhardt, 253 Mo. 629; State v. Bidstrup, 237 Mo. 273; State v. Richardson, 194 Mo. l. c. 344; State v. Arnett, 258 Mo. 259, 260.]

There is in this case, for the purpose of this point, ample evidence that the deceased had not only previously threatened, but had, a few days prior to the homicide, actually attempted to take the life of the defendant, his effort being unsuccessful merely because of the failure of his pistol to work as intended.

For some days the defendant’s young wife, having deserted her husband, had been living in rather questionable quarters with the deceased and his companion, and the deceased had importuned her to yield to illicit relations with at least one of his friends. The defendant, while seeking his wife’s whereabouts, came in contact with the deceased, who, after a short conversation, in which he reminded the defendant that he had intended killing him on a former occasion, drew a pistol, which the defendant instantly seized, whereupon the same was twice discharged. Had the testimony of the defendant here ended, there could be substantially no doubt as to the propriety and necessity of an instruction on self-defense, since we would have a case of former threats, an immediately prior deadly assault, a wicked motive and a demonstration oh violence clearly presenting the appearance of impending danger. With these facts in evidence. does the bare, bald statement of the defendant that the shooting was accidental, malicious, or in self-defense, become binding for tbe purpose of determining tbe law¶ Had the defendant followed bis statement of facts with tbe conclusion that he acted in self-defense the State’s argument against an instruction on this phase would be without basis, it being conceded that under such circumstances the instruction should have been given. Instead of this, be stated that the shots were accidentally fired, and it is upon this that the State relies in justifying the trial court’s refusal to give the instruction.

This argument, when reduced to its last analysis merely means, that after the facts have been detailed, the conclusion of the defendant thereon determines the law of the case. This is not tbe law of tbe land. There was other and ample evidence contradicting the defendant’s statement and tending to show that tbe shooting was not accidental, and unless this were true tbe verdict of guilty would have to be interfered with on other grounds. Tbe defendant testified that at the time of the shooting he was thoroughly excited, and under the circumstances, a normal man would be. Tbe jury might reasonably reject bis statement that the shooting was accidental, believing tbe other evidence on this phase, and yet believe tbe remainder of his and his wife’s testimony which tended to show that be was justified in acting in self-defense. With the facts before it, the jury was no more bound by the defendant’s statement that tbe shooting was accidental than it would have been had he bluntly stated that it was in self-defense. Of course if tbe State’s evidence as to all tbe facts and that the deceased was shot in the back is believed, there is no room for self-defense in the case, but, regardless of this, the defendant had the right to have the theory of his defense properly presented and definitely determined by the fact-tryers. It is our opjnion that an instruction on self-defense should have been given and that tbe failure of tbe court to submit this issue, requires a reversal of tbe judgment.

II. As with Banquo’s ghost, the question of the propriety of the cautionary instruction on the testimony • of the defendant and his wife, will not down. My views on this subject are fully expressed State Evans, 183 S. W. 1059, and to these I still adhere. While the instant case is one which to my mind comes near the danger line, it is unnecessary to determine the question in view of the error heretofore pointed out and because of which the judgment is reversed and the cause remanded.

PER CURIAM:

This opinion of former Judge Revelle, being up for consideration By the Court in Banc, the result of the same is adopted By such court.

Walker, J., concurs in first paragraph of the opinion and in the result; Graves, C. J., concurs in the result of the opinion in a separate opinion, in which separate opinion of Graves, G. J., Bond, Blair and Woodson, JJ., concur; • Faris, J., dissents in an opinion in which Williams, J., concurs.

GRAVES, C. J.

