text:
    THE STATE v. LEE HOPKINS, Appellant.
    Division Two,
    June 3, 1919.
    1. INSTRUCTION: Purpose. An essential function of an instruction is to erect for the jury’s guidance, in the event given and definite facts are by them found to exist, a definite and unambiguous guideboard along the pathway of their legal duty.
    2. -: Self-Defense: Voluntarily Entering Difficulty. An instruction which tells the jury that “self-defense is not available where defendant voluntarily and of his own free will enters into the difficulty with the intent to kill or 'do some great bodily harm” is not a definite guide to the jury, is ambiguous in its meaning and is erroneous.
    3. -: -: Protecting One’s Own Life. An instruction telling the jury that when a defendant voluntarily and of his own free will enters a difficulty to defend his life or his body from great injury, he immediately loses the right of self-defense, if at the time he enters upon his defense his intention is to kill or do great bodily injury to his assailant, is erroneous, because the right of self-defense in many instances permits the intentional
    killing of the assailant.

      4. -: -: Unnecessary Force. An instruction on self-defense ■which, tells the jury that “no one is justified in using more force than is necessary to get rid of an assailant” is erroneous and a misleading statement of the law. A person is not required to nicely gauge the amount of force necessary to repel an attack, but may act upon appearances.
    5. EVIDENCE: Finding of Rock at Scene of Fight. Where defendant is charged with assaulting another by throwing a rock at him and heating him on the head with other rocks, testimony of a witness who was not present at the fight that he picked up at the scene a short time thereafter a rock which at the time had blood and hair on it, or the introduction of the rock itself in evidence, is not error, hut a proper development of the facts and circumstances.
    6. FAILURE TO INSTRUCT: Preserved for Review. An assignment that the court erred in not giving an instruction on common assault, if the alleged error is in no manner preserved in the motion for a new trial, will not he considered on appeal. \
    Appeal from Howell Circuit Court. — Hon. E. P. Dorris, Judge.
    Reversed and remanded.

      M. E. Morrow for appellant.
    (1) There was no evidence whatever that the rock used by the defendant was a deadly weapon, except the exhibition of the “bloody rock” brought into court by the State’s witness, Lon Callison, which was never connected with the defendant. The court therefore erred in not instructing the jury on common assault. State v. Schloss, 93 Mo. 361; State v. West, 6 Jones (N. C.), 505; 2 Bishop on Criminal Law, see. 681; State v. Harris, 209 Mo. 423. (2) An instruction that concedes the right of self-defense is destroyed by adding the words: “If the defendant voluntarily entered into the difficulty.” Instruction four was, therefore, error. State v. Rapp, 142 Mo. 443.

      Frank W. McAllister, Attorney-General, and George V. Berry, Assistant Attorney-General, for respondent.
    (1) The court did not err in refusing an instruction on common assault. There was sufficient evidence showing that the assault was made with a deadly weapon. State v. Miller, 264 Mo. 403; State v. Harris, 209 Mo. 39; State v. Bowles, 146 Mo. 13; State v. Barton, 142 Mo. 55; (2) Instruction 4 taken in connection with instruction 5, clearly defines defendant’s right of self:defense. State v. McKenzie, 177 Mo. 713; State v. Gordon, 191 Mo. 26; State v. Sebastian, 215 Mo. 84; State v. Kloss, 117 Mo. 603; State v. Partlow, 90 Mo. 612; State v. Starr, 38 Mo. 74; State v. Hays, 23 Mo. 318.
   WILLIAMS, P. J.

Upon an information charging him with assault with intent to kill, upon one Cledy Fox, defendant was tried in the Circuit Court of Howell County, found guilty, and his punishment was assessed at a fine of $100.

The evidence upon the part of the State may be summarized as follows:

The assault occurred on Sunday, May 26, 1918, near a country church in Howell County. The defendant and the prosecuting witness, Fox, were young men, living in that neighborhood, and on the day in question attended Sunday School at the country church. The prosecuting witness left the church first, and after going down the road about 150 yards took a position at rest upon a roadside fence. Shortly thereafter defendant and a companion left the church house and walked down the road, and as they passed the prosecuting witness spoke to him. Thereupon the prosecuting witness made the following inquiry, “Did you fellows have a good time at the dance last night?” and the defendant replied, “None of your G— D-d business; are you looking for something?” and immediately grabbed a rock and threw the same at the prosecuting witness, missing him.

Fox jumped off the fence, and defendant picked up another rock and was in the act of throwing when Fox’s mother ran in between them. Defendant ordered her out of the way and then threw the rock at Fox, striking him a glancing blow therewith, and then reached down for another rock, saying, “I’ll knock yonr Gr-D-d brains out.”-

At this time Fox, having moved up close to defendant, pushed him a few steps up the road. At this point defendant hit'Fox with another rock. They clinched and fell to the ground, Fox on top. Defendant succeeded in turning him over and then struck him on the head with a rock. By-standers pulled defendant off of Fox, and thereupon Fox choked the defendant. Defendant released himself,'ánd mounted a mule and was riding away when Fox threw a small rock, striking defendant in the back.

Fox denied that he rushed towards defendant with a billy when defendant first spoke to him, but stated that after defendant had thrown a rock at him he ran up close to defendant to keep him from throwing another rock. ' .

Shortly after the encounter, Fox went to the office of a physician to have his wounds dressed. The physician testified that there were many gashes all over Fox’s scalp, except the back portion thereof. The wounds upon the head required about twenty-five stitches.

From the evidence it may also be inferred that bad blood existed between these two young men prior to this encounter, but the exact cause of the existence thereof does not appear from the record.

The evidence upon the part of the defense may be summarized as follows:

As defendant and his companion passed Fox on the road, Fox asked them if they were homeward bound, and defendant replied in the affirmative. Fox then asked them if they were at the dance the night before. Defendant said that he was and asked why “The Turkeys” (evidently a nick name applied to the family of the prosecuting witness) were not there. Thereupon Fox said “he didn’t know, by Gr-d, that they had to go,” and jumped from the fence and drew a billy from his pocket as he advanced towards .the defendant. Defendant then picked up a rock and Fox came out into the road and hollowed, “Hey!” Defendant then threw a rock at Fox, but missed him, and picked up another rock just as Fox’s mother stepped in between them. At his command she stepped out of the way and he threw at Fox a second time, missing, and then turned, reaching for another rock. At this juncture Fox ran up close to defendant, striking him with a billy. The stroke knocked defendant to his hands and knees and stunned him. Defendant jumped up with a rock in his hand and hit Fox in the head with it. They clinched and fell to the ground, and defendant was on top of Fox hitting Fox with a rock when some one pulled him off. Defendant thereupon took the billy away from Fox, and Fox’s parents took the billy away from defendant and held defendant while Fox choked him. Defendant’s companion helped free defendant. Defendant then fled and mounted a mule and started to ride away when Fox threw a rock at him, striking him in the back.

In rebuttal the State was permitted to introduce in evidence over defendant’s objection a certain' rock which the witness, who was not present at the fight, picked up at the scene of the fight a short time thereafter. This witness stated that there were a number of rocks in the road where he picked this one up and at the time he picked up the rock it had blood and hair upon it.

The only instruction of which appellant makes complaint was instruction four given by the court as follows:

“The law of self-defense is the law of necessity and does not imply the right of attack, nor will it avail in any case where the difficulty is sought or brought on by the party’s own wilful act, or where he voluntarily and of his own free will enters into it with the intent to kill or do some great bodily harm to the person so entered into the controversy with, and no one is justified in using more force than is neeessary to get rid of an assailant, nor in the use of a deadly weapon to repel assault, unless, at the time there be good cause to apprehend death or great bodily harm from such assailant.”

I. Appellant contends that instruction four was erroneous. We are of the opinion this assignment is well taken. We will not undertake to discuss . . , . every possible ambiguity or error contained m the instruction, but will mention one or two of the most apparent.

■The instruction says self-defense is not available “where he [defendant] voluntarily and of his own free will enters into it [the difficulty] with the intent to kill or do some great bodily harm.”

One of the essential functions of an instruction is to erect for the jury’s guidance, in the event given and definite facts are by them found to exist, a definite and unambiguous guideboard along the pathway of their legal duty.

What is meant by the above quoted portion of the instruction? Does it supply a definite guide for the jury’s action? Under what circumstances can a man be properly said to have voluntarily and of his own free will entered into a difficulty with intent to kill or do great bodily harm? Does it mean only that the participant must have agreed or consented beforehand to meet his opponent upon the field of combat, as was the ancient custom in duelling? If so, it could have no application to the present case, because there was no evidence to justify the submission of such a theory.

Does the instruction mean that when a man voluntarily and of his own free will enters (that is participates) in a difficulty to defend his life or his body from great injury, he immediately loses the right of self-defense, if at the time he enters upon his defense, his intention is to kill or do great bodily injury to his assailant? If so, then it is clearly erroneous, because-the law of self-defense in many instances permits the intentional killing of the assailant. The right to kill or do great bodily injury in self-defense is not limited to an unintentional or accidental killing or injury.

It occurs to us that the instruction is very ambiguous in meaning. What construction the jury would place upon such language we can only conjecture. Such language has no ¿roper place in an instruction under the facts of the present case. We are aware that language can he found in some of the cases apparently approving such an instruction and it would appear to be a difficult task to harmonize the decisions on the question. Undoubtedly some loose language lias been used in connection with the subject. But we have no hesitancy in saying that the instruction is ambiguous, misleading and clearly erroneous when applied to situations like the one now held in judgment. [State v. Rapp, 142 Mo. 443, l. c. 447; State v. Gordon, 191 Mo. 114, l. c. 126 et seq.]

