source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE STATE v. WILLIAM PERSON and WILLIAM BORDER, Appellants.
    Division Two,
    April 11, 1911.
    1. INFORMATION: Burglary: Sufficiency. An information charging the defendants with breaking into and entering on a certain named date, a certain beer house of a certain named private person, the same being a building in which beer, goods and merchandise and other valuable things were then and there kept and deposited, by then and there bursting and breaking a certain padlock and chain of an outer door of said building, with intent the said goods, wares and merchandise, then and there unlawfully, feloniously and burglariously to steal, take and carry away, and eighty bottles of beer of the goods, wares and merchandise then and there in said building found, did burglariously and feloniously steal, take and carry away, ag^nst the peace and dignity of the State, is entirely sufficient to charge an offense under Sec. 1886, R. S. 1899.

      2. BURGLARY-: Instruction for Larceny: Acquittal. Where the jury found defendant guilty of burglary only, and thereby acquitted him of larceny, it is unnecessary to determine whether the court should have instructed on petit larceny as well as grand larceny.
    3. JOINT PUNISHMENT: Two Defendants. Where two defendants are convicted by the same verdict, their punishment should be separately assessed; and if separate assessment is not made by the jury, the court should assess a separate punishment, upon the verdict of guilty, in its sentence and judgment, as the statute authorizes.
    Appeal from Iron Circuit Court. — Son. Jos. J. Williams, Judge.
    Reversed and remanded (with directions).

      Elliott W. Major, Attorney-General, and John M. Dmoson, Assistant Attorney-General, for the State.
    (1) The information is valid and sufficient, duly verified by the prosecuting attorney, and legally presents the charge of burglary and larceny under the statutes, and is in approved form. R. S. 1899, sec. 1886; State v. McGuire, 193 Mo. 215; State v. Helms, 179 Mo. 280; State v. Taylor, 136 Mo. 66; State v. Frazier, 220 Mo. 86; Kelley’s Crim. Law and Prac., sec. 609'; State v. Tutt, 63 Mo. 595; 3 Chitty, Criminal Law, sec. 717; State v. Shields, 89 Mo. 259'; State v. Tyrell, 93 Mo. 354. (2) The defendants did not except to the trial court’s failure to instruct the jury on all questions of law arising in the case. No such objection can afterward be made in the appellate court. State v. McGinnis, 158 Mo. 105; State v. West, 157 Mo. 309; State v. Weber, 156 Mo. 249; State v. Palmer, 161 Mo. 152; State v. Meadows, 156 Mo. 110; State v. Norman, 159 Mo. 531. The jury found the defendant’s guilty of burglary and acquitted them of the crime of larceny. (3) The verdict of the jury is responsive to the issues joined finding the defendants guilty of burglary, as charged in the information, and fixing their punishment for a term of five years in the penitentiary, and acquitting them both of larceny. It is certain, unambiguous and positive: (4) The appellants were sentenced regularly in open court in accordance with the verdict rendered.
   PER CURIAM.

— On October 14, 1908, the prose7 cuting attorney of Iron county filed an information in the circuit court of Iron county, charging the defendants with burglary and larceny in breaking into and entering, on the 13th day of September, 1908, a certain beer house of one R. 0. Knight, the same being a building in which beer, goods and merchandise and other valuable things were then and there kept and deposited, by then and there bursting and breaking a certain padlock and chain of an outer door of said building, with the intent the said goods, wares and merchandise then and there unlawfully, feloniously and burglariously to steal, take and carry away, and eighty bottles of beer of the goods, wares and merchandise then and there in said building found, did burglariously and feloniously steal, take and carry away, against the peace and dignity of the State.

At the October term, 1908, of said court, the defendants were put upon their trial before a jury, and were convicted of burglary in the second degree as charged in the informa,tion, and their punishment assessed jointly at five years in the penitentiary. Motions for a new trial and in arrest of judgment were duly filed, heard and overruled, and the defendants sentenced to the penitentiary, and from that sentence they have appealed to this court.

The defendants are not represented in this court by counsel, but as in duty bound, we have examined the record, and upon that record the cause must be disposed of by this court.

The information is predicated upon section 1886, Revised Statutes 1899, which provides: “Every person who shall be convicted of breaking and entering any building, the breaking and entering of which shall not be declared by any statute of this State to be burglary in the first degree, or any booth or tent, or any boat or vessel or railroad car in which there shall be at the time any human being or any goods, wares, merchandise or other valuable thing kept or deposited, with intent to steal or eommit any felony therein, shall, on conviction, be adjudged guilty of burglary in the second degree.”

The information was entirely sufficient to charge an offense under this section. It alleges every essential fact required by the statute. The jury in their verdict acquitted the defendants of the charge of larceny, and it is unnecessary to pass upon the question whether the court should have instructed on petit larceny as well as grand larceny. We discover no substantial objection to the instructions of the court. They seem to cover every phase of the case .presented by the evidence.

The evidence tended to establish that Knight, the owner of the beer house, left the same about 11:30. o’clock on Saturday night, September 12, 1908, and when he left the door thereof was securely fastened by a chain and padlock. Next morning, about seven o’clock, he found the padlock broken, and there were two cases of beer and a gunny sack missing from his merchandise in the house. He thereupon notified the sheriff and his deputy, and the latter proceeded afoot in the direction of the defendants ’ home, and hid themselves in the brush, and soon after discovered the defendant Person near the bank of a creek, opening hot-1 ties of beer and imbibing the same. The sheriff heard Person whistle, and thereupon defendant Border came to Person, and they both indulged in drinking beer. The sheriff rushed upon them, when they both ran in different directions. They were both arrested. The sheriff and his deputy found the sack that had been taken from the beer house, with bottles of beer in it, and found several bottles of beer in the pockets of defendant Border and in Ms shirt bosom. The beer and' sack were identified by Knight as the beer and sack kept in his depot or beer house. Upon being arrested defendant Person said: “"What’s the matter? I just found some beer here, and was drinking it.” The sheriff told him to help- put the bottles in the sack, and Person said “he did not bring it, and he would not help take it away.”

Defendant Border put the bottles which he had in his pockets and shirt bosom into the sack. He stated that he was going to take some beer home, and Person said they intended to take the rest of it down to the creek where they were going to have a crap game.