(concurring). — I think it is time that this court was making some clearly defined announcement upon the propriety of giving in criminal cases, an instruction like instruction > numbered 7 .involved here. That such an instruction has had the passive approval of this court in previous cases, goes without question. But it is equally true that it has met with much criticism. As a.trial judge I gave it, because of its tacit approval here, and not because of any sound legal reason for giving it. Many circuit judges have done and are now doing the same thing. When the matter was first presented to me here, in a dissenting opinion in State v. Barrington, 198 Mo. l. c. 126, I hesitated to concur with Vault ant, J., in his assault upon such an instruction. The hesitancy was not for lack of force in his reasoning, but on account of the line of previous criminal-case rulings. The civil-case rulings were not then firmly fixed. I therefore left thisviquestion out of consideration, and simply concurred with him upon three other grounds, naming them, leaving this ground of his dissent without myL approval or disapproval. [Vide 198 Mo. l. c. 133.] In the Barrington case, 198 Mo. 23, Vauliant, J., at page 126 said:

“If the jury were to weigh his testimony under the same rules as the testimony of the other witnesses was to be weighed, why single him out and caution the jury to bear in mind his interest and therefore (by implication) his strong temptation to testify falsely in his own behalf?
“There is no authority in our statute for such an invasion of the jury’s province. Section 2637, Revised Statutes 1899, which gives a defendant, or the wife or husband of a defendant, the right to testify in his behalf, says that the fact of the interest may be shown,- that is, proven, for the purpose of affecting his or her credibility, but that does not authorize the court to' single out the witness, whether it be the defendant or the defendant’s husband or wife, and comment on his or her testimony; in fact section 2639 expressly forbids the court to comment on the evidence. I am aware that instructions of like character in other cases have' been approved by this court, but I am not reconciled to them.”

The two sections here named are now sections 5242 and 5244, Revised Statutes 1909. It is hardly necessary to consider the latter section, if we give to the former a fair construction. The statute was one to remove disabilities. We have such statutes as to witnesses in civil cases. Section 6354, Revised Statutes 1909, so far as pertinent reads:

“No person shall be disqualified as a witness in any civil suit or proceeding at law or in equity, by reason of his interest in the event of the same as a party or otherwise, but such interest may be shown for the purpose -of affecting his credibility.”

We have here the clause, “but such interest may be shown for the purpose of affecting the credibility of such witness.” In section 5242, supra, the clause reads: “but any such facts [the fact of being the defendant on trial, or the husband or wife of defendant on trial] may be shown for the purpose of affecting the credibility of such witness.” In legal effect the two clauses are identical. If in criminal cases the court can point to a defendant or his wife, and tell the jury that they are, by the grace of the law, made competent witnesses, yet you must consider their interest in determining the credibility of their testimony, then by the same token the court, if requested by a party to the suit, would likewise have to point out by name some interested witnesses in a.civil suit, and give the jury the same caution. This because the two statutes are identical in legal effect. Yet in civil cases this form of an instruction has been specifically condemned. [Stetzler v. Met. St. Ry. Co., 210 Mo. l. c. 713.] This ruling had the unanimous approval of Division No. One. Not only so, but we have the unanimous opinion of Division No. Two, on a similar question in a civil case. [Montgomery v. Railroad, 181 Mo. l. c. 494] I had the-honor of trying that case nisi. The defendant offered the following instruction:

“While the plaintiff, Bertha Montgomery, is a competent witness in her own behalf, yet the jury in determining what weight, if any, they will give to her testimony, have a right to consider her interest in the result of this litigation; and what she has testified to against her interest, if any, is to be taken as true and what she has testified to in her favor is to be given only such weight as the jury may believe from all the evidence in the case it is entitled to.”

I refused this instruction, notwithstanding the fact that I had before me the then very recent opinion of Division No. One by Marshall, J., in which a similar instruction was held to be proper. It should be said the opinion was not agreed to by Valliant, J. I refer to case of Feary v. Met. St. Ry. Co., 162 Mo. 75. No case created more uproar among lawyers of the State than this Feary case, and Division No. One cured its own error in Stetzler v. Met. St. By. Co., supra, but not until Division No. Two had taken all the life out of the Feary case ruling in the Montgomery case, supra.