Furthermore the phrase, ‘ ‘ and no one is justified in using more force than is necessary to get rid of an assailant,” is also an erroneous and misleading statement of the law. It is well settled that a person is not required to nicely gauge the amount of force necessary to repel an attack, but that he may act on appearances.. [State v. Banks, 258 Mo. 479, l. c. 492; State v. Hollingsworth, 156 Mo. 178, l. c. 186.]

II. The evidence showing the finding of the rock with blood and hair on it at the scene of the fight a short time thereafter and the introducion of same in ev^ence was, we think, not error. It was a proper circumstance for the jury’s consideration with all the facts and circumstances shown in evidence.

Motion forNew Trial, III. It is further contended that the .court erred in not giving an instruction on common assault. Concerning this point it is sufficient to sav the alleged error is m no manner preserved in the motion for a new trial.

■ Other points urged are not such as will likely occur upon a retrial and further-discussion is deemed unnecessary.

The judgment is reversed and the cause is remanded.

Faris, J., concurs; Walker, Jdissents.


source: Caselaw Access Project

author: RAILEY, C. PER CURIAM:

license: Public Domain

text:
    F. A. BOSTICK, Appellant, v. J. S. McINTOSH.
    Division Two,
    June 3, 1919.
    1. ABATEMENT: Death of Defendant: Revivor. An action against a defendant who has died after suit brought which is not revived by scire facias on or before the third term after the suggestion of his death, must abate. Section 1921, Revised Statutes 1909, operates as a special statute of limitations, to which there is no exception.
    2. -: -: -: No Timely Service. Although the death of defendant was suggested and an order entered of record that * summons issue to his administratrix to show cause, on or before the next term, why the case should not stand revived against her, yet if no summons was served or issued on or before the third term after deceased’s death was suggested, the case must be dismissed. The statute is mandatory, and the court is prohibited from granting any relief, even when the clerk fails to obey the order, unless scire facias has been timely issued and served.
    3. SUMMONS: For Administratrix: Served by Name Only. A service of summons upon an administratrix by her name only, and not as administratrix, is not a proper service to revive a suit against her deceased husband. A sheriff’s return defective in that respect may, by timely motion in the trial court, be amended to show service upon her as administratrix, ■ if such was the fact, but on appeal the court takes the record as it finds it.
    4. -: Order: Failure to Issue. It is the duty of plaintiff’s attorney, who has suggested defendant’s death and asked for and obtained an order for summons to issue against the administratrix to show cause why the case should not be revived against her, to see that the writ is issued, that it is served upon the proper person, and that the sheriff’s return is in proper form. If the clerk neglects to issue the writ in obedience to the order, the negligence is not his alone, but his and that of plaintiff’s counsel.
    Appeal from Jackson Circuit Court. — Hon. O. A. Lucas, Judge.
    Affirmed.

      Ed. E. Aleshire for appellant.
    (1) This ease is based upon Sections 1916, 1917, 1918, 1919 and 1921, Revised Statutes 1909. These sections state fully the steps necessary to revive a case after the death of a party. There seems to be no controversy but what the death of defendant was suggested in due time and notice given to take up the motion for disposition and the final order of the court made on April 12,1915. It does seem that after , Judge Creel, who is now dead, and had charge of this case, took the preliminary steps and suggested the death of defendant, and upon hearing the court made an-order, directing the clerk to issue a summons as provided by statute, and though this was not done, it was not under the control or the jurisdiction of plaintiff or his attorney. We always supposed it was a legal duty of the clerk of the court, when directed by an order of the judge, to issue a summons, that in making up a record he had full notice of it, and certainly nothing further would be néeded from the plaintiff. We have always understood the law to be that the filing of the petition or an order was the beginning of a suit, and if, as this case, the record was made, that a summons isshe, and, if for'any reason, not chargeable to the plaintiff or his attorneys, the summons 'was not issued, then certainly the Statute of Limitations would not begin to run, as plaintiff has done all that he can do when he gets an order of the court requiring a clerk to -issue a summons. Sec. 1756, R. S. 1909; South Missouri Lumber Co. v. Wright, 74 Mo. 326.

      Ross B. Gilluly for respondent.
    (1) The statute rendered it mandatory upon the trial court to sustain our motion. Rutherford v. William’s Legal Representatives, 62 Mo. 252; Beardslee v.' Morgner, 73 Mo. 22; Prior v. Kiso, 96 Mo. 314. (2) The reason for the failure to comply with the statute is immaterial, if as a matter of fact it was not complied with.
   RAILEY, C.

It appears from the abstract of record that plaintiff: sued defendant in the Circuit Court of Jackson County, on August 27, 1914, to recover $10,000 damages, but we are not advised as to the nature of the transactions between said parties, as only a small portion of the petition is set out in the record.

"While the action was pending against defendant, and on April 8, 1915, plaintiff filed in said cause a statement in writing, advising the court that defendant had died in'December, 1914; that Marion N. McIntosh, defendant’s wife, was executrix of his estate, in process of administration in the probate court of said county, at Kansas City, Missouri. He asked that the cause be revived against Marion N. McIntosh, executrix of the estate of J. S. McIntosh, deceased, and that shé be cited to show cause why the case should not stand revived against her as executrix of said estate.

Notice was given to the former attorney of defendant, that the above motion would be called up for disposition on April 12, 1915.

On said April 12, 1915, the following order was made:

“F. A. Bostick v. J. 8. McIntosh.
“Now on this day on application of plaintiff it is ordered by the court that summons be issued to Marion N. McIntosh, as executrix of the estate of the defendant, J. S. McIntosh, to show cause on or before the 4th day of the next term of this court why this cause shall not stand revived against her as executrix of the defendant.”
“It appears from the clerk’s record that the summons ordered to be issued never was issued, hence never was served on Mrs. McIntosh, the executrix.”

It is alleged in the abstract that James R. Creel, a member of the firm of Moore & Creel, had entire charge of this case, and died in Kansas City, Missouri, on May 2, 1916.

On June 6, 1916, Ross B. Gilluly, attorney for the executrix, filed a special motion to dismiss for want of jurisdiction. Counsel for the executrix appeared specially for that purpose only, for no other purpose, and disclosed to the court that defendant died December 17, 1914; that his death was suggested by plaintiff on April 8, 1915; that on April 12, 1915, an order was entered by the court directing that summons issue to Marion N. McIntosh, as' executrix of the estate of John S. McIntosh, deceased, to show cause, on or before the 4th day of the next term, why the case should not stand revived against her. Counsel, in the special motion, represented that said executrix had never been served with summons, as required by law, and that more than three terms of the circuit court, in which the cause was pending, had passed since the suggestion of the death of said defendant herein; that said circuit court, by reason thereof, had no further jurisdiction of the cause. She therefore asked that the case be dismissed.

Counsel for plaintiff waived service on the special motion of executrix, which was taken up by the court on June 12, 1916, but before it was passed on by the court, to-wit, on June 15, 1916, a writ of summons was issued, which said writ, with the return of the sheriff thereon, reads as follows:

“Circuit Court. — Summons.
“Revival.
“The State of Missouri, To the Sheriff of Jackson County, Greeting:
“You are hereby commanded to summon Marion N. McIntosh as executrix of estate of J. S. McIntosh, deceased, to appear in the Circuit Court of Jackson County, Missouri, at the County Court House in Kansas City, on the second Monday in September next, and show cause, if any she has, why the action hereafter named shall not be revived in her name as representative and successor of J. S. McIntosh, deceased, and unless she show good cause, within the first four days of said term, against the order of revivor heretofore made hy our said court, in the cause wherein P. A. Bostick et al. are plaintiffs, and J. S. McIntosh is defendant, the action shall stand revived.
“And that you then and there have this writ and that you certify how you execute the same.
“Witness, James B. Shoemaker, Clerk of the Circuit Court, with the seal thereof affixed, at office in Kansas City, Missouri, this 15th day of June, A. D. 1916.
“Jambs B. Shoemaker, Clerk,
“(Seal) “By D. M. Mg Clan ah an, Deputy.
“Executed this writ in Jackson County, Missouri, on the 15th day of June, 1916, by delivering a copy of this writ to the within named defendant, Marion N. McIntosh.
“Edward N. Winstanley, Sheriff,
“By E. R. Scovill, Deputy.”

On June 23, 1916, said special motion to dismiss was sustained and judgment entered accordingly. Plaintiff duly appealed the cause to this court, and assigns as error, the action of the trial court in dismissing said cause.

I. It is contended by appellant that the trial court committed error in dismissing his case under the circumstances heretofore stated. In passing upon ‘this question, it will be necessary to consider the jegai e;ffecj. 0f gection 1921, Revised Statutes 1909, which reads as follows:

“In all eases where the representatives of a deceased or disabled party shall not be mlade parties according to the provisions of this article, on or before the third term after the suggestion of the death or disability, the action shall abate as to .such party and the interest of his representatives or successor therein; and the cause shall proceed in favor of or against the survivors. In case there he no surviving plaintiff or defendant, the suit shall be dismissed.”

The above was known in Revised Statutes 1899 as Section 761; in Revised Statutes 1889, as Section 2201, and in the General Statutes 186:5, page 679, as Section 6. In the latter section, the word “chapter” is used instead of “article.” In all other respects, there has been no change in the law relating to this subject since 1865.

In Ranney v. Bostic, 15 Mo. l. c. 218, Ryland, J., in discussing the subject before us, construed the Law of 1845, which reads as follows:

“No scire facias for the purpose of substituting a person as plaintiff or defendant in any suit in the place of the original plaintiff or defendant, shall b>e sued out after the expiration of the third day of the second term next after the term in which the death or disability of the original party shall be stated upon record.”