The defendants sought to establish an alibi. They •testified to a state of facts that would have rendered it impossible for them to have been at the beer house after the time Knight had left the same until the discovery of the burglary. Person stated that he had gone out to his step-father’s house and did not see Border until next morning. Afterwards he found some beer near the point where the sheriff discovered him. He did not know who left the beer there, nor to whom it belonged, but supposed it belonged to some boys that were going to engage in a crap game down the creek. On cross-examination he testified that he had been arrested for disturbing the peace and that he had been convicted in the circuit court of Iron county for assaulting a woman, and had been punished by six months’ imprisonment. He had also been convicted and served his term for larceny. Border also testified in his own behalf, and endeavored to establish an alibi, and explained his connection with the beer which was found in his possession by saying that on his return from Arcadia that morning afoot, he saw his co-defendant standing on the creek bank, against the fence of Soc Newman’s place, about thirty yards from the main road, and Person drew Ms attention by a wMstle; that he went down to where Person was, and the latter had a pint of whiskey and some bottle beer; that the beer was on the inside of the fejice, in a gunny sack. His co-defendant gaye Mm some beer, and told him to take a bottle or two along with Mm; that thereupon the sheriff came up and arrested Mm. On cross-examination, he stated that he had been convicted of arson in the third degree for burning Peter Snyder’s house; that this was the third time he was arrested for anything at all, except that he was convicted of disturbing the peace of a woman once. The State, in rebuttal, offered evidence tending to show the defendants’ general reputation for truth and veracity was not good.

There was ample evidence to sustain the verdict of the jury. Notwithstanding this, we find upon examination of the verdict and the sentence of the court that the jury did not assess the punishment of the two defendants separately, as required by section 2647, Revised Statutes 1899. The verdict is in these words:

“We the jury in the case of State of Missouri v. William Person and William Border find the defendants William Person and William Border guilty of burglary in the second degree as they are charged in the information, and we fix their punishment for the same at imprisonment in the penitentiary for the term of five years. And we find said defendants not guilty of larceny in connection with said burglary.
“0. E. Barton, foreman.”.

That this verdict is a good verdict of guilty we tMnk there can be no doubt, while it might have been •improved by inserting the word “each,” so that the verdict would read: “We find the defendants William Person and William Border each guilty of burglary in the second degree.” We think it sufficient in that respect; but when the jury came to assess the punishment, clearly they did not assess the punishment of each separately as the statute plainly requires.

In State v. Gordon, 153 Mo. 576, the verdict was in these words: “We», the jury in the above entitled cause, find each of the defendants guilty of robbery in the first degree, as charged in the indictment, and assess the punishment at imprisonment in the penitentiary for five years.’’ This court said: “Section 4228, Revised Statutes 1889 (Sec. 2647, R. S. 1899), requires that when there are several defendants jointly tried, the punishment of each in case of conviction must be assessed separately. This was not done in the case at bar. The court, therefore, should either have refused to receive the verdict and suggested its being put in proper form, or failing in this, should itself have assessed and declared the punishment (R. S. 1889, see. 4230; R. S. 1899, sec. 2649), which the jury in this case, by their defective verdict, failed to do. For this cause alone the judgment must be reversed and the cause remanded,- with directions to the trial court to bring the defendant before it, and having done so, to proceed to assess and declare his punishment, and otherwise proceed in the cause as required by law. And it is ordered that the defendant recover only the cost of this appeal.” It is obvious that these two verdicts are identical in principle,

In State v. Thornhill, 174 Mo. 364, the jury found two defendants guilty of grand larceny, and assessed “their punishment at two years in the penitentiary,” in one verdict. The trial court sentenced each of them separately to the penitentiary for two years, the lowest punishment that could be assessed against one found guilty of that crime. After quoting the language of the court in State v. Gordon, 153 Mo. 576, this court said: “This ruling then and now comniends itself for the reason that as no error had occurred up to the point of assessing the punishment, no rule of right or policy demanded that the whole case should be retried when the statute furnished its own corrective for such an irregularity.” Accordingly it was held that the court in its judgment corrected the error in the verdict.

But in this .case the learned circuit court did not sentence each defendant separately as was done in the Thornhill case. Accordingly, it must- be held that the verdict itself was erroneous as to the assignment of the punishment, and that the judgment and sentence was likewise erroneous in not separately sentencing each defendant. As the verdict is a part of the record proper, and this court is bound to take notice of this error upon this appeal, the judgment must be reversed and the cause remanded, with directions -to the circuit court to cause the defendant Person to be brought before it and proceed and declare his punishment upon the verdict of guilty, and sentence him separately, and the marshal of this court is directed to receive the said William P'erson from the warden of the State Penitentiary and safely convey and deliver him to the sheriff; of Iron county to abide the action of the circuit court as above directed. Inasmuch as it appears from the record of this court at this term of the court that the said William Border is confined in the penitentiary upon a previous conviction for arson in the third degree, he will remain in the penitentiary to serve out the sentence in that cause before being taken before the circuit court to receive his sentence in this cause; and it is ordered that the defendants recover only the costs of this appeal.

The foregoing opinion,, written by Gantt, J., but handed down by him before his retirement from the Supreme Bench, is now adopted as the opinion of the court.


author: BROWN, J.

text:
    THE STATE v. FRANK SWAN, Appellant.
    Division Two,
    April 11, 1911.
    1. APPELLATE JURISDICTION: Constitutional Question: No Exception. Where the only attempt to assail the constitutionality of the statute under which appellant was tried and convicted of a misdemeanor, was in his motion in arrest of judgment, and no exception was saved to the overruling of said motion, and where the record proper reveals the fact that no hill of exceptions was filed within the time granted by the court, the Supreme Court has no jurisdiction of the appeal, and cannot consider the validity of the statute, although the case has been transferred to it by the Court of Appeals on the ground that a constitutional question is involved. Under the circumstances, the constitutionality of the statute has not been preserved for review, and the Supreme Court having jurisdiction on no other grounds, the case must be transferred back to the Court of Appeals.
    2. -: -: -: Court of Criminal Correction. The judge of the St. Louis Court of Criminal Correction must possess the same qualifications as a judge of a circuit court, and appeals from that court are governed by the general law concerning appeals in criminal cases; and though that court possesses jurisdiction of misdemeanors only and does not transact its business with the same precision as courts of general jurisdiction, the Supreme Court does not acquire jurisdiction over an appeal from a trial and conviction of a misdemeanor, on the ground that the statute authorizing the conviction is unconstitutional, if its constitutionality is assailed for the first time in the motion in arrest and no exception is saved to the overruling of that motion, and no bill of exceptions is timely filed.
    Appeal from St. Louis Court of Criminal Correction.— Eon. Wilson A. Taylor, Judge.
    Transferred to St. Louis Court of Appeals.