About tbe same time, as the trial judge, I again refused to give this same instruction-in Conner v. Railroad, 181 Mo. 397, and its refusal was again approved by Division No. Two of this court. The question was then a live issue after the ruling in Feary’s case. It was discussed from all angles, some circuit judges following the Feary case, and others declining to follow it. The matter was clearly put at rest, so far as Division No. Two was concerned, by the clean-cut language of Gantt, J., in Zander v. Transit Co., 206 Mo. l. c. 461, whereat he said:

“The 11th instruction given for the defendant was erroneous in that it singled out the plaintiff as a witness and usurped the- province of the jury in weighing his evidence. This instruction was disapproved in Montgomery v. Railroad, 181 Mo. 477; Conner v. Railroad, 181 Mo. l. c. 415 and 417; and Ephland v. Railroad, 137 Mo. l. c. 198. Such instructions in civil cases are a direct comment upon the weight of the plaintiff’s testimony, and are not to be tolerated. This particular instruction received full consideration in Conner v. Railroad, 181 Mo. l. c. 415 et seq., and it is not necessary to discuss it .further. ’ ’

As said above, Division No. One righted its own error in Stetzler v. Met. St. Ry. Co., 210 Mo. l. c. 713, when Yalliant, J., for the whole membership of said Division, said:

“The interest that a witness has in the litigation may be shown, to be considered by the jury in weighing her evidence, but when that fact is shown the jury should be left to exercise its own judgment as to the weight to be given the testimony. It has so long been the practice for the courts to instruct the juries that in weighing the evidence they shall consider the interest, if any, the witnesses have, and their demeanor on the stand, that no question is now raised as to general instructions of that kind, but if the courts have the right to instruct at all on that subject that is as far as they should go, and even to that extent instructions should not be given unless there is evidence to justify them. But the court has no right to single out a particular uñtness, whether she be a party to the suit or not, call attention to hbr interest■ as an inducement liable to cause her to give false testimony (for that is what the warning means) and tell the jury to be careful how they give credence to what she may say.”

It thus appears from the cases of Zander and Stetzler, both divisions of this court got together upon the proposition that it was error to single out a witness because of his interest in the result, and caution the jury as to his testimony. In civil cases with the same statute, the court condemns such an instruction. If an instruction singling out witnesses having an interest is improper in civil cases, as both divisions'of this court has held, how much more so should it be held improper in a case of life and death! If in a civil case, such an instruction, as G-antt, J., in Zander’s case, said, “was erroneous in that it singled out the plaintiff as a witness and usurped the province of the jury in weighing his evidence,” cannot stand, what reason can be urged for it in a criminal case? It will not do to justify it on the statute, section 5242, supra, because the civil section (6354) is the same in legal effect. They are both enabling statutes, and both have practically the same clause as to the credibility of the witnesses.

In the ease at bar a general instruction on the credibility of witnesses was given. This is as far as the court should have gone. The giving of instruction numbered 7 was error, for which the judgment should be reversed and the cause remanded. The matter is so fully discussed by Blair, J., in State v. Evans, 183 S. W. 1059, that it would seem almost superfluous to go into the civil statute and civil rule as far as I have gone. The judgment should be reversed and the cause remanded upon this ground at least. -

I therefore concur in the result reached in the opinion by Rev elle, J., in Division.

Bond, Blair and Wood-son, JJ., concur in these views.

FARIS, J.

(dissenting). — I dissent from the learned ajority opinion filed in this case in Division Two and now np for approval here, for the reasons which I set forth below herein.