Judge Ryland, after setting out said section, said: “It was by virtue of this provision, that the court sustained the motion to abate this suit. In this case there was no necessity for the motion to abate, for by the statute above quoted the scire facias could not issue after the lapse of the time mentioned, and the necessary consequence was the abatement .of this suit.”

The above language is clear and explicit, as to the construction which should be given Section 1921, Revised Statutes 1909.

In Rutherford v. Williams’ Legal Representatives, 62 Mo. l. c. 254, Hough, J., construed the law, in its present form, as follows:

“The statute, in relation to the abatement of suits and their revival, is in the nature of a special Statute of Limitations, and, after the expiration of the time therein limited, no writ of scire facias can issue; and it is very questionable whether heirs, devisees or creditors, would be bound by any appearance on the part of an administrator, after the lapse of such period.
“No provisions are made for extending the time so limited under any circumstances; the language of the statute. seems to be imperative, and we are not now prepared to say that there are any exceptions to its requirements. .
£ ¡ rppg records, showing that no appearance had been entered within the time prescribed by law, were open to the inspection of all, and it would have been prudent under the circumstances to have consulted them.”

In Doering v. Kenamore, Admr. 36 Mo. App. l. c. 150, Biggs, J., said: “The statute is imperative and provides that 'the suit shall be dismissed unless the law-has been complied with. Any order that the court might make after the expiration of the time, looking to the further prosecution of the suit, would bind no one.”

In Mathewson v. St. Louis & S. F. Ry. Co., 44 Mo. App. l. c. 98, Thompson, J., in discussing the statute under consideration, said: “This provision is in the nature of a special statute of limitations, and after the expiration of the period limited, there can be no scire facias, and consequently no revivor. ’ ’

The principles of law announced in the foregoing quotations are recognized as sound in other cases in this State. [Gallagher v. Delargy, 57 Mo. l. c. 34-5; Beardslee v. Morgner, 73 Mo. 22-24; Prior v. Kiso, 96 Mo. 303-314; Posthlewaite v. Ghiselin, 97 Mo. l. c. 424; Crook v. Tull, 111 Mo. l. c. 287-8; Edwards v. Watson, 258 Mo. l. c. 637-8; Mathewson v. St. Louis & S. P. Ry. Co., 44 Mo. App. 1. c. 98; Wilkinson v. Thom, 194 Mo. App. 173.]

We have not been cited to any authority in this State,' or elsewhere, which in any manner militates against the position assumed by the courts in the cases heretofore mentioned. Section 1921, supra, has been upon our Statutes in substantially the same form since 1845. The General Assembly, during all these years, has apparently been satisfied with the construction placed upon said law, by our appellate courts. In our opinion, Section 1921, supra, was intended to operate as a special Statute of Limitations; and to prohibit the revival of the action under such facts as are disclosed by the record herein,.

II. It is conceded by appellant that no summons was issued or served on the executrix within the time required by Section 1921, supra, but, it is insisted that as the order was made and entered of record to show cause, although it was not served in time, and not until aJ^er respondent’s motion to dismiss was filed, yet the court, as a matter of justice, should revive the action under such circumstances. Two obstacles are in the way of granting such relief: First, because Section 1921, supra, is a special Statute of Limitations, mandatory in its terms, prohibits the court from granting any such relief, and requires that the action shall be dismissed; and, second, the return oq the untimely writ shows on its face that Marion N. McIntosh was served with a copy of same, but it does not appear that she was served as administratrix. [Blodgett v. Schaffer, 94 Mo. 652; Doering v. Kenamore, Admr., 36 Mo. App. ' l. c. 149; Smoot v. Judd, 184 Mo. 508; Ellis v. Nuckols, 237 Mo. l. c. 294-5.] It is possible that the-sheriff may have made a mistake in certifying that “Marion N. McIntosh” was served with a copy of the writ, instead of Marion N. McIntosh, administratrix. If go, by timely motion in the court below, the return might have been amended, but taking the record as we find it here, it does not show that the administratrix was served.

III. Appellant concludes his brief as follows: " There is one thing certain, the clerk did not comply with the order of the court and if plaintiff is to suffer by the negligence of the clerk then we do not think that he has been justly dealt with."

Aside from either of the foregoing questions discussed, there is no merit in the above contention. Plaintiff was represented by his attorneys in securing an order for the issuance of a writ of scire facias, against the administratrix. The attorneys, in contemplation of law, were his agents, and obtained the above order. They were bound to know, as a matter of law, that Section 1921, supra, required the writ to be issued and served on the administratrix within the time mentioned therein. It was the duty of plaintiff’s counsel, in the exercise of reasonable diligence, to see that the writ of scire facias was properly issued; that it was served upon the proper person, and that the sheriff’s ¡return wás in proper form. It may be conceded that the clerk was negligent in the performance of his duty, yet plaintiff’s counsel were likewise negligent in failing to perform their part of a common duty, even if the statute had authorized — which it does not — the court to revive the action out of time for good cause shown.

IV. On the record before us, the judgment of the trial court was for the right party, and it is accordingly affirmed.

White and Mosley, CG., concur.

PER CURIAM:

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

All of the judges concur.


author: WILLIAMS, P. J.

text:
    GEORGE WALKER, Doing Business as WALKER STAVE COMPANY, Appellant, v. OZARK COOPERAGE & LUMBER COMPANY OF NEW JERSEY.
    Division Two,
    June 3, 1919.
    1. APPELLATE JURISDICTION: Amount in Dispute. The Supreme Court does not have jurisdiction of an appeal from a .judgment rendered on demurrer to plaintiff’s petition in a suit in equity whereby he sought to have satisfied, out of the property of defendant corporation, a judgment for . $1646.01 rendered in his favor against defendant’s corporate predecessor, and to have a receiver appointed for both corporations, since the real amount in dispute is said judgment debt, plus interest, and tbe monetary value, under the receivership, of the corporation’s' property, until such time as the debt can be satisfied, and nothing appears from which it can be inferred that such possession involves an amount in excess of $7500.
    2. —: : -: Prayer of Petition; Irrelevant Allegations; Prayer for Receivership. Jurisdiction is not to be determined from the prayer of the petition, nor from allegations which are not material to the main cause of action. If the purpose of the suit is to have satisfied, out of property held by defendant corporation, a judgment for $1646.01 rendered against defendant’s corporate predecessor, the fact that the petition also demands that a receiver be appointed for both corporations does not determine appellate jurisdiction, for in no event can plaintiff recover more than the judgment debt and costs, and the only loss defendant can possibly sustain is an amount sufficient to pay the debt and costs, plus the financial value of the temporary loss of the control of its corporate assets pending a possible receivership in aid of the main suit, and no definite estimate of the value of that loss can be inferred where judgment is rendered for it on its demurrer to the petition.
    Appeal from St. Louis City Circuit Court. — Hon Chas. Claflin Allen, Judge.
    Transferred to St. Louis Court oe Appeals.

      John A. Harrison, Henry B. Davis and Erd & Massey for appellant.

      Wells H. Blodgett, George B. Webster, Henry W. Blodgett and Walter N. Fisher for respondent.
   WILLIAMS, P. J.

This is a suit in equity by which plaintiff seeks' to have satisfied, out of tbe property held by tbe defendant corporation, a judgment for $1646:91 rendered in bis favor in tbe Federal court against tbe predecessor of tbe defendant corporation.

Tbe trial court sustained a demurrer to tbe plaintiff’s, petition and an appeal was taken by him to tbe St. Lpuis Court of Appeals. That court having doubt as to its jurisdiction of tbe appeal certified tbe case here. After tbe case reached this court tbe respondent filed a motion here to remand tbe cause to the St. Louis Court of Appeals. This motion was ordered to be taken with the case and should be now determined before proceeding further.

The facts bearing upon the question of jurisdiction are stated in the opinion of the Court of Appeals, from which we quote as follows:

‘ ‘ The petition inter alia alleges that plaintiff obtained a judgment in the United States Circuit Court for the Eastern Division of the Eastern Judicial District of Missouri in the sum of $1646.01, against the Ozark Cooperage Company, a Missouri corporation. The petition does not disclose the date of the rendition of such judgment, though it is averred that the suit in which the same was rendered was instituted on February 23, 1905. The defendant therein, referred to in the petition as ‘Ozark Cooperage Company Number One,’ transferred its assets to the Ozark Cooperage Company of St. Louis, Missouri, referred to in the petition as ‘ Ozark Cooperage Company Number Two,’ likewise a Missouri corporation. And it is alleged that there was a ‘pretended dissolution’ of the original corporation. It is averred that the latter was ‘at the time of said pretended dissolution a large and properous corporation having assets of more than fifty thousand dollars over and above its liabilities.’ Further allegations are made with which we are not now concerned, and it is then alleged that later ‘Ozark Cooperage Company Number Two’ transferred all of the assets obtained by it from ‘Ozark Cooperage Company Number One’ to ‘Ozark Cooperage & Lumber Company of New Jersey,’ a New Jersey corporation, which had been licensed to transact business in the State of Missouri.
“It appears that all of the said corporations were originally named as defendants, as well as certain individuals alleged to have been officers and directors of the three companies, but that the suit was dismissed as to all defendants except the Ozark Cooperage & Lumber Company of New Jersey, respondent herein.
“The petition charges that the transfers of the assets aforesaid were without consideration and were fraudulently made by the officers and directors of said corporations for the purpose of hindering, delaying and defrauding the plaintiff. And it is alleged that the assets of the two Missouri corporations have been fraudulently ‘intermingled and commingled’ so that the same ‘cannot be disentangled, separated, reached or set apart by the ordinary process of law,’ but that the sum of $7,000 was on deposit in the National Bank of Commerce of St. Louis to the credit of the Ozark Cooperage & Lumber Company of New Jersey at the time of the filing of the petition. The prayer of the petition is as follows:
“ ‘Wherefore, plaintiff prays that this court will order, decree and appoint one receiver for said Ozark Cooperage Companies, Number One and Two, respectively, and said Ozark Cooperage & Lumber Company of the State of New Jersey, 'to impound all the assets of said companies and to disentangle all the assets of all of said companies and take charge of the affairs of said three corporations, and apply, out of the assets of said Ozark Cooperage Company Number One, now intermingled as aforesaid, so much thereof as will pay plaintiff’s said judgment, with interest and costs; and that the defendant herein, the said Ozark Cooperage & Lumber Company of New Jersey, be restrained and enjoined from drawing any check or checks upon the fund aforesaid, now on deposit in said National Bank of Commerce, in St. Louis, and that said bank be restrained and enjoined from paying out any moneys on said checks; and that the affairs of the said Ozark Cooperage & Lumber Company of New Jersey, said above described fraudulent corporation, be wound up, and that it, and its officers and servants, be forever restrained and enjoined from further doing business in the State of Missouri. And that the affairs of said Ozark Cooperage Company Number One, and of said Ozark Cooperage Company of St-. Louis, Missouri, being 'Company Number Two, be finally wound up by this court, and that plaintiff recover his claims out of said assets, and for such other and further and general relief, whether of the same or of a different nature, as to the court may seem meet and proper.’ ”

We are of the opinion that this court has no jurisdiction over this appeal. The real amount in controvers7 i-s the'$1646.01 judgment debt, plus an unknown amount of interest and the monetary value of the possession, under a receivership, of the corporation’s property, until such time as the above judgment debt can be satisfied therefrom.

“It is settled that, where the right of appeal depends on the value of the matter in dispute, such value must be estimated in money. When the object of- the suit, however, is not to obtain a money judgment, but other relief, the amount involved must be determined by the value in money of the relief to the plaintiff, or the loss to the defendant should the relief be granted, or vice versa, should'the relief be denied.” [State ex rel. E. L. & P. Co. v. Reynolds, 256 Mo. 710, l. c. 719.]

In the recent case of Bates v. Werries, 196 S. W. 1124, the question of the “amount involved” where a temporary receivership was ordered pending the litigation, was discussed and it was there held by Court in Banc as follows, 1. c. 1126:

“Where the judgment affects merely the temporary control of property as contra-distinguished from the permanent divestiture of title thereto, the amount in dispute should be the financial value of such control, or loss of control, as the case may be, and not the value of the property controlled. ’ ’

Under the allegations of the petition in the case at bar the plaintiff could in no event recover more than enough to satisfy his debt and the costs of suit. And the only loss which defendant could possibly sustain under the pleadings would be an amount sufficient to pay the debt and costs of suit plus the financial value of the temporary loss of the control of its cprporate assets pending any receivership which might be ordered in aid of the main suit.

It does not appear nor can it be inferred from this record that the amount thus involved would exceed $7,500 and therefore confer jurisdiction here.

The fact that the prayer of the petition may contain some extravagant requests or demands '(in no manner based upon the allegations of the petition), as for instance, that' the, affairs of the corporation be “wound up” and the corporation enjoined from further doing business in the State, does not mean that such portions of the prayer should be considered in determining a jurisdictional question.

In the case of Wilson v. Drainage & Levee District, 237, Mo. 39, l. c. 40, Court in Banc, in discussing the rule for determining the amount in dispute when a demurrer is sustained to a petition, said: “To determine the amount we must, therefore, go to the petition itself. We are not bound by the prayer of the petition, but must take the whole instrument and determine what sum is involved.” (Italics ours). And more especially should the above rule be applied where, as here, we are dealing with a portion of the prayer which is not germane to the subject-matter of the petition, but one wholly foreign to the purposes for which the suit was (as shown by the allegations of the petition) attempted to be instituted.

It follows that the cause should be transferred to the St. Louis Court of Appeals.

It is so ordered.

All concur.


author: "WALKER, J.

text:
    MICHAEL J. HURLEY, Appellant, v. UNIVERSAL CLAY COMPANY, PHIL R. TOLL, LOUIS L. SEIBEL, U. S. EPPERSON and ALFRED TOLL.
    Division Two,
    June 3, 1919.
    1. APPEAL: Prom Order Overruling Motion To Set Aside Eeceiver’s Sale. Prom an order of the circuit court overruling a motion of a stockholder of a corporation to set aside a sale by the company’s receiver of its properties to pay debts, previously approved by the court, no appeal is provided by statute. The right to review being purely statutory, no such appeal will be entertained. Where other issues are presented, among them, whether the individual defendants have paid for their shares of stock and the duty imposed by law upon the receiver to conserve and collect the company assets and pay its debts, the sale is but a preliminary step in the proceeding, and the court’s ruling upon the motion to set it aside is not a final judgment, but only an interlocutory order, from which there is no appeal.
    2. -: -: Substantial Evidence to Support Sale. A motion to set aside a sale by a receiver of an insolvent company’s plant, on the ground that the property was worth more than was received for it, that the notice of sale was insufficient, that others were not given the same opportunity to bid as the purchaser and that the receiver’s report did not disclose the terms upon which the property had been sold, lies on the law side of the court, and in the presence of substantial evidence to support the action of the court in overruling the same, a review is not permissible.
    Appeal from Jackson Circuit Court. — if on. Battle McGardle, Judge.
    Dismissed.

      John H. Lucas, William G. Lucas, and John F. Garner for appellant.

      Gage, Ladd S Small, Morrison, Nugent & Wylder, and H. L. Eassler for respondents. •
   "WALKER, J.

This is an appeal from the overruling by the Circuit Court of Jackson County of a motion to set aside an order approving a receiver’s report of sale.

A suit bad been instituted in said circuit court by plaintiff as a shareholder, for the appointment of a receiver for the defendant, the Universal Clay Company. The petition alleged that the individual defendants, who were in official and actual charge and control of the property of the company, had not paid for their capital stock therein and had so wasted and mismanaged its affairs as to render the appointment of a receiver necessary to protect the remaining assets from being dissipated and lost. The prayer asked that said der fendants be enjoined from any further participation, official or personal, in the conduct of the business or management of the property of the company, and that the receiver appointed be directed to take charge of its entire property, enforce the payment by defendants of the capital stock subscribed for by them, and for general equitable relief.

The individual defendants, answering, denied the allegation of waste and mismanagement, and declared that the stock held by them had been paid for in full; that at the time plaintiff became the owner of stock in the company, which was in 1915, two years after its organization, and at all times thereafter, he had full and complete knowledge of the organization of the company, the manner in which its stock was paid and the condition of its business and affairs; that after so acquiring.said stock plaintiff, by his attorney, inspected the stock book and minute books of the company and its articles of incorporation, and thereafter presented the certificates of stock so acquired for registry in his own name; that at the time plaintiff acquired said stock active operations at -the plant of the company had ceased; that ever since said date no action had been taken by these defendants except that which was absolutely necessary to protect and preserve the property.

These defendants further stated that the company had no money with which to operate its property or to pay its debts; that the company cannot be operated with profit in its present condition; that it has an unsecured indebtedness of approximately $71,000, on account of moneys loaned and advanced to it, in addition to a deed of trust for* the principal sum of $33,890.35, now a lien upon its property.

The defendants therefore, prayed the court to be relieved of the demands of plaintiff; that a reference be had to determine and liquidate the indebtedness of the company, and that the receiver appointed be directed to sell the property, pay the debts, and for such other and further relief as to the court shall seem just and proper.

After a hearing on the application of the plaintiff for the appointment of a receiver, with the consent of defendants, who were all present either in person or by counsel, the application was granted and a receiver was appointed. After qualifying by giving bond as required, he was directed to take charge of the property of the company and report his proceedings to the court, and apply from time to time for such further orders and decrees as might be deemed necessary. Under this order the receiver took charge of the property, and thereafter reported, among other things necessary for the information of the court, that he had found the company’s business at a stand-still, and its plant inoperative; that it was burdened with debt, with no money on hand, and that the plant, consisting of kilns and other instrumentalities for the manufacture of fire bricks, was in a dilapidated and worn out condition, and that the implements and machinery were obsolete. That he had found the company to be wholly insolvent and unable to discharge its indebtedness; that its attempted operation would but involve it more deeply in debt and that a sale of the property, which consisted principally of a tract of land from which the clay products had been obtained, would be necessary to a realization of anything of value for the stockholders from the assets. The receiver therefore asked that an order be made for the salle of the property, the terms and conditions of same to be submitted to and approved by the court before the sale was consummated.

Thereafter, on the 19th day of October, 1915, all of the parties, plaintiff and defendants, being present by their respective counsel, the receiver’s report was taken up and evidence heard thereon; after a consideration of same the court found, so far as pertains to the matter here at issue: “That the property of said company is encumbered by a deed of trust now amounting to about $34,000; that in addition to said deed of trust said company is indebted in the sum of about $80,000; that there is no money on hand to pay said indebtedness; and it was ordered that the said report of the receiver be, and is, approved; that he be, and is hereby, authorized to borrow money for current expenses, and to give receiver’s certificates therefor; that the property and plant of defendant, Universal Clay Company (describing it), be sold at public or private sale, to the highest and best bidder for cash, or on such other terms as he can best secure.; that said receiver negotiate with and seek purchasers for, and advertise the sale of, said property in such newspapers or publications as in his discretion will give such sale due publicity; that he hold the bidding open until the 1st day of January, 1916, at which time he shall proceed to sell said property to the highest and best bidder as aforesaid, but not' for a less sum than $-, said sale to be reported to this court for confirmation.”