      Elliott W. Major, Attorney-General, and Charles C. Bevelle, Assistant Attorney-General, for the State.
    Upon appellant’s suggestion, this cause was inadvertently transferred to this court by the St. Louis Court of Appeals. The áppeal was, in the first instance, taken to the .St. Louis Court of Appeals, where appellant appeared and suggested that the appeal involved the determination of a constitutional question, whereupon, and for that alleged reason, the cause was transferred to this court. Upon information of the assistant prosecuting attorney of the St. Louis Court of Criminal Correction, the appellant was tried and convicted on the charge of vagrancy, which' is a misdemeanor. It is manifest that this court has no jurisdiction • unless a constitutional question was properly raised and preserved in the record. The record ■ discloses that neither the information nor the statute upon which it,is based, was challenged by motion to quash, demurrer, or other means, until after trial. At no stage was a constitutional question raised, either by objection to evidence or instructions. No such question was mentioned, even in the motion for new trial. The sole manner by which appellant attempted to raise a ¡constitutional question was by motion in arrest of judgment. The case was then nearing final action, and defendant had quietly sat by during the progress of the entire trial, disregarding numerous opportunities to invoke constitutional provisions. His knowledge and information touching any alleged invalidity of the statute, was as complete at the time he was '’arraigned and tried and filed his- motion for new trial, as when he filed his motion in arrest of judgment, since nothing had occurred during the trial to develop such a question. The constitutional guaranty must be invoked and must have been denied in the trial court in order to give this court appellate jurisdiction. It is clear from the following decisions that no such question was invoked, or is involved, in this case. State v. Gamma, 215 Mo. 103; State v. Boehler, 220 Mo. 5; State v. Grant, 194 Mo. 366; Hartzler v. Railroad, 218 Mo. 565. Overlooking, however, the untimeliness of his action, we find that he did not follow up the objection made in his motion in arrest, as he failed to except to the action of the court in overruling that motion. State v. Boehler, 220 Mo. 6-; State v. Penland, 199 Mo. 154; State v. Miller, 189 Mo. 675. Conclusively barring him from the decision of this court on a misdemeanor, was his failure to file his bill of exceptions within.the time prescribed by the court. Since there is no bill of exceptions,.the case should, for this additional reason, be transferred to the St. Louis Court of Appeals. State v. Fleming, 221 Mo. 451; State v; Finley, 193 Mo. 210'; City v. Clark, 186 Mo. 292; State v. Reed, 154 Mo. 126.

      Henry M. Walsh and Edward J. O’Brien for appellant. .
    The attorney who now appears of record for the appellant first entered appearance for the appellant in the trial court in filing the motion in arrest. At this time, if at no other, the attention of the trial court was fully and definitely called to the unconstitutionality of the act under which the defendant then stood charged. There can be no question but that the cause was within the jurisdiction of the trial court when the -motion in arrest was filed. Had the defendant been without counsel, as is frequently the case' in this court, the question of the constitutionality of the act would not even have been raised in a motion in arrest, for it - could hardly be expected that a defendant would know in precisely what manner to prevent the enforcement • of a law, in itself unconstitutional, if the only court having power to determine the question can be reached on appeal in a misdemeanor case, by raising questions in' a court usually presided over by a layman, and not a court of record. Of course, it might be said that this distinction does not apply to the city of St. Louis. Our 'St. Louis Court of Criminal Correction is, however, ■ only a court confined to the city of St. Louis, with justice of the peace jurisdiction in criminal matters. Necessarily all matters are summary, and many of the things which might properly he done in a court with a less cumbered docket are overlooked, either by the defendant himself or by the clerks and those in charge of the various matters connected with the court. It is only within the last two years that a stenographer has been added to the court equipment. It has been appellant’s contention that the motion in arrest in this case calls the attention of this court to a matter which appears upon the face of the record. The question of the constitutionality of Sec. 2228, R. S. 1899, must go to the jurisdiction of the court. If the section is unconstitutional, then the court cannot have jurisdiction to try the cause, because the same constitution which gives the trial court its authority to try and sentence also prohibits the division into .classes or the infliction of a more severe punishment on one individual than upon another for a like offense. In State v. Miller, 189 Mo. 674, it was held that, although the defect in the verdict -was not preserved in a motion in arrest, yet when the defect did appear in the review of the case, when an appeal had been allowed to this court, the defective verdict would- be ground for reversal. State v. Gamma, 215 Mo. 104; State ex rel. v. Hoyt, 123 Mo. 357; Childs v. Railroad, supra; State ex rel. v. Scott, supra; Sweet v. Maupin, 65 Mo. 65; Weil v. Crane, Co., 69 Mo. 286; Mclntire v. Mclntire, 80 Mo. 470; Bland v. Windsor, 187 Mo. 132; Davis v. Railroad, 126 Mo. 75; Hendrix v. Hendrix, 103 Mo. App. 44; State v. Wade, 147 Mo. 75; Schafstetter v. Railroad, 175 Mo. 147. The contention of the appellant is, therefore, that this cause is one in which the statute on its face is unconstitutional and void, that this matter was called to the attention of the trial court before final judgment; that it was called to the attention of the St. Louis Court of Appeals as soon as it was possible; that the question has never been settled by this court, and that no other court in this State has the authority to pass on the question of the validity of the law. If the law is invalid, necessarily no judgment could be maintained on an information drawn under it. The invalidity of the law must of necessity appear on the face ‘of the record in the information. "We respectfully suggest that under the unbroken line of decisions in this State, both -in this court and in the St. Louis Court of Appeals, this matter is properly before this court for adjudication, and that the motion to transfer to the St. Louis Court of Appeals should be denied.
   BROWN, J.

— Defendant was convicted of vagrancy in the St. Louis Court of Criminal Correction, under section 4789, Revised Statutes 1909, and from a judgment fixing his punishment at seven months’ imprisonment in the city workhouse, he appealed to the St. Louis Court of Appeals. Said Court of Appeals transferred the case to this 'court on the ground that the appeal involved the constitutionality of section 4789, supra.

At the April term, 1910; of this court, the Attorney-General filed a motion to remand the cause to the St. Louis Court of Appeals, for the alleged reason that defendant was convicted of a misdemeanor, and therefore this court had no jurisdiction of the case. Through some inadvertence, this motion has not heretofore received our consideration.

Upon inspection of the record, we find that the only attempt to assail the .constitutionality of the law under which defendant was convicted is found in defendant’s motion in arrest of judgment; and defendant failed to except to the order of the court overruling his said motion. The record proper discloses the further fact that the bill of exceptions was filed after the time granted by the court for filing same had expired. This unfortunate condition of the record prevents us from considering the constitutional questions which defendant intended to raise, and precludes us from hearing and determining the appeal. [State v. Cook, 217 Mo. 326; State ex rel. v. Hitchcock, 86 Mo. 231; State v. Boehler, 220 Mo. l. c. 5; Graham v. Deguire, 154 Mo. 88; State v. Elschinger, 223 Mo. 53.]

Appellant’s learned counsel while admitting the foregoing imperfections in the record, earnestly con-’ tends that as the St. Louis Court of Criminal Correction only possesses jurisdiction of misdemeanors and does not transact its business with the same dignity and precision as courts of general jurisdiction, we should disregard the defects in his appeal and proceed to hear and determine the constitutional questions which he attempted to raise. In this suggestion we cannot concur. The law creating this court of criminal correction requires the judge thereof to possess the same qualifications as a judge of the circuit court. [R. S. 1899, sec. 2542.] Appeals from that court are governed by the general law of procedure in criminal cases. [R. S. 1899, sec. 2546.]