Bnt two grounds of reversal are relied on. One of these (and the only one discussed in the majority opinion) is bottomed upon the failure of the learned court nisi to instruct 'on self-defense. The other one, while not discussed in the majority opinion, is again urged upon our consideration, both in the brief and in argument, and is bottomed upon the alleged erroneous giving of the conventional instruction upon the weight to be given by the jury to the testimony of defendant and his wife. I do not think that under the facts and circumstances of this case either one of these alleged grounds constitutes reversible error. My reasons for these views are these:

In the first place I do not concede that there is any sufficient foundation of fact in the testimony of defendant upon which to bottom an instruction on self-defense. Unless such instruction can be bottomed upon something the defendant said, then it confessedly can find no basis elsewhere in this record; all other testimony and the physical facts themselves contradict utterly any theory of self-defense. The facts showing whatever of self-defense there is in this case are stated with substantial accuracy in the majority opinion and I need not cumber these present views with another recital of them. Manifestly they are not sufficient on which to base an instruction for self-defense. This much I submit upon the facts. But even if it be conceded for argument’s sake, that the testimony which the defendant gave does entitle him to an instruction on self-defense, the failure to give such an instruction would not constitute reversible error in this case for two reasons, both of which are buttressed both by reason and authority.

The first well-settled rule which we must abolish is, that where the physical facts conclusively show (as I submit they do here) that the testimony of the defendant is wholly incredible, the trial court is not required to stultify’ itself by instructing upon such testimony, and therefore the failure of the court to do so will not constitute reversible error. The following cases uniformly ruled by us through many years without change or shadow of turning, so hold: State v. Anderson, 89 Mo. l. c. 332; State v. Gilmore, 95 Mo. l. c. 565; State v. Tabor, 95 Mo. 585; State v. Bryant, 102 Mo. 24; State v. Turlington, 102 Mo. l. c. 663; State v. Talmage, 107 Mo. 571; State v. Nelson, 118 Mo. l. c. 127; State v. Brown, 119 Mo. l. c. 538; State v. Vaughan, 200 Mo. l. c. 22; State v. Hollowav, 161 Mo. l. c. 144; State v. Tucker, 232 Mo. l. c. 18.

As appositely as if he had been writing an opinion upon the identical facts of the instant case, Sherwood,, J. , said in the case of State v. Holloway, supra, at page 144, this:

“But it is insisted that the fourth instruction given at the State’s instance, is incorrect as regards the doctrine of self-defense. This may be true, and yet that furnishes defendant no legitimate ground of censure upon that instruction for the palpable reason that there was no self-defense in this case; and the physical facts in the ease as well as the evidence show deceased was shot in the back as he was attempting to escape from the murderous aim of his adversary, and they show also that defendant was not cut on the hand or on the face, as he pretends he was. The shot in the back of a fleeing adversary, shows the true animus of defendant in doing the fatal act; shows it was not prompted by self-defense. Neither courts nor juries should stultify themselves by believing physical impossibilities. No amount of perjured testimony can break down the fact that deceased was shot almost squarely in the back. This could not have occurred if Watts was advancing on defendant all the time, as defendant swears he was.”

Again the same learned jurist said upon this point in the case of State v. Pollard, 139 Mo. l. c. 228: “Heretofore we have said, and we have frequently repeated the observation, that neither courts nor juries are required to yield credence to the statements of a witness who, to save himself from justly merited punishment, challenges the array of all the physical facts in the case, and then boldly invokes instructions based upon suclx simulated evidence.”

Likewise the same rule is invoked in civil cases [Huss v. Bakery Co., 210 Mo. l. c. 69; Baker v. Railroad, 122 Mo. l. c. 593; Payne v. Railroad, 136 Mo. l. c. 584.] But I must pass on.

The other rule and the holding which we must likewise overrule, is that where evidence of a thing rests solely in the mental attitude of the defendant, that attitude, as shown by defendant’s expressed intent disclosed by him in his sworn testimony, may be deemed to be true; to the extent, at least that he will not be heard to bottom error on the act of the trial court in instructing along the line of his sworn intent, or in failing to instruct contradictory to that solemnly expressed intent. [State v. Curtis, 70 Mo. 594; State v. Reed, 137 Mo. l. c. 138; State v. Shuster, 183 S. W. 296.] In the Reed case, supra, Burgess, J., speaking unanimously for Division Two, said:

“According to defendant’s own statement, he did not fire the fatal shot in order to prevent the commission of a felonious assault upon Cross, but fired it to prevent a felonious assault upon his brother, and fired the two following shots in self-defense. No one knew defendant’s purpose in shooting Winn so well as he did himself, and he was not entitled to an instruction utterly inconsistent with his own evidence, as to that purpose.”