On the 19th day of January, 1916, the receiver presented to the court his report, wherein he stated that he had endeavored, by advertising, correspondence and personal negotiations, to obtain bids for the property ; that he had been able to secure but one bid, which he submitted to the court. The receiver further stated that he Relieved “that further effort on his part to find a purchaser of said property will be of no avail, and he recommends that the bid herewith submitted, to-wit, that of Phil R. Toll, for $76,000, on the terms therein stated, be accepted, and that he be ordered to make a receiver’s deed therefor.”

The report further stated that the receiver and his attorney, in the endeavor to carry out the orders of the court, had visited and personally inspected the property of the Universal Clay Company, and had looked after its affairs carefully and diligently. There were present in court on this occasion the receiver and his attorney and the attorneys for defendants, Rut neither plaintiff nor his attorney appeared.

Before any proceedings were had with regard to said report, or sale, one of the attorneys for defendants called plaintiff’s attorney on the telephone, and reminded him that the sale was to take place that day, and that the receiver was in court, and about to take up the question of the sale and its consummation. That counsel for plaintiff stated that the bid should remain on file, so that plaintiff mig’ht object to same; that counsel for defendants stated that it was the circuit judge’s opinion that under the order, the sale should be made on that day; thereupon counsel for plaintiff stated he did not'know whether he would appear; thereafter, before any proceedings were had, he called counsel for defendants over the telephone, stating that 'he did not care to' come down. This testimony is undisputed.

Thereupon, the report of sale was submitted to the court, and the court ordered that said report, and the sale as therein reported, ’be approved, and ordered the receiver to execute a deed for the equity in the plant and property of the Universal Clay Company to Phil R. Toll, for the consideration of $76,000, to be paid as specified in his bid.

On the 4th day of February, 1916, plaintiff ‘ filed a motion to set aside the order approving and confirming the receiver’s report of sale and directing him to make a deed. The grounds of this motion, in substance, are, that no sufficient notice of the sale was given; that the amount offered was inadequate; that the unpaid stock subscriptions, personal assets and choses in action of. the company were in excess of its liabilities.; that plaintiff was not given an opportunity to object to said sale and thereby denied his day in court; that the court refused to direct the receiver to sue for the unpaid- subscriptions before approving and confirming the sale; that the court’s action resulted in a taking of plaintiff’s property without due process o'f law; that the report of the receiver of the sale was indefinite in not disclosing the terms and conditions upon which the property had been sold; that the notice was insufficient to inform prospec'tive purchasers of the conditions upon which the property could be purchased; that there was but one bid and others were not given the same opportunity as the purchaser to bid on the property.

Wherefore, it is prayed that the order approving the sale be set aside and that all proceedings therein be stayed until the unpaid stock of said company has been paid and for such other orders as may be just and equitable.

Upon the hearing of this motion, the court permitted evidence to be offered which showed that the receiver had advertised the property for sale in certain trade journals devoted to that character of industry, and that no other notice had been given; that the minimum price of the property was not fixed by the court; that a motion had theretofore been filed by plaintiff, and overruled, to vacate the order of sale, on the ground that the company’s assets were sufficient to meet its liabilities without a sale of the entire property; that but one bid, that of Phil R. Toll, the purchaser, had been made and that the sale made to him was a private one; that his bid was $76,000, and the terms and conditions of same were shown; this bid as well as the court’s entries and orders in regard thereto, including the order of approval and that the receiver make a deed and bill of sale of the property to Toll, were in evidence. Testimony was also introduced as to the value of the property, the maximum estimate being more than $400,000 and the minimum from $60,000 to $75,000. There was also testimony that counsel for plaintiff was cognizant of Toll’s bid for the property. Upon this testimony the court overruled the plaintiff’s motion, approved the sale and, over plaintiff’s objection and exceptions, ordered the receiver to make a deed to the purchaser.

Plaintiff thereupon filed an affidavit for an appeal, which was granted, and, in this state of the record, the plaintiff asks a review.

The error assigned is the overruling of plaintiff’s motion to set aside the order approving the sale and directing1 the receiver to make a deed.

The proceeding upon this motion was heard helow, was appealed from, and is presented here upon the theory which seems to he acquiesced in by both parties that the court’s ruling thereon was a final disp0Sy¿0]Q 0f the case, or such a complete determination of same as to have the force and effect of a final judgment or one in which the trial court’s jurisdiction has been exhausted (State ex rel. C. B. & Q. Railroad v. Bland, 189 Mo. l. c. 216). Upon no other theory is the case entitled, under our appellate procedure, to a review. The suit out of which the motion in question arose is still pending. Other issues presented by the\ pleadings and matters of procedure necessary to the disposition of a case of this character have not, in the one instance, been determined, or in the other, complied with; notably, in the first, there remains the court’s duty to hear and determine the question as to whether or not the individual defendants have paid for their shares of stock in the company — an issue sharply presented by the pleadings; and second, the duty imposed by law upon the receiver to conserve and collect the assets of the company, liquidate its debts, wind up its affairs and distribute its assets, and make a final report of his administration of the affairs of the company tc the court (Sec. 3365, R. S. 1909). The sale of the property, therefore, was but a preliminary step in the proceeding, and the court’s ruling upon the motion to set the same aside cannot be construed to be other than an interlocutory order, and hence not appealable.

The right to an appeal being purely statutory, although it is remedial and hence should he liberally construed (Stid v. Ry., 211 Mo. 411), does not authorize us, in the face of the limitations of the statute (Sec. 2038, R. S. 1909), to add to the conditions under which appeals may be taken from interlocutory orders. Not-' withstanding the remedial nature of the statute, a strict compliance with its terms is necessary to confer jurisdiction on this court (Millar v. Transit Co., 216 Mo. l. c. 103).

The course pursued by the parties below when this motion was under consideration, and their attitude here, would impel us to review the facts if, as stated, statutory authority existed therefor. We are not only precluded, however, by an absence of statutory power, but for the additional reason that this motion lies on the law side of the court, and in the presence of any substantial evidence a review of same is not permissible (Holden v. Vaughan, 64 Mo. 588; State ex rel. Hartley v. Innes, 137 Mo. App. l. c. 423).

A sufficient examination has been made of the facts to sustain the conclusion that there was substantial evidence to authorize the trial court in overruling the motion. Therefore, for the reasons stated, it follows that this appeal must be dismissed, and it is so ordered.

All concur.


author: MOZLEY, C. PER CURIAM:

text:
    MELISSA MESSER, by WILLIAM F. YATES, Her Guardian, Appellant, v. ALICE HELFER, EVERETT ENDSLEY et al.
    Division Two,
    June 3, 1919.
    1. INSANE GRANTOR: Capacity to Make Deed of Trust: Poverty. Childbearing and poverty of a married woman do not constitute evidence of insanity.
    2. -:-: Renting Property. Refusal to rent land to a certain person, although desirous of renting it in order that she might apply the rent money on a mortgage debt, does not constitute proof 'of the owner’s insanity.
    3. -:-: Sudden Change of Conversation. Sudden change in the subject of conversation, or abruptly walking away from those with whom she was conversing, is not evidence of mental incapacity in the grantor in a deed of trust.
    4. -: -: Rough Speech. Speaking roughly to or about her children it not of itself evidence of mental incapacity to make a deed of trust.
    5. -: -: Singing Popular Song. The occasional singing of a verse of a popular song by the mother of children is no evidence of her mental incapacity to make a deed.

      6. -: -: Making Com Dodgers on Stove. The making of corn dodgers on a stove, instead of in a pan, by the poor mother of seven or eight children, is not evidence of mental incapacity to make a deed of trust for borrowed money. •
    7. -: -: Eccentricities. Peculiarities and eccentricities of the grantor do not render invalid her deed of trust, if she had sufficient capacity to understand the nature and effect of the transaction.
    8. '-: -: Subsequent Insanity. The fact that the grantor, three months and twenty-nine days after she made a deed of trust on her land to secure money borrowed, was adjudged insane upon a lunacy inquiry, in the probate court and has since been insane, does not, in the absence of any evidence that prior to executing the instrument she was insane or otherwise mentally incapacitated, afford a sufficient ground for setting aside the deed.
    Appeal from Ray Circuit Court. — Hon. Frank D. Divelbiss, Judge.
    Affirmed.

      Lavelock d Kirkpatrick and Martin E. Laivson for appellant.
    (1) The record of adjudication of insanity was conclusive as to the condition of Mrs. Stack (Messer) on June 24, 1895, and since that date. Crow v. Meyersieck, 88 Mo. 411. (2) If E. M. Endsley knew the plaintiff was not competent to transact business or knew enough about her condition to put him on inquiry then his mortgage was void, and defendants have no title. 23 Am. & Eng. Ency. Law (2 Ed.), 484. (3) If Mrs. Stack was not competent to make the deed of trust, when made, and E. M. Endsley did not know that fact, or did not know enough to put him on inquiry as to her condition, yet the deed is void, and he is entitled only to reimbursement for the amount loaned, less rentals. (4) Having received back in rentals many times the amount loaned, the condition is the same as to the validity of the deeds and their cancellation, as if he knew the facts. He has been reimbursed by her. (5) The maker of the deed of trust being incompetent to make it, it must he set aside. The only question is one of reimbursement under the facts.