The appellate jurisdiction of the Supreme Court, so far as criminal cases are concerned, consists in reviewing and correcting errors of the trial courts; and when such trial courts adjudge an unconstitutional law to be a valid enactment, an exception must be saved to their action; otherwise, we are powerless to correct their mistakes. It is, therefore, ordered that this cause he remanded to the St. Louis Court of Appeals, which is vested with full jurisdiction to examine the record proper and grant the appellant relief against the errors, if any, which exist therein.

Kenvásh, P. J., and Ferriss, J., concur.


text:
    THE STATE v. GEORGE TEVIS, Appellant.
    Division Two,
    April 11, 1911.
    1. BILL OF EXCEPTIONS: Timely Filing: Change of Court Term. Where appellant was given until the second day of the next April term of court to file his bill of exceptions, and in the meantime the Legislature changed the date for holding the term from April to May, so that there was no April term, a bill of exceptions filed on the second day of the May term was filed in time.
    2. 1NFOP.IVIATION: Rape: Incest: ‘Conviction. A charge of rape and incest may be joined in separate counts where they both relate to the same -transaction. Incest is a lower crime than rape; and though the evidence may show that, if defendant committed either crime it was rape, a conviction of incest may stand, since the State may prosecute for any crime that may be carved out of the unlawful act.
    3. Instruction: Refusing Defendant’s. Where defendant is being prosecuted for incest, and the court of its own motion has instructed the jury that his prior conviction of petit larceny can only be considered as affecting his credibility as a witness and should not be considered any evidence of his guilt of the offense for which he is being tried, it is not error to refuse an instruction asked by him defining the effect to be given to the evidence of his former conviction of petit larceny.
    4. JUROR: Opposed to Capital Punishment: Conviction of Incest. Where defendant was convicted of incest, the court did not err in excusing jurors opposed to capital punishment, although the information in one count charged rape, a conviction of which might authorize capital punishment.
    5. INCEST: Insufficient Evidence: Uncorroborated Prosecutrix. A conviction for either rape or incest may rest upon the uncorroborated testimony of the prosecutrix; but when her testimony is of a contradictory nature, or when applied to the admitted facts of the case is not convincing, but leaves the mind of the court clouded with doubts, she must be corroborated, or a judgment of conviction cannot stand.
    6. -: -: Concealment: Fear of Defendant. Where the prosecutrix, aged sixteen at the time of the last act of alleged incest, testified that the incestuous conduct of her father extended over a period of more than five years; that she protested against the commission of the offense and refrained from informing her mother only because of threats and through fears of her father; and that she did not inform her mother of the last act for thirteen months thereafter, evidence showing that she was a disobedient child, and that nine months later she forged her father’s name to an order for a railroad pass, whereby she obtained transportation, and went to another county, where she remained twelve days without his consent, and then returned home, renders nugatory that part of her testimony to the effect that she acted through fear of her father in concealing from her mother the alleged crime.
    Appeal from Henry Circuit Court. — Hon. G. A. Benton, Judge.
    EeVERSED AND REMANDED'.

      John Gilbreath and Barnett $ Barnett for appellant.
    (1) Tb.e court erred in giving to the jury the instruction on behalf of the State, authorizing the conviction of the crime of incest. There was absolutely no evidence to support this conviction. The only evidence tending to prove any crime was that of the prosecutrix, and her testimony was positive that her father committed the crime of rape upon her — that she never consented to the act, hut that defendant forcibly pushed her hack and forcibly held her and ravished her, and threatened to MU her if she told any one; that she ’ resisted; that there was a struggle and that she cried. This is the only evidence of any crime, and this establishes the crime of rape. A party can not be convicted of incest where the evidence proves the commission of a rape. State v. Ellis, 74 Mo. 385; People v. Harriden, 1 Parker’s Or. Cas. 344; Crogan v. State, 22 Wis. 444; DeGroat v. People, 39 Mich. 124; State v. Thomas, 53 Iowa 214; (a) The State v. Harney, 168 Mo. 167, is not in point because the construction of 2172, being the section providing for the punishment of incest, was not under consideration in that case. The indictment there was under section 1838, which provides that “carnal knowledge of a female of previous chaste character, between the ages of 14 and 18, shall constitute a felony.” This indictment was not drawn under this section, but under section 2172, and charged incest — the first count charging rape — neither would the evidence here support a charge under section 1838. But here the defendant was not under the .evidence guilty of incest. The prosecutrix’s evidence shows that it was rape or nothing. The jury in finding that defendant was not guilty of rape, found that the prosecutrix in so testifying did not testify to the truth. They therefore convicted the defendant on the evidence of a witness which they did not believe. She was uncorroborated. (2) But the jury were not justifiable in finding defendant guilty of any crime under the law. The evidence of the prosecutrix was wholly uncorroborated and was so unsatisfactory that it would be dangerous to permit the conviction to stand. The testimony shows that she said they wanted to convict her father so that her mother could marry a rich man and they would not have to work. The arrest was not made for over a year after the alleged crime was committed. No explanation was given for this delay except that she was afraid of her father, yet she admitted that she was disobedient to her father; that she took money that he gave her to get groceries and used it for other purposes; that she forged her father’s name after this in order to get a pass on the railroad; that' she traveled around a great deal against her father’s consent. She testified that the crime was committed by means of force and violence against her will, yet she never made any outcry, never complained to her mother nor her big brother, also that on the very morning of the alleged offense she talked to her mother in the ordinary and usual.way and there was nothing to indicate that an offense had been committed. The jury found that her testimony was not true, that the offense was not committed with force as she testified. On what theory conld the jury find the defendant guilty when they discredit the only witness who testified as to the offense? She testifies that she never would have had her father arrested except that her mother told her to. She was acting under the. influence of her mother, who, it seems, had fallen out with her husband and did not want to live with him, hut had determined to get rid of him.