So, for these two reasons, in addition to the impassable one, that there is nowhere in the record any sufficient testimony on which to base an instruction for self-defense, I think the court’s action in refusing to instruct was fully warranted and that in order to hold otherwise both lines of cases above mentioned must be overruled. If the above cases are to be overruled it ought to be done frankly and specifically, so that the Bench and Bar may know that we are overruling them.

II. Upon the point of the instruction given by the court nisi upon the weight and credibility to be accorded by the triers of fact to the testimony of defendant and his wife, I likewise think there was no reversible error. This point was strenuously urged upon our attention both in the argument In Banc and in the brief of appellant, though passed in the opinion of our learned brother Revelle stib silentio, being upon the facts in the instant case, in his view, unnecessary.' My position that there is no error in the giving of this instruction is bottomed on two reasons, which-1 discuss briefly. One is that the point is not properly raised in the' motion for a new trial. The other is that we have, since 1878, uniformly held, that such an instruction is not error. Let us look to these two points in their order.

Attending to the first one thereof, to-wit, the lack of sufficient assignment of error in the motion for a new trial, we note that the only assignment of error in the whole of defendant’s said motion which even squints at such a raising of this question, reads thus: “Because the court gave the jury illegal and improper instructions over defendant’s objections.” This, I submit, is not a sufficient assignment of’ error in a criminal case. [State v. Gifford, 186 S. W. 1058; State v. Taylor, 183 S. W. l. c. 301; State v. Levy, 262 Mo. l. c. 190; State v. Sykes, 248 Mo. l. c. 712; State v. Dockery, 243 Mo. 592; State v. Wellman, 253 Mo. l. c. 316; State v. Chissell, 245 Mo. l. c. 554; State v. Horton, 247 Mo. l. c. 663.] Regardless of the rule in a civil case, which as to this practice is governed by a different statute (Of. Secs. 5285 and 2022, R. S. 1909), this assignment lacks sufficiency in a criminal case (Sec. 5285, R. S. 1909); because (in addition to the provisions of the statute last supra, which requires to be “set forth the grounds or causes” for a new trial) we are required by statute to seek out error from the record whether there be joinder in error or not, and whether, there be a brief on file for defendant or not (Sec. 5312;, R. S. 1909); indeed, we are required by this solemn statute' to seek out error of our own volition, through lengthy folios of a mere written or typewritten transcript, and without the aid even of a printed record. I do not consider this assignment sufficient even in civil practice, even though we require in that practice in this court, as a condition precedent to review, that the appellant in his brief put his finger on and specifically assign the error he wants us to review. If he does not do this we refuse to review the alleged error at all. [Vahldick v. Vahldick, 264 Mo. 529; Bank v. Hutton, 224 Mo. l. c. 53; Sullivan v. Holbrook, 211 Mo. 99; Maplegreen Co. v. Trust Co., 237 Mo. 350.]

That we have upon the instant appeal finally got defendant to point out for us the instruction to which he objects, does not help matters, for we may have no such adventitious aid in- the very next case we are required to review; and it goes without saying, if the rule applies in a criminal case which is briefed, it likewise applies in a criminal case which is not briefed. The result would be that the wholly unnecessary burden of microscopically examining each and every instruction given by the trial court would he put upon this court in every criminal appeal, whether there he a joinder in error or not, and whether there he a brief filed or not.