      M. J. Henderson, Garner, Clark & Garner, John C. Jacobs and George W. Crowley for respondents.
    (1) Even in equity cases, if the evidence introduced by the respective parties is contradictory and conflicting, this court has repeatedly held that the chancellor, since he had the witnesses before him, with the opportunity of observing their demeanor upon the witness stand and their manner of testifying, is in a much better position to judge their credibility and the weight to be given their testimony than is the higher court. While in equity cases this court has the right to review and weigh anew the evidence, the usual practice is to defer largely to the findings of the trial court on all issues of fact, and this court will refuse to disturb the judgment of a trial court on the ground that the findings are against the weight of the evidence. Jones v. Thomas, 218 Mo. 540; Huffman v. Huffman, 217 Mo. 191; Daman v. Reeme’s Executor, 246 Mo. 240; Brecken v. Fillingham, 209 Mo. 583. (2) The law authorizes a person who is compos mentis to make such a disposition of his property as he pleases and the burden of proving that he was mentally incapable, of making a deed is upon the plaintiffs. The test of mental capacity is: did the grantor understand the nature of the business in which he' was engaged and the effect of what he was doing? The evidence produced at the trial of this case not only failed to establish mental incapacity on the part of •Melissa Stack, but, on the contrary, affirmatively and by overwhelming proof, established sufficient mental capacity to execute the deed. Pennington v. Stanton, 125 Mo. 658; Chadwell v. Reed, 198 Mo. 359; Wilson v. Jackson, 167 Mo. 135; Studybaker v. Cofield, 159 Mo. 596; Kinzer v. Kinzer, 130 Mo. 126; Cutler v. Zollinger, 117 Mo. 92; Rickey v. Baines, 168 Mo. 600; 22 Cyc. 1170; Buckey v. Buckey, 38 W. Ya. 168. (3) The finding of the chancellor in this case was proper, for the further reason that there was no evidence introduced showing that E. M. Endsley, the beneficiary in the deed of tfust, had any knowledge or such information with respect thereto as would put a prudent man on inquiry, that Melissa Stack was mentally incapable of making a deed. Rhoades v. Puller, 139 Mo. 187.
   MOZLEY, C.

The plaintiff, Melissa Messer (formerly Melissa Stack), brings this action by William F. Yates, her guardian, and it has for its purpose the setting aside of a certain deed of trust executed by the plaintiff on the 25th day of February, 1895, in which one Steven Messer was made trustee, to secure to-one E. M. Endsley a note for $500, which sum he, on said date, loaned to the plaintiff. Said deed of trust covered the east half of the northeast quarter of section eleven, township fifty-one, range twenty-nine, in Ray County, Missouri, except a tract theretofore conveyed to one Brasher off the east and south sides thereof for a private road.

The petition is in two counts, the first in equity and the second' in ejectment. The first count' bases' plaintiff’s right to have said deed of trust set aside on the ground that she was without mental capacity to make it at the time it was executedthat is on said 25th day of February, 1895, and further seeks to set aside the deed to the purchaser under the foreclosure sale under said deed of trust and all mesne conveyances from said foreclosure sale of said land down to defendant Everett Endsley, and that they he declared a cloud upon plaintiff’s title, cancelled and for naught held, and that the title thereto he decreed in the plaintiff. The second count merely seeks to recover the possession of said land.

On the 17th day of August, 1891, the plaintiff, Melissa Messer (at that time Melissa Stack), by warranty deed from William Vance and wife, became the owner in fee of the land above described and, as above stated, executed said deed of trust thereon on said 25th day of February, 1895. On the 27th day of February, 1895, just two days after said deed of trust was executed, plaintiff and Steven Messer, the trustee therein, intermarried. On the 24th day of June, 1895, plaintiff was adjudged by the probate court of Ray County to be of unsound' mind and incapable of managing her own business and a guardian was appointed for her. This proceeding was had three months and twenty-nine days subsequent to the execution of said deed of trust. On the 3rd day of April, 1897, default having been made in the payment of the debt and interest in said deed described, and the trustee therein, the husband of plaintiff, having refused to act, the then acting sheriff of Ray County, at the request of the legal holder of said note, foreclosed said deed of trust in due and legal form, and the holder and owner of said note, E. M. Endsley, became the purchaser of said land for the price and sum of $600 and, as above stated, the title thus acquired, by subsequent conveyances, vested in Everett Endsley for a valuable consideration.

There is no controversy in the pleadings, or otherwise, between plaintiff and defendant except as to the mental capacity of the plaintiff to make said deed of trust on the date it was made, the plaintiff, by her guardian, asserting that she was mentally incapacitated to make it and the defendant that she was not, and further contending that the proof brought in support of the affirmative of the proposition, if true, was wholly insufficient to establish mental incapacity on her part to make said deed of trust on the date that it was made. This proposition was the crux of the case in the court below, and as will readily be seen, it is solely a question of fact. All testimony tending to prove the sanity of plaintiff after she had been adjudged insane by the probate court on the 24th day of June, 1895, was by the court excluded from1 consideration. Many witnesses were examined and the learned chancellor after seeing the witnesses and hearing all of the competent testimony that was offered, resolved this question of fact in favor of defendant, evidently taking the view that there was no testimony establishing mental incapacity of plaintiff to make said deed of trust on the 25th day of February, 1895, and decreed that plaintiff was of sound mind at that time, and also that defendant, •Everett Endsley, was the owner of said land and that his co-defendants had no interest therein.

Motions for new trial and in arrest of judgment were filed and overruled hy the court, and plaintiff •comes here as appellant. In this court learned counsel for appellant have limited the issue presented for our determination to a single question of fact, that is, was the plaintiff mentally incapacitated to make said deed of trust on the 25th day of February, 1895% We quote from appellant’s leply brief as follows:

“The appellant does not question the law cited hy respondent, but says that no one can carefully read the evidence in this case and come to any other conclusion than that Melissa Messer, at the making of the deed of trust in question, and for a long time before, was wholly incapable of understanding the deed of trust, and ever since then has remained in that condition.”

The issue thus presented necessitates an examination of the facts relied upon by appellant to establish mental incapacity and the facts offered hy defendant tending to prove mental capacity. ' Many witnesses testified, hut we shall not do more than to set out the substance of their testimony. On the part of the plaintiff it shoys, (a) that she was the mother of seven or eight children and that she did not dress them or herself in accordance with the idea entertained by some of the witnesses, although the record abounds with undisputed evidence of her squalid poverty. We pass this feature of the testimony with the remark that, in our judgment, it would be a dangerous attempt for a court to undertake to establish as a precedent that childbearing and poverty, either singly or combined, constituted evidence of insanity. '(b) Further it was testified that she hesitated about, and finally declined, to rent her farm on which the-deed of trust in question had been placed, to one of the witnesses. If this incident has any probative value whatever, it manifestly would be in favor of plaintiff’s sanity. It discloses that she knew he was trying to rent her farm and that she declined to contract with him. She may have had many reasons for declining to rent to this witness which were entirely satisfactory to her. We think her conduct in this transaction shows, unmistakably, that she understood and appreciated what she was about and could not, therefore, by any possibility, be distorted into evidence of insanity, (c) The evidence on the part of plaintiff further shows that, in conversation, she occasionally changed the subject rather abruptly and would possibly walk away. This has been done many times by persons to whom no suspicion of mental incapacity attached. The writer has always regarded (and now regards) such conduct most frequently in the light of necessary self-defense rather than as furnishing evidence of mental incapacity of one who was probably tired of a conversation, (d) It is further said that plaintiff spoke roughly to or about her children. This could have happened and yet furbished no evidence of mental incapacity. (e) It is also proven that she would ocea"sionally sing a verse of that once popular song, “After the Ball is Over.” and this is charged as an item of her alleged insanity. Historically speaking, it will be recalled that at about the time of plaintiff’s alleged mental incapacity, this song was one of the most popular songs extant. It was sung on all the stages and by all the musically inclined off the stage and even by those who had no music in their souls. All were singing or trying to sing this song manifestly with no thought upon their part that subsequently they might be accused of furnishing evidence of their own mental incapacity. This song has had its period of popularity — has run its course — and has, like many others once popular, passed into “innocuous desuetude,’* and we hesitate to hold that because Mrs. Messer occasionally sang a. verse of it while it was popular she thereby furnished evidence of mental incapacity to make the deed of trust in question, (f) A fair sample of what the witnesses relied on in reaching their conclusion that plaintiff was insane when she made the deed of trust, I find in the testimony of Isom Turner, and, as it throws light on the probative value of the whole of plaintiff’s evidence upon which reliance is placed to set aside said deed of trust, we quote the following therefrom:

“Q. You say you did not regard this woman as being insane at all? A. I didn’t think she was"bright by any means.
“Q. You didn’t think she was an insane person? A. Well I coul(jn’t say I thought she was insane. I thought she was an idiot. — G-. But you say she wasn’t insane? A. I couldn’t say she was or wasn’t, but I don’t think she had a good mind.
“Q. You say the only evidence you had to make up your mind that she was of unsound mind, she made corn dodgers on the stove? A, And other things, I have had her turn her stock right out in my field.
• “Q. What made you think jt wasn’t right to cook dodgers on the stove? A. I always had mine in a pan.
“Q. Old fashioned folks used to put them on a griddle? A. I never made mine—
“Q. You don’t mean to tell the court that she was crazy because she put dodgers on the .stove? A. I am only telling what you tell—
“Q. The finest hotels in the country broil meat and make toast on the stove? A. Not for me they don’t.
“Q. And you think that a person that would do that and would make bread on top of the stove would be regarded as of unsound mind? A. Take it just as you like it and the court can decide, but they dont cook mine on top of the stove.”