      Elliott W. Majorj Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
    (1) Appellant’s first assignment of error is the giving of instruction 7 on the part of the State, authorizing the conviction of appellant of the crime of incest, as charged in the second count of the information. It is not disputed, but that Bessie Tevis is the daughter of appellant, and was between the age of fifteen and sixteen years at the date of the alleged crime in the month of March, 1907. While the prosecutrix testified that her father had intercourse with her by reason of threats and without her consent, yet the questions were left for the jury to determine from all the facts and circumstances in. evidence, first, whether the crime was committed, and, second, whether it was accomplished by force. The proof shows that said prosecutrix was sleeping with a nine-year-old sister on the morning that her mother went to the depot, and that she did not wake her sister in resisting her father in the commission of the crime' alleged; that she did not get up until near six o’clock, and that she did not tell her mother, on her return from the depot, and did not tell her for months after this time. It was a question for the jury to determine whether the crime, as alleged, was committed by force, and constituted the crime of rape, or whether it was committed without the element of force, and defendant was guilty only of the crime of incest, or whether defendant committed the crime at all. Under the information and proof defendant might be gnilty of either rape or incest, or not guilty of either. Raiford v. State, 68 Ga. 674. (2) The crime of incest, as charged, was not merged into the crime of rape, as charged in the second count, and .the doctrine of merger, as announced in the case of State v. Ellis, 74 Mo. 385, and its whole brood, is repudiated and directly overruled in the case of State v. Harney, 168' Mo. 201, and State v. Smith, 190' Mo. 719. (3) Appellant cannot now he heard to complain that he was not convicted of a higher crime than incest, even if the evidence showed him guilty of the crime of rape. State v. Smith, 190 Mo. 720; State v. Harney, 16'8' Mo. 167; Bishop’s Grim. Law (7 Ed.), sec. 786'. (4) Counsel for appellant seem to assume that the jury had to believe in toto the testimony of the prosecutrix, or reject in toto her testimony. The jury were at liberty to believe any or all of her testimony, or disbelieve all of her testimony, the same as any other witness in the case. Prom all the facts and circumstances in the case, the jury were at liberty to find that the crime of incest was committed without the element of force. The prosecutrix was fully corroborated by Doctors Gibbons and Hare. The law is well settled that a person charged with the crime of rape by proper averments in the indictment or information, may be convicted of the crime of incest where the proof shows the relation as named in the statute; and that to constitute the crime of incest it does not require the consent of both parties. 1 Bishop’s New Grim. Law, sec. 795; 2 Wharton’s Grim. Law (10 Ed.), sec. 1751; State v. Chambers, 53 N. W. 1090; State v. Barnes, 2 Idaho 161; State v. Donovan, 61 la. 278; Commonwealth v. Goodhue, 43 Mass. 193;' Commonwealth v. Bakeman, 131 Mass. 177. (5) The prosecutrix was fully corroborated by the two physicians who made the examination of her, and testified in this case. The court and jury saw and heard the testimony of the prosecuting witness and of the defendant, as well as of all other witnesses in the ease, and found defendant guilty of the crime as charged in the second count of the information — that of incest.
   BROWN, J.

— Defendant was convicted of incest in the circuit court of Henry county. From a judgment fixing his punishment at three years in the penitentiary, he appeals.

The information in this ease contains two counts; in the first, defendant is charged with committing rape upon his daughter, Bessie Tevis; and in the second, with incest, by having sexual intercourse with her.

The State’s evidence tends to prove that defendant is a section foreman on a railroad, and at the time he is charged with committing this crime, resided with his family, consisting of his wife, his son aged eighteen, a daughter aged sixteen (the prosecutrix), another daughter aged ten, and an infant, in the town of Windsor, in Henry county. That about four o’clock one morning in March, 1907, defendant’s wife having gone to the depot to bid a friend good bye, defendant went to the bed where his daughters were sleeping, and by threats, compelled prosecutrix to have sexual intercourse with him. She (the prosecutrix) testified that defendant had been forcing her to have sexual intercourse with him during a period of several years, whenever her mother happened to be away from home at night. The defendant having threatened her life if she informed anyone of his misconduct, she did not tell anyone of his crime until April, 1908, when she confided the matter to her mother.

Within a week or ten days after the prosecutrix informed her mother, they caused the defendant’s arrest: The mother was not sworn, but the prosecutrix testified quite fully concerning the alleged crime, and to the facts surrounding it.

On cross-examination she admitted that her father allowed her to associate with other yonng people; to mate trips to near-by towns, that she frequently disobeyed him, and that in December, 1907, she forged her father’s name to an order for a railroad pass; and having thus procured transportation, went to the town of Ray, near Kansas City, and remained twelve days; that in January, 1908’, she made another trip* to Kansas City, and visited friends several days. This last trip was made with her father’s consent and in company with her mother. That in April, 1908-, defendant gave her ten dollars to go to a store a mile or so away and purchase groceries for the family, and that she and her mother used this money to go to the county seat and prefer this charge. After defendant’s arrest, two physicians examined the prosecutrix and found her sexual organ enlarged, but did not express any opinion as to the probable cause of 'that .condition.

The conviction in this case rests entirely upon the evidence of prosecutrix. The jury returned a verdict of not guilty of the charge of rape, but found defendant guilty of incest. Such additional points in the evidence as are necessary to a full understanding of our opinion will be given in connection with our rulings on the issues tendered.

The defendant assigns the following alleged errors : The evidence showed that if any crime was committed it was rape; and that the conviction for incest cannot stand; that the court erred in refusing an instruction limiting the effect of the evidence that the defendant had been convicted for petit larceny; that the court erred in excusing jurors because they were opposed to capital punishment; and that upon the whole case the court should have directed an acquittal.

OPINION.

The Attorney-General contends that there is nothing bnt the record proper before us — that the bill of exceptions was not filed in time. Defendant was convicted at the January term, 1909, of the Henry Circuit Court, and was granted until the second day of the next April term to file his bill of exceptions. In the mean time the Legislature changed the date of holding the spring term of said court from April to May; so that there was no April term held; and the bill of exceptions was filed on the second day of the May term, 1909. We rule that the bill was filed in time to bring the exceptions therein contained properly before this co art for review.

We must overrule defendant’s first assignment. Incest is a lower crime than rape. When the same completed act constitutes a violation of more than one law, the State may prosecute for any crime which can be carved out of such unlawful act. [Wharton’s Criminal Law (10 Ed.) , sec. 27; State v. Smith, 190 Mo. l. c. 720.] There is no impropriety about joining the charge of rape and incest where they both relate to the same transaction. [State v. Goodale, 210 Mo. 275.]

The court did not err in refusing defendant’s instruction defining the effect to be given to evidence of defendant’s conviction of petit larceny, because by an-instruction given of its own motion the court had properly informed the jury that defendant’s prior convic.tion could only be considered as affecting his credibility as a witness, and should not be deemed any evidence of his guilt of' the crime for which he was then on trial.

There was likewise no error on the part of the court in excusing jurors who were opposed to capital punishment, because one count of' the indictment charged the offense of rape, a conviction upon which might authorize the infliction of capital punishment.-

'We have read and re-read the record in this case with much care, and while it is with great reluctance that we find it necessary to overturn the verdict of the jury that heard the evidence and had an opportunity to observe the conduct of the witnesses on' the stand, this is one of those rare cases in which it becomes our duty to do so.

A conviction in cases of either incest or rape may be had upon the uncorroborated evidence of the prosecutrix, but when the evidence of such prosecutrix is of a contradictory nature, or when applied to the admitted facts in the case, her testimony is not convincing, but leaves the mind of the court clouded with doubts, she must be corroborated, or the judgment .cannot be sustained. [State v. Goodale, 210 Mo. 275, l. c. 290; State v. Brown, 209 Mo. 413.]