In a civil case, as forecast above, there is afforded by the strict rule which requires an assignment of error, full protection against this sort of useless assault upon the limited time of this court. [Vahldick v. Vahldick, supra; Bank v. Hutton, supra; Sullivan v. Holbrook, supra.] In a criminal case no such protection by a rule is possible on account of the statute above cited. But even if specific assignments of error in a civil case were not compelled by our rules and our rulings, the motion for a new trial in this case would not be a sufficient assignment in a civil case to require at our hands a review of the instruction attacked. The assignment of error in the late but much disputed case of "Wampler v. Railroad, ante, p. 464, did not upon the facts therein up for ruling warrant our goiug to so great a length as we must go in this case in order to bottom a review upon the assignment of error herein. In the Wampler case, the assignment of error in the motion for a new trial substantially averred that “the instructions and each of them given for and on behalf of plaintiff were erroneous.” This of course was sufficient and was just as specific as if it had been therein averred that “instructions numbered 1, 4, 7 and 11, given by the court on behalf of plaintiff, are and each of them is erroneous.” No one giving heed to the age-old rulings of this court, will contend that the assignment last above is not sufficient on "authority. More than this ought not to be required touching an error bottomed on, an instruction. But so much substantially ought to be required, if for no other reason than that of expediting measurably the practice in the appellate courts.

Four days are allowed within which to file a motion for a new trial/' Almost ány lawyer ought to be able to find out in four days which particular numbered instruction, or instructions given adversely to his side by the court nisi, are erroneous.' Apposite to this very point and others akin thereto by analogy, the writer said in a late criminal ease, this:

“But we are precluded from examining this point in this case for the reason that defendant’s sole assignment of error in his motion for a new trial upon the point now urged is thus stated: ‘ The court erred . . . in not declaring all the law in this case necessary for the information of the jury in arriving at their verdict.’
“This is not a sufficiently specific assignment of an error urged here as being bottomed upon the giving by the court nisi of an erroneous instruction, or for the failure of the court to give any requisite instruction. [State v. Taylor, 183 S. W. l. c. 301; State v. Levy, 262 Mo. l. c. 190; State v. Sykes, 248 Mo. l. c. 712; State v. Dockery, 243 Mo. 592; State v. Wellman, 253 Mo. l. c. 316; State v. Chissell, 245 Mo. l. c. 554; State v. Horton, 247 Mo. l. c. 663.] The trial court is to be allowed the last clear chance to correct its own errors, and thereby, perhaps, save the delay and expense of an appeal.
“The above cases and many others which we might cite but follow the analogous statutory rule in civil cases, which requires motions to be specific (Sec. 1841, R. S. 1909) and.they accentuate the idea that at some stage of the trial of a criminal case, the defendant is saddled with the duty of taking the trial court measurably into his confidence.” [State v. Gifford, 186 S. W. l. c. 1060.]

Such a rule is not beset with hardships to the bar, because instructions are required to be written, and while they are more lengthy in most oases than necessary, they are rarely so lengthy in any case that they may not be read in four days. It is wholly different with the testimony in the case. It is usually voluminous; so that to carry it accurately in memory is impossible; it is rarely transcribed within the four days given by statute within which to file the motion for a new trial. So, in the nature of things there ought to be a difference in the holdings of this court upon the respective points.