The foregoing’ constitute the chief items of .alleged unusual conduct upon the part of Mrs. Messer which are relied upon as showing that she was mentally incapacitated to make said deed of trust. We are forced to the conclusion that it falls far short of establishing her mental incapacity to make said deed of trust on said 25th day of February, 1895. It may be, and doubtless is true, that she was peculiar and eccentric, but it stands out prominently in this record and is worthy of note that no question was made as to her sanity from August, 1891, when she bought the land from Vance, until the 24th day of June, 1895, as above stated three months and twenty-nine days after she had borrowed the money from Endsley and executed the. deed of 'trust in question to secure the payment thereof.

On the other hand, without undertaking to set out in full the evidence offered by defendant, it is sufficient to say that it discloses that she bought the land in controversy from Vance and, in doing so, went on the land, two strips (once alone and once with her mother), to inspect it; that she was satisfied with it, but thought she ought to pay not more than $1400, but did, on the advice of her half brother, pay $1500; that this sum was paid by her check with her own money, she signing the check and handing it to Vance and he, in turn, handing the deed to tier. It shows that she placed said deed of trust on the land which was duly executed and acknowledged by her, and that no one questioned her mental capacity nor was there any suggestion that she did not' know precisely what she was doing; it shows that shortly thereafter she sought to rent the land to one of the witnesses for cultivation with the view of having the rental applied to the discharge of the debt and interest mentioned in said deed of trust; it shows also that she took care of her stock and milked two cows, etc. These things are undisputed by the record and, to our mind, establish the contrary of mental incapacity.

As we view the record there is no evidence of any probative value tending to establish mental incapacity of plaintiff on said 25th day of February, 1895, or at any other date prior to the 24th day of June, 1895, when she was adjudged to be of unsound mind by the probate court of Ray County, and that incident, as above stated, was three months and twenty-nine, days after the execution of said deed of trust, and is, in our opinion, too remote, under the facts of this record, to throw any light on her mental condition when said deed of trust was made.

The test in determining whether one had sufficient mental capacity to make a valid deed has uniformly been held by the authorities of this State to be: “ Mere peculiarities or eccentricities of the grantor do not make a deed invalid, if he had sufficient capacity to understand the nature and effect of the transaction.” [Ellis v. McNally, 177 S. W. (Mo.) 654; Huffman v. Huffman, 217 Mo. 182; Chadwell v. Reed, 198 Mo. 350. J

In the case last cited the learned judge held the test of making a valid deed as follows:- “The legal test of the capacity of a grantor making a voluntary conveyance of all of his property to his wife, to the exclusion of his children, is his capacity to understand the matter in hand and the effect of the transaction.”

"Without further pursuing the subject, we hold, upon the whole record, that Melissa Messer, at the time she executed the deed of trust in question, was capable of understanding the nature and effect of the business, she was engaged in and was fully competent to make said deed of trust. "We hold, therefore, that the casé was properly tried in the court below, and accordingly affirm the judgment.

Railey and White, GC., concur.

PER CURIAM:

The foregoing opinion by Moz-

eey, C., is adopted as the opinion of the court.

All of the judges concur.


author: WALKER, J.

text:
    THE STATE v. CAROL T. BYRD, Appellant.
    Division Two,
    June 3, 1919.
    1. INDICTMENT: Misspelling Word. Spelling the word premeditatedly “premediatedly” twice in an indictment charging murder in the second degree, whether a clerical error or mistaken orthography, did not tend to prejudice the substantial rights of the defendant on the merits, and constitutes no valid objection to the sufficiency of the indictment.
    2. INSTRUCTION: Referring to Indictment. Reference in an in-' struction to the indictment does not constitute prejudicial error unless it leaves to the jury no other alternative to determine their duty than such reference.
    3. -: Shot Fired by Another: Aiding and Abetting: No Evidence. An instruction, based on the assumption that there was testimony that another than defendant had fired the fatal shot and telling the jury that if they believe defendant was present, aiding and abetting, they may find him guilty, is error, if there is no evidence to sustain the assumption; and if it rests upon nothing more substantial than that the fatal shot may have been fired by another, a conviction cannot be sustained.
    4. REMARKS OF PROSECUTING ATTORNEY: Abuse of Defendant: Preservation for Review. Flagrant personal abuse of defendant, and statements not based on testimony, if properly, preserved for review, will work a reversal; but if no exceptions were saved to adverse rulings on objections thereto, and no requests were made that the prosecuting attorney be rebuked, they cannot be considered on appeal.
    5. INSTRUCTION: Good Character. The statute (Sec. 5231, H. S. 1909) requires that an instruction upon good character be given “whenever necessary,” and those words mean that such an instruction should be given whenever there is substantial evidence adduced of good character, and not otherwise.
    Appeal from Jefferson Circuit Court. — Ron. E. M. Rearing, Judge.
    Reversed, and remanded.

      P. S. Terry, Charles J. White, and Clyde Williams for appellant.
    (1) Instruction numbered one refers the jury to the indictment to determine what they must find in order to convict, and is therefore erroneous. State v. Constitino, 181 S. W. 1155; State v. Baker, 246 Mo. 374; State v. Marion, 235 Mo. 375; State v. McCaskey, 104 Mo. 644; State v. Brown, 104 Mo. 365. (2) Instruction 2 is erroneous because it does not define all the elements of murder in the second degree and because there is no evidence of a common piirpose on the part of defendant and anyone to kill the deceased, and there is no evidence to support it. State v. Darling, 216 Mo. 464; State v. Meyers, 174 Mo. 359; State v. Hickman, 95 Mo. 332; Brouster v. Pox, 117 Mo. App. 724; 16 Corpus Juris, p. 128, sec. 115; 12 Cyc. 188; 12 Cyc. 189, n. 57; Horton v. Commonwealth, 99 Ya.-848. (3) The court failed to instruct on all the questions of law in the case. Sec. 4468, R. S. 1909. (4) The prosecuting attorney made improper and prejudicial statements in his argument to the jury; (a) In abusive language; (b) Going oustide the record; (c) Misstating the law. State v. Young, 99 Mo. 683; State v. Reed, 71 Mo. 200; State v. Mahly, 68 Mo. 319; 12 Cyc. p. 584 (C). (5) The court failed to instruct on the good character of defendant. ,R. S. 1909, sec. 5231; State v. Anslinger, 171 Mo. 600.

      Frank W. McAllister, Attorney-General, and Henry B. Hunt, Assistant Attorney-General, for respondent.
    (1) The indictment is sufficient. Sec. 4449, R. S. 1909; Kelley’s Crim. Law, sec. 474; State v. Conley, 255 Mo. 187,196.(a) The words ‘‘dangerous and deadly weapon” were not necessary to this indictment. State v. Miller, 264 Mo. 404. (b) The misspelling of the word premeditatedly is not reversible error. State v. Morehead, 271 Mo. 87. (2) Instruction 1, when read in connection with instruction 6, is not fatally erroneous because it refers the jury to the indictment. State v, David, 131 Mo. 396, 398; State v. Washington, 242 Mo. 408; State v. Coleman, 186 Mo. 161; State v. Layton, 191 Mo. 615. (a) Instructions must be considered all together, and if, as a whole, they present all the essential elements of the offense, they are not erroneous. State v. Kinder, 184 Mo. 295; State v. Montgomery, 230 Mo. 671. (3) Instruction 2 is not erroneous. It requires the jury to find the constituent, elements of murder in the second -degree; and the evidence clearly shows that appellant, with others, was pursuing and shooting at deceased. Sec. 4898, R. S. 1900; State v. Orrick, 106 Mo. 119; State v. Valle, 164 Mo. 550, 551; State v. Gooch, 105 Mo. 396, 397; State v. Miller, 156 Mo.' 86; State v. Murray, 193 S. W. 832. (a) Proof of aiding and abetting may be by circumstantial evidence. State ■v. Gooch, 105 Mo. 396; State v. Valle, 164 Mo. 551; State v. Darling, 199 Mo. 199; Brouster v. Fox, 117 Mo. App. 723, 724. (4) Instruction 5, limiting the effect to be given the evidence as to appellant’s bad reputation, is in approved form. State v. Weeden, 133 Mo. 78, 84; State v. Phillips, 233 Mo. 306. (5) The court’s failure to instruct on appellant’s good character was not error. The only evidence adduced was as to appellant’s character as a witness and not as a defendant. Sec. 5231, R. S. 1909; State v. Cook, 207 S. W. 833; State v. Anslinger, 171 Mo. 607; State v. Beckner, 194 Mo. 292; State v. Kelly, 73 Mo. 616; State v. Gartrell, 171 Mo. 519. (6>) The remarks of counsel complained of are not before this court for review. State v. Baker, 264 Mo. 353; State v. Phillips, 233 Mo. 307; State v. Souva, 234 Mo. 571; Morris v. Railroad, 239 Mo. 721; State v. Connors, 245 Mo. 477; State v. Humfeld, 182 Mo. App. 644.
   WALKER, J.

Defendant was indicted in the Circuit Court of Jefferson County for murder in the second degree, charged with the ldlling of one Rae Sellers, by shooting him with a pistol. Upon a trial, he was found guilty, as charged, and sentenced to ten years’ imprisonment in the Penitentiary. From this judgment he appeals.