In this case the prosecutrix testifies that the incestuous conduct of her. father was continued over a period of more than five years; that she protested against the commission of this abominable and unnatural crime and only refrained from informing her mother through fear of her father; but her own admissions on cross-examination are that she disobeyed her father at pleasure; and there is not one word in the record that he ever chastised her or gave her cause to be afraid of him. Yet she waited thirteen months after the last act of sexual intercourse is alleged to have been committed before informing' her mother. It is very improbable that the defendant could continue to commit incest with his daughter for more than five years and the mother have no knowledge thereof. Such things are possible, but in a high degree improbable. The fact that prosecutrix was a disobedient child and that she forged.her father’s name to an order for a railroad pass whereby she obtained transportation and went to Jackson county, where she remained twelve days without his consent, renders nugatory that part of her testimony wherein- she says she acted through fear in concealing from her mother the alleged crime of her father.

The son Harry, eighteen years old, seems to have been emancipated by his father. At least he had'left the parental roof a few weeks before April, 1908, and was out in the State of Washington when his father was arrested. This son immediately returned home and after talking with the prosecutrix and making some investigations regarding the alleged crime, took up the fight for his father. He testified that his sister was disobedient, but that he had never seen any indication of improper relations between her and the defendant. We can see no reason why he should espouse the cause of his father if he found any grounds for believing that his sister had been wronged. He was under no restraint of any kind, and in a good position to correctly guage the veracity of prosecutrix. His evidence is entitled to much weight.

The defendant went upon the stand and denied the evidence of the prosecutrix in detail. The prosecuting attorney did not attempt to cross-examine him, except to elicit the fact that he had pleaded guilty to petit larceny in the theft of a barrel of linseed oil some seven years before — a peculiar theft for a man working on a section with no facilities for concealing or disposing of such property. The defendant having testified in.his own behalf, the prosecution tried to impeach his reputation, but no witness was produced who could testify that his reputation for morality was bad, or who had ever heard of him committing an immoral act except the one for which he was then on trial. The overwhelming preponderance of the evidence is that defendant is a truthful man. Even the constable who lived just across the street from defendant at the time of the alleged crime, and who appears to have been unfriendly to the defendant, admitted on cross-examination that he had never heard anyone question defendant’s veracity. A witness who boarded at defendant’s bouse testified tbat be saw no evidence of improper relations .between defendant and prosecutrix. Some of bis nearest neighbors gave like testimony. Defendant’s ten-year-old daughter was not sworn as a witness. Mrs. Reiser, a restaurant-keeper ■ in a near-by town, testified tbat after defendant’s arrest, sbe asked the prosecutrix why she bad her father locked up, and received the reply tbat sbe bad told her troubles to a Holiness preacher at Kansas City, who advised her tbat unless sbe bad her father arrested sbe could never go to Heaven. Tbat prosecutrix also said tbat after they got rid of her father her mother could marry a richer man and they would not have to work.

. After a careful survey of the whole case, we find that the evidence is not sufficient to sustain the conviction, and we therefore reverse the judgment and remand the cause. If upon a retrial the evidence of guilt is not stronger than at the first trial, the circuit court should direct an acquittal.

Kennish, P. Jv and Ferriss, J., concur.


author: FERRISS, J.

text:
    GERTRUDE MEYERS et al. v. J J. WATSON et al., Appellants.
    Division Two,
    April 11, 1911.
    1. WILL: Unnamed Grandchildren: Small Provision for Son-in-Law. A gift of “ten dollars to James Cary, my son-in-law,” whose wife, a daughter of the testator, was dead at the time the will was executed, was not a remembrance by testator of said daughter’s children, and was no provision for them; and neither she nor her children being otherwise mentioned in the will, which undertook to dispose of all of testator’s property, the children, as pretermitted heirs of the testator, can maintain suit for such a share in the estate as their mother would have received had he died intestate.
    2. -: -: - — : No Fair Proportion. A gift of ten dollars to a son-in-law, where his children’s share would have amounted to $600 had there been no will, is a mere naming of the son-in-law, and not a naming of the grandchildren. That is not a bequest of such a fair proportion oí the estate as can he held to have been intended as a provision for the grandchildren.
    Appeal from Mississippi Circuit Court. — Hon. H. G. Riley, Judge.
    Afeikmed.

      Russell & Beal for appellants.
    A bequest to a son-in-law, though he is not designated as such, is a naming of the daughter, within section 2611, of the act concerning wills. Hockensmith v. Slusher, 26 Mo. 237 ;■ Wood v. Drake, 135' Mo. 393. In the case at bar the testator referred to the father of the plaintiffs as his son-in-law, which clearly shows that he did not forget the children of his deceased daughter. Such a bequest as was made in the case at bar according to the doctrine of the cases cited, would be a naming of the daughter had she been living and is certainly a naming of her children. The naming of a deceased daughter raises the presumption that the children were in the mind of the testator and intentionally omitted. Guitar v. Gordon, 17 Mo. 408. The will clearly shows that the testator did not forget any of his children, or their descendants. He treated his son and his son-in-law alike.

      Boone <& Bee for respondents.
    The omission of the names of children or grandchildren is intestacy as to them. R. S. 1899, sec. 4611; Bradley v. Bradley, 24 Mo. 312. There is no mention made of the respondents, nor of their mother, who whs dead; no provision was made for them, nor was any substantial bequest made to any person who might represent them. True, their father was mentioned by name, and ten dollars given to him, but no case in the reports of this State, has gone so far as to say that the mere mention of the son-in-law would raise the inference that the testator had in mind the children of a deceased daughter. Fugate v. Allen, 119 Mo. App. 183.
   FERRISS, J.

— -Action in ejectment for a half interest in a lot of land; six hundred dollars in value.

The plaintiffs are the children of Mary E. Oary, deceased, daughter of Joseph B. Askew, who in his lifetime owned said lot. There are four - plaintiffs, three of them being minors. The said Joseph B. Askew, by his last will, disposed of his estate, including said lot, as follows:

“In the Name of God. Amen. I, Joseph B. Askew, of the town of Bird’s Point, in the county of Mississippi, State of Missouri, being of sound mind and memory, and considering the uncertainty of this frail and transitory life, do therefore make, ordain, publish and declare this to be my last will and testament; that is to say, first, after all my lawful debts are paid and discharged, the residue of my estate, real and personal, I give, bequeath and dispose of as follows, to-wit: To my son Robert, ten and no-100th dollars. The balance, real and person, to my beloved wife, Mary 0., during the term of her natural life, and after her death, I will all the property to my grandson, Joseph J. Askew, son of Robert Askew;
“Likewise, I make, constitute and appoint my said wife, Mary 0., to be executrix of this, my will and testament, hereby revoking all former wills by me made.
“In witness -whereof, I have hereunto subscribed my name and affixed my seal, this 4th day of November, 1898.”
“J. B. Askew (Seal.)”