Coming to the second point reserved above for discussioñ (which is, of course, not in this case if there is, as I urge, merit in the one discussed last above), this identical point was up in the case of State v. Evans, 267 Mo. l. c. 167 (recently before this court In Banc), but it was not therein conclusively ruled. As I stated in my concurring opinion in the Evans case, Division Two of this court and Banc as well, whenever the point reached court In Banc (State v. Barrington, 198 Mo. 23), have consistently ruled for almost forty years, that the giving of the cautionary instruction touching the testimony of defendant and his or her spouse, while sometimes criticised as useless, is not reversible error. [Kelley’s Crim. Law & Prae., p. 344; State v. Maguire, 69 Mo. 197 (decided in 1878); State v. Zorn, 71 Mo. 415; State v. Cooper, 71 Mo. 436; State v. McGinnis, 76 Mo. 326; State v. Sanders, 76 Mo. 35; State v. Wisdom, 84 Mo. l. c. 190; State v. Cook, 84 Mo. 40; State v. Miller, 93 Mo. 263; State v. Brooks, 99 Mo. 137; State v. Brown, 104 Mo. 365; State v. Morrison, 104 Mo. 638; State v. Young, 105 Mo. 634; State v. Mounce, 106 Mo. 226; State v. Ihrig, 106 Mo. 267; State v. Noeninger, 108 Mo. 166; State v. Turner, 110 Mo. 196; State v. Wells, 111 Mo. 533; State v. Renfrow, 111 Mo. 589 ; State v. Porter, 111 S. W. 529; State v. Maguire, 113 Mo. 670; State v. Fairlamb, 121 Mo. 137; State v. Pratt, 121 Mo. 566; State v. Lingle, 128 Mo. 528; State v. Taylor, 134 Mo. 109; State v. Bryant, 134 Mo. 246; State v. Napper, 141 Mo. 401; State v. Summar, 143 Mo. 220; State v. Fox, 148 Mo. 517; State v. Miller, 159 Mo. 113; State v. Adair, 160 Mo. 391; State v. Miller, 190 Mo. 449; State v. Dilts, 191 Mo. 665; State v. Maupin, 196 Mo. 164; State v. Barrington, 198 Mo. 23; State v. Brown, 216 Mo. 351; State v. Newcomb, 220 Mo. 54; State v. Boyer, 232 Mo. 267; State v. McDonough, 232 Mo., 219; State v. Mintz, 245 Mo. l. c. 547; State v. Shaffer, 253 Mo. 320; State v. Hyder, 258 Mo. 225, and many others which industry will uncover.]

If we are, without any1 .qualification, to hold that the giving of the instruction here complained of, is in all cases reversible error, such ruling will serve to reverse almost nine out of ten of all criminal cases pending in this court, as well as practically all of the criminal cases now in the course of appeal here. This is of course no insuperable reason why, if we are wrong, we should not get right; but for the reasons given by Judge Henry in the case of State v. Maguire, supra, and by Judge Gantt and others in the cases above cited, and by the writer in the case of State v. Shaffer, 253 Mo. 320, and in the concurring opinion in the Evans case, supra, I do not think the making of such a ruling would be to get right, but on the contrary it would be to get wrong after having been right for forty years. This contention presents no new question. It has been urged and argued over and over again. Many of our predecessors upon this bench have dealt with it, examined it, gone into it and into its history, and finally, without 'an exception, agreed'that it is not reversible error, till the qualified ruling in the Evans case, supra. When we consider the history of the matter and the great change wrought by the Act of 1877, conferring upon defendant for the first time the right to testify as a witness for himself, we are able to appreciate that the giving of this cautionary instruction was not when it began an utter heresy in the law.

Arguendo, in the Shaffer case, supra, the writer fell into what upon one view might be termed an inaccuracy, in saying that there is no cautionary provision in the statute which confers the right on a party in a civil suit tO' testify for himself. Much stress is laid upon this fact in the learned majority opinion in the case of State v. Evans, snpra. But'aside from the mere reproach which follows inaccuracies of statement, the above error in the Shaffer case cuts no figure whatever. I should have stated that there is no precisely similar statute in the civil practice. There is a general statute relative to witnesses which affects this matter; but this statute is different in its history, provisions and even verbiage, in the respects mentioned infra, from the one contained in our Code of Civil Procedure. The general statute affecting this matter in civil cases was passed (semble) in 1855. [E. S. 1855, p. 1576, sec. 1.] It did not then, except by somewhat remote inference, provide that the express fact of interest could be shown for the purpose of affecting credibility. [E. S. 1855, p. 1577, sec. 2.] It was not till 1865 that :t assumed its present form and provided, in physical juxtaposition to the according of competency, the present privilege in the triers of fact of diminution cf credibility for interest’s sake. [G-.. S. 1865, p. 586, sec. 1] It did not then, nor does it noto, nor has it ever said one syllable as to the competency of the spouse of a party to testify for him or her at the expense merely of the privilege of diminution of credibility by reason of the marital relation. Such spouse has never had, except where he or she acted as the agent for the other spouse, and in other specific but limited aspects, the privilege of testifying at all in the wife’s or husband’s civil case. [Sec. 5359, E. S. 1909.]