The deceased was employed as an electrician by a street fair company, while the latter was holding what was termed a carnival at Crystal City. The exhibitions of. the company were conducted in a series of tents. The deceased, a short time before he was shot, had been engaged in an altercation which, from the record, appears to have been limited to words with a cook employed by the company, which arose from the deceased having cut the lighting wires which connected the cooking tent with the dynamo, or source of supply. Immediately after this difficulty the deceased was seen running northwardly up the midway between the tents of the company, pursued, by appellant' and one Cross, the former being the township constable, and the latter the marshal of Crystal City. As is always the case in occurrences of this character, there was a marked variance in the testimony of the eye witnesses.

One witness stated that Cross was in the lead and that both officers fired their guns twice in the air; that they called to the deceased to halt, but he ran on north for about one hundred yards, the officers following him for about fifty yards, and turned to the east at one of the tents. Another witness saw appellant shoot his pistol straight in front of him in the direction of the deceased, the appellant being at the time about twenty feet behind the- deceased. Courtois and DeClue, two boys who were riding in a Ferris wheel, saw some men running toward the river away from the show tents, a little, heavy-set man and a tall man, both shooting straight out' from their hands. These descriptions suited appellant and Cross. Courtois saw the appellant shoot while running, but neither he nor DeClue saw the man who was being pursued. Another witness saw appellant and Cross running after a man, and saw shots fired by them, but did not know which one of them did the shooting.. Still another witness heard appellant call upon deceased to stop and saw the former shoot straight in front of him in the direction of the deceased. Cross did not shoot.

Deceased ran north up the midway to the company’s Ferris wheel, turned east toward the back of the show grounds, between the Ferris wheel and one of the tents, and then ran toward the Mississippi River.

Appellant and others ran northeast between the tent aforesaid and the Ferris wheel, and shortly after they passed, two or three shots were fired close together, back of the tents and north of the Ferris wheel. At the same time there was shooting going on in one of the tents.

The Ferris wheel operator saw appellant pursuing the deceased at the time the latter ran toward the east and back of the show grounds. Appellant was ten or fifteen feet behind deceased, with a gun in his hand. When they got to the managing officer’s tent, appellant turned north, and, from a distance of ten feet, shot toward deceased, stopped to look, and went on north.. This witness saw the deceased fall behind one of the tents.

Another witness, John Bacheler, testified that he saw appellant bending over the body of the deceased back of the dance hall. The body was lying face down, with the head toward the north. Bacheler saw appellant turn the body over and heard him say, “Somebody get a doctor; I have shot the wrong man.”

This, was, in substance, the testimony for the State.

The testimony on behalf of the appellant tended to prove the -following facts:

Upon the night in question, appellant went to the cook tent, upon a boy telling him there was trouble between the cook and the electrician. The trouble was over when he gut there. He stood around for about ten minutes, and the trouble started up again. The cook jumped over the counter with a knife, and the electrician ran. Appellant and Cross took after him and called for him to stop, and appellant fired two shots in the air, but did not shoot parallel with the body of the deceased, nor did he shoot through the crowd in the midway. The deceased ran close to a lemonade stand, turned in between some tents, and then went east toward the Mississippi River. Appellant did not see him in the road east of the tent, nor after he left the, tent, nor did he shoot him or fire a shot, near the manager’s tent; he fired only two shots in the midway. Three or four shots were fired ahead of appellant, but he had nothing to do with them.

Mr. Wilson, one of the showmen, found the body and saw appellant go to it, and an unknown man ran north of where the body ' was lying. The body was about forty feet west from where appellant started.

Appellant admitted that when he went to it, he helped turn the body over, but that he did not say. “Bet a doctor; I have shot the wrong man.” Several other witnesses confirm his testimony in this behalf. Other witnesses testified that appellant did not carry a '32 automatic on the evening in question,.but carried a 45 Colt’s automatic, but that he owned a 32 automatic that shot the kind of bullet introduced in evidence; that one Jake Bennett stood back of one of the tents and shot northeast, the body being found about twenty-five feet northeast from where Bennett stood; that Bennett delivered to Meyers, nightwatchman of Crystal City, a 32 automatic revolver a short time after the killing, and was very nervous' and excited, stating that it looked very black for him; that Bennett was arrested, and held until after the inquest, when he was discharged; that a 32 steeljacketed bullet, such as is used in a 32 automatic pistol, could he fired from the revolver turned over by Bennett; that the reputation of State’s witness, Bacheler, for truth and veracity, was bad.

The evidence on behalf of appellant shows that the electrician who had the trouble with the cook was the fugitive, and that he was the one who was killed.

In rebuttal, the State introduced evidence tending to prove the following facts:

( That Bennett’s revolver was examined by one of the jurymen at the inquest, who saw that it was loaded, containing five cartridges, one of which had been fired; that the bullets were lead and not steel; that the exploded cartridge appeared like the others; that Bennett remained in that locality until August, 1917, and was, at the time of the trial, in the U. S. Army; that the revolver in question was picked up off of the ground by Bennett near the animal show, five or ten minutes after the shooting; that during the first part of the month of April, 1917, appellant was seen with a small automatic pistol, a 32 or 38 caliber, in his possession, said pistol being smaller than the pistol introduced in evidence by appellant; that the reputation of appellant for morality and good citizenship was bad.

I. The indictment is framód with the iterative and prolix particularity of a charge at common law. It defines the essentials constituting murder in the second degree and its subject-matter is not open to valid objection. Twice in the indictment the word “premeditatedly” is spelled “pre-med-i-a-ted-ly.” Whether this is a clerical error or mistaken orthography does not appear. In either case it constitutes no valid ground of objection to the sufficiency of the charge-in that it in no wise “tended to prejudice the substantial rights of the defendant on the merits.” [Sec. 5115, R. S. 1909.] As confirmatory of the disposition of this court to brush aside mere technicalities in the review of criminal cases and to reverse only upon a showing of substantial error, we adhere to the rule heretofore announced in overruling, a like contention in State v. Morehead, 271 Mo. 87, in which the identical error- now complained of was in question.

II. The first instruction given is assailed on the ground that it refers the jury to the indictment to determine the manner and means of the killing. We discussed a similar objection at some length in State v. Burgess, 193 S. W. (Mo.) 823, and after reviewing this error as presented in former cases, announced the rule that reference in an instruction to an indictment or information would not constitute prejudicial error, unless it left the jury no other alternative than such reference to determine their duty. This was not the case at bar. Other instructions fully supplied whatever was lacking in the instruction complained of.; We, therefore, overrule this contention.

III. Instruction numbered' two,' given by the court, in based on the assumption that there was testimony that another than the defendant had fired the fatal shot, and the jury is told that if they believe the defendant was present, aiding and abetting, they may find him guilty., The error in the giving of this instruction consisted in the fact that there was no evidence to sustain it. The only inference on which the assumption could be based was that there were other shots fired at about the time the defendant was pursuing and shooting at the deceased; that such other shots were fired at the latter there is no evidence; nor is there any other fact to sustain the assumption that any one was acting in conjunction with the defendant. There was no authority, therefore, for the hypothesis in the instruction of a common design or a community of purpose as existed in State v. Murray, 193 S. W. (Mo.) l. c. 832, and other cases of like type cited in respondent’s brief. While in the abstract, the instruction may not be subject to criticism, it rests upon nothing more substantial than that it may have been possible for the fatal shot to have been fired by another than the defendant. This will not-suffice to sustain a conviction. While it is not to be questioned that proof of an aiding and abetting in the commission of a crime may be shown by circumstantial evidence, none was adduced of sufficient probative force to justify the giving of this instruction.

IY. The remarks of the prosecuting attorney are, in some respects, unnecessarily abusive; and his deduction as to the. guilt of the defendant, based upon the assumption of his aiding and abetting the commission of the crime, was, as we have stated m discussing instruction number- , ed two, unauthorized. These errors were however, not preserved in such a manner in the record as to entitle them to rulings determinative of this case. Objections were in some instances made to certain remarks of the prosecuting attorney, but upon adverse rulings no exceptions were saved, or requests made that the prosecuting attorney be rebuked. These we have uniformly held to be necessary to entitle a complaint of this character to our consideration.' [State v. Shearon, 183 S. W. (Mo.) 293; State v. Baker, 264 Mo. 353.] We advert to the matter only to reaffirm what we have repeatedly said, that conduct of this character on the part of public prosecutors admits of no excuse; and where flagrant and inexcusable, as remarks always are $ou spiemens jo osnqu pmosmd ui ^sisuoo katp uoqAv based on testimony, must, when properly preserved, work reversals always prejudicial to tbe ultimate enforcement of tbe criminal law. A vigorous prosecution is not to be condemned, but commended; this does not require that counsel for the State so conduct it that the accused is not afforded a fair trial; this is a duty as incumbent upon the prosecutor as it is upon the court.

V. It is contended that under Section 5231, Revised Statutes 1909, the giving of an instruction upon good character was mandatory, and that the court erred in not so instructing the jury. The language of the statute in this behalf is as follows: . . . “Whether requested or not, the court must instruct the jury i-11 writing upon all questions of law which ar'e necessary for their information in giving their verdict; which instructions shall include, whenever necessary, the subjects of good character and reasonable doubt.” The words, “whenever necessary,” as used in this statute^, in reference to good character mean that an instruction thereon should be given whenever there is adduced substantial evidence of such character. We so declared in State v. Gartrell, 171 Mo. 519, and State v. Anslinger, 171 Mo. l. c. 606; and the construction of the statute met with our subsequent approval in State v. Cook, 207 S. W. l. c. 833. There was no evidence of defendant’s good character sufficient to authorize the giving of. the instruction, and the court did not err in this respect.

For the errors noted, this case must be reversed and remanded. It is so ordered.

All concur