The James Oary mentioned in the will is the father of the plaintiffs and husband of the said Mary E., who died before her father executed the will. The will was probated in July, 1900'. The widow, Mary C., died in 1902, In May, 1904, Joseph J. Askew, the grandson mentioned in the will, deeded the lot in controversy to the defendant.

The plaintiffs claim as pretermitted heirs of Joseph B. Askew, their grandfather. Judgment below was rendered for the plaintiffs, awarding them a one-half interest in said lot. Defendants bring the case here by appeal, and urge that the provision in the will, giving ten dollars to James Cary, the son-in-law, was a sufficient naming of the plaintiffs, his children, within the meaning of section 544, Revised Statutes 1909, which reads as follows: “If any person make his last will, and die, leaving a child or children, or descendants of such child or children in case of their death, not named or provided for in such will, although bom after the making of such will, or the death of the testator, every such testator, so far as shall regard any such child or children, or their descendants, not provided for, shall be deemed to die intestate; and such* child or children, or their descendants, shall be entitled to such proportion of the estate of the testator, real and personal, as if he had died intestate and the same shall be assigned to them, and all the other heirs, devisees and legatees shall refund their proportional part.”

We affirm the judgment of the court below. The plaintiffs are neither named, nor provided for in the will. Respondents rely upon the case of Hockensmith v. Slusher, 26 Mo. 237, wherein it was held that a be- . quest of one thousand dollars to a son-in-law, was a sufficient provision for his wife,' the daughter of the testator. But in that case the provision was a substantial one. The court said: “In the absence of anything appearing to the contrary, it must be supposed that the legacy to Mr. Hockensmith was prompted by the fact that he was the testator’s son-in-law, and that the daughter was the moving cause; and if the bequest was bestowed on her account, she must have been in the mind of the testator at the time he made his will.”

This is far from holding that the mere naming of a son-in-law — and that is all that a bequest of ten dollars amounts to — is a naming of the children of his deceased wife. The failure to name these children of the testator’s deceased daughter raises the presumption that they were unintentionally omitted. This presumption may be rebutted by anything appearing on the face of the will which shows that they were not forgotten. [Thomas v. Black, 113 Mo. l. c. 69; Pounds v. Dale, 48 Mo. 270 ; Bradley v. Bradley, 24 Mo. 311.]

Had the testator given to the son-in-law a fair proportion of the estate, it might be held that this provision was intended for the grandchildren, and that, consequently, they were in the testator’s mind, and this because it would not be likely that the testator intended to benefit the son-in-law alone. It was upon this principle that the court, in Guitar v. Gordon, 17 Mo. 408, held that a substantial bequest to a daughter, deceased at the time the will was made, was a sufficient naming of her children.

In the case of Woods v. Drake, 135 Mo. 393, cited by appellants, it was held that the naming specifically .of the four' children of the testator’s daughter rebutted the presumption, that she was forgotten, although not herself named.

In Bradley v. Bradley, supra, a bequest to the wife of testator of his entire estate was held to be within the statute, and was not a provision for, nor a naming of, his children by such wife. If the gift of the entire estate by the testator to his wife is not a provision for their children, much less is the gift to a son-in-law of a nominal sum a provision for the children of such son-in-law.

The plaintiffs were not mentioned in the will. We find nothing in the instrument to rebut the presumption that they were unintentionally omitted. The judgment is, accordingly, affirmed.

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


author: BROWN', J.

text:
    CHARLES E. GRAY and MARGARET GRAY TILLERY v. A. W. WARD, Appellant.
    Division Two,
    April 11, 1911.
    1. NONSUIT: Voluntary: Right to Take. Where the court has indicated its intention of giving an instruction in the nature of a demurrer to plaintiff’s case, plaintiff may take a nonsuit before such instruction is actually given, and such nonsuit is voluntary.
    2. -: -: -: In Suit to Quiet Title. Suits to quiet title are governed by the Code of Civil Procedure, which permits a plaintiff to dismiss his suit or take a voluntary nonsuit at any time before the same is finally submitted, except where defendant has filed a set-off or counterclaim, and a suit to quiet title is neither. Defendant cannot prevent the plaintiff from dismissing, on the ground that, having been involuntarily brought into court, he has the right to compel plaintiff to remain in court in order that the title may be completely ascertained and determined.
    S. LIMITATIONS: Cotenants. Adverse possession, under a deed from some of the cotenants, for twenty-eight years, bars a recovery by another cotenant who has been of age eight years.
    4. CONVEYANCE: To A and Her Heirs by B: Cotenancy: Life Estate. A deed “to Sallie Gray and her heirs by James P. Gray” did not create a tenancy in common in Sallie Gray and her six children, but- conveyed a life estate to Sallie Gray, and a remainder in fee to her children (then living and thereafter born) begotten by James P. The meaning is the same ■ as if the words had been “to Sallie Gray and the heirs of her body by James P. Gray.”
    5. -: -: Quieting Title: To Establish Remainder. The deed having created a life estate in the wife and a remainder in fee in her children, and the wife and five of the children having conveyed their interest in the land to defendant, the remaining child, eight years after he came of age, and while his mother was still living, could maintain a suit to quiet title, and be adjudged to be the owner of an estate in remainder to an undivided one-sixth interest in the property.
    Appeal from Greene Circuit Court. — Hon. J. T. Neville, Judge.
    Apfirmed.

      Guy D. Kirby, II. D. Burst and W. B. Tatlow for appellant.
    (1) The court erred in permitting the plaintiff Tillery to take a nonsuit after verdict. . The statute itself is conclusive on this question. It heeds no construction, but only to be read, to be comprehended. R. S. 1899; sec. 639. The statute expressly provides for a special finding of facts by the court when requested by either party. The record shows that it was requested and made. R. S. 1899; see. 695. It has been expressly held by this court that such a finding of facts is equivalent to a special verdict. Land Company v. Bretz, 125 Mo. 432. (2) In addition to this, the answer set up new matter demanding affirmative relief. Upon which the defendant was entitled to a judgment against Margaret Gray Tillery establishing the fact that she had no interest in the land in controversy. This prevented the dismissal of the suit by her. Lanyon v. Chesney, 209 Mo. 1. (3) The court clearly erred in construing the deed of Elijah G'ray and wife as conveying a life estate to Sallie Gray and a contingent remainder in her heirs. This court has passed-upon and construed a deed exactly similar to this deed and held that it was not within the statute, but conveyed the land to Sallie Gray and her children by James P. Gray, then living, as tenants in common, which case has never been overruled but repeatedly followed and is the settled law of the State. Fanning v. Doan, 128 Mo. 323; Chew v. Keller, 171 Mo. 224; Miller v. Ensminger, 182 Mo. 207; Franlrlin v. Cunningham, 187 Mo. 195; Riñes v. Mansfield, 96 Mo. 394; Utter v. Sidman, 170 Mo. 284; Hamilton v. Pitcher, 53 Mo. 334.