But the provision of the criminal practice removing as to the defendant the bar of incompetency as a witness, was not passed till 1877, twenty-two years later. [Laws 1877, p. 356, sec. 1.] It was amended in 1879 (E. S. 1879, sec. 1918) so as to allow the spouse of the defendant to testify if he or she chose upon the trial in behalf of such defendant. The price of this privilege of competency was from the beginning that of having interest shown in diminution of credibility. Under the provisions of the Criminal Practice Act the bar of incompetency was removed from both defendant and his spouse upon the express condition that the fact of interest in the result by reason of being the defendant, or the sponse of the defendant, might be shown to affect credibility. In the civil statute there was no such express provision, or price attached as the privilege of competency, till ten years after the right to testify was given. It was not in fact even then, and has not yet leen (except within the narrow statutory limits set forth, supra), so granted upon any condition, or price to the spouse in a civil case.

Notwithstanding those differences in history and verbiage, the instruction upon the weight of the evidence of the spouse, will likewise be stricken down, if the rule suggested in the Evans case be adopted in the criminal practice, along with the similar -instruction touching the evidence of the defendant. • If one goes, by all rules of reason and decision, the other must go also. If the provision of the. general statutes relative to witnesses, which was passed in 1855, .is to be construed in all cases in pari matería with the similar provision of the Criminal Practice Act, which was passed in 1877, and (‘amended (so far as the provision in question is concerned) into its present form in 1879,v then there was no real need or reason for the enaction of the provision in the Criminal Practice Act at all, and the Legislature in passing it did a vain and futile thing. The provisions of the general statute would have covered the case and at least have made the accused himself competent, without the need of any harsh construction thereof whatever.

. So, for these reasons ¡and others to be found in the learned discussions of this much-mooted point, for much more than a third of a century, and to be found in the books by the curious in the cases I cite above, I submit that the fallacy into which the learned writers of the majority opinion in the Evans case and of the concurring opinion herein fell, arises, among other things, from the fact that they fail to correctly note the differences existing between the civil and the criminal practice.

Summing up briefly at the risk of repetition, there is no statute in the civil practice which requires the trial court to instruct on all of the law of the case; there is such a statute in the criminal practice which makes it obligatory upon the trial court so to instruct. Then since a jury of laymen must get the law from some source, they must either get it in the statute-ordained way, from the court by instructions, or they must carry the Revised Statutes into their jury room. But this reason was dealt with in the Maguire case and in the Shaffer case, and in-numerous others, so I need not again belabor it.

Another slight difference is that in civil cases where comment of this kind has, I concede, been held reversible, both parties ordinarily (always, either against a party, or his agent, or against a joint tortfeasor) testify for themselves against the adverse party, unless one be dead or insane, in which case the other is wholly disqualified. So, comment in an instruction upon the weight to be given to their testimony, respectively, would ordinarily be not only unavailing, but wholly frivolous and inept. In a criminal case the accused swears against a dumb entity — the State — which itself cannot testify either in person or by agent. That these latter reasons have no particular weight, unless there exist the differences urged as between the civil and criminal statutes, may be conceded. But if the history, language and context do combine to show a legislative intent in the one case, which is not to be found in the other, these reasons may contribute logically to explain in part the considerations upon which that difference is bottomed.

'Much was said by learned counsel for appellant upon argument in an impassioned outburst of oratory, touching the deprivation of a citizen of his liberty; but if that citizen be by the facts shown in the evidence, conclusively proven to be guilty of a most bloody, brutal and inexcusable murder, he ought not to be allowed any fairer trial than many hundreds of others have had who have gone this way before him, and have had applied to them the rule for the abolition of which he now contends.

For the above reasons I most respectfully dissent from the conclusion reached in this case, as well as from the rules upon which that conclusion is bottomed.

Williams, J., concurs in these views.