      Matthew E. Galt and Frank B. Williams for respondent.
    (1) The deed conveyed an estate tail special, which was, by the statute, converted into a life estate in. Sallie Gray, remainder in fee in the said six children, or the survivors of them. Hunter v. Patterson, 142 Mo. 310; Bone v. Tyrrell, 113 Mo. 175; Reed v. Lane, 122 Mo. 31.3; Hall v. French, 165 Mo. 430. (a) The usual form of words for the creation of an estate tail is “To A. B. and the heirs of his body.” Tiffney, R. P., p. 57; Coke, Litt. 20b; 11 Blaekstone’s Com. 115; Franklin v. Cunningham, 187 Mo. 184; Greene v. Sutton, 50 Mo. 186. (b) The words “of his body” are not necessary where there are other words of procreation. Coke, Litt. 20b; Lehndorf v. Oope, 13 N. E. (111.) 505. (c) Section 4592, R. S. 1899, which has been in force in the use of the same word since as early as 1865; where it appears in the General Statutes, does not abolish estates tail, it acts on them and converts them into a life estate in the first taker with remainder in fee simple to the heir in tail. (2) The possession of a life tenant is not adverse to the reversioner or remainderman. Sutton v. Casseleggi, 77 Mo. 397; Thomas v. Black, 113 Mo. 66; Hall v. French, 165 Mo. 633; Smith v. White, 165 Mo. 596; Shumate v. •Snyder, 140 Mo. 77; Rothwell v. Jamison, 147 Mo. 601. And he cannot by his declarations, acts or claim of a greater or different estate, make it adverse so as to enable himself or others claiming under him to invoke the Statute of Limitations. Salmon v. Davis, 29 Mo. 176; Keith v. Keith, 80 Mo. 125'. (3) The case was not finally submitted when plaintiff Margaret Gray Tillery, asked and was granted leave to dismiss, and no error was committed in granting such leave. Houston v. Thompson, 87 Mo. App. 63; In re Estate of Howard, 128 Mo. App. 492.
   BROWN', J.

— This is an ordinary action to quiet and determine the title to eighty acres of land in Greene county, in which each of the plaintiffs by their ■petition claim an undivided one-sixth interest. The defendant is in possession and pleads the ten-year Statute of Limitations, and also' pleads a deed from plaintiff Tillery. From a dismissal as to plaintiff Tillery and a decree below for plaintiff Gray, defendant prosecutes this appeal.

Elijah Gray is the common source of title, and as-the case turns upon the construction of a deed which he and his wife made to his daughter-in-law, Sallie Gray, said deed is here set out in full:

Know all men by these presents, That we, Elijah Gray and Anna Gray' his wife, of the county of Greene, in the State of Missouri, have this day, for and in consideration of the sum of two dollars to the said Elijah Gray and Anna Gray, his wife, in hand paid by Sallie Gray, of the county of Greene in the State of Missouri, granted, bargained and sold, and by- these presents do grant, bargain and sell unto the said Sallie Gray and her heirs by James P. Gray the following tracts or parcels of land situate in the county of Green in the State of Missouri: (Description omitted.)
To have and to hold the premises hereby conveyed with all the rights, privileges and appurtenances thereto belonging or in any wise appertaining unto the said Sallie Gray and her heirs by James P. Gray, her heirs and assigns forever, I, the said Elijah Gray hereby covenanting to and with the said Sallie Gray, her heirs and assigns for herself, her heirs, executors and administrators to warrant and defend the title to the premises hereby conveyed against the claims of every person whatsoever. [Testimonium clause and signatures omitted.]

Tbe plaintiffs are children of tbe Sallie Gray and James P. Gray named in tbe foregoing deed. There were also'five other children born to Sallie and James P. Gray, but one of them died in infancy. The father, James P., died November 15, 1887, but the mother, Sallie Gray, survives.

On July 24, 1884, Sallie Gray, with her husband James P., made a warranty deed to defendant Ward, purporting to convey the whole title to the land in controversy. On March 31, 1888, said Sallie Gray, together with four of her children, Susan, Annie, Lizzie and Fanny, made a quitclaim deed to defendant; and on February 7, 1889, the plaintiff Margaret Gray Tillery, also quitclaimed her interest in the land to defendant.

The plaintiff Charles E. Gray was born March 13, 1879, and attained the age of twenty-one eight years before the institution of this action. Defendant entered into actual possession of the land on July 24, 1884, under the deed from Sallie Gray and husband; and has been in possession ever since. Plaintiff Tillery, while admitting that her signature to the deed of February 3.7, 1889’, is genuine, contends that she received no consideration for said deed, has no recollection of having executed the same, and that her signature was procured by fraudulent representations of defendant. At the conclusion of the evidence, attorneys for defendant requested permission to make an oral argument on the alleged invalidity of the deed by plaintiff Tillery; whereupon the court announced that it would find the issues against her. Plaintiff Tillery, over the objection of defendant, then dismissed the suit as to herself; and defendant saved his exceptions.

The defendant contends that the court committed error in allowing plaintiff Tillery to take a nonsuit; and that error was also committed in adjudging* the plaintiff Charles E. Gray to be the owner of an estate in remainder to an undivided one-sixth of the land in controversy.

OPINION.

I. "We think the court did not err in permitting the plaintiff Tillery to take a voluntary nonsuit as to herself after the court had announced its intention to find the issues against her. 'Where a plaintiff takes a nonsuit after the court has indicated its intention to give an instruction in the nature of a. demurrer to the evidence, hut before such instruction is actually given, the nonsuit is voluntary. [McClure v. Campbell, 148 Mo. 96; Carter v. O’Neill, 102 Mo. App. 391.]

Moreover, it is contended by defendant that in a siut of this character, after he had filed his answer, setting up a claim to the real estate, and asking that his title be quieted, plaintiff Tillery was not entitled to dismiss her suit and thereby deprive him of the right to have his title adjudicated in this action; but this point must also be ruled against defendant. Section 2536, Revised Statutes 1909, provides that suits of this character shall be governed by our Code of Civil Procedure ; and Section 1980, Revised Statutes 1909, being part of said code, permits the plaintiff to dismiss his suit at any time before the same is finally submitted to the jury or to the court sitting as a jury. An execution to this rule is found in section 1878, Revised Statutes 1909, permitting a defendant who has filed a set-off or counterclaim to proceed to judgment on same after plaintiff has dismissed his original cause of action. The answer of defendant in this case cannot properly be denominated a set-off or counterclaim, and therefore the plaintiff Tillery was entitled to take a nonsuit. [Jones v. Moore, 42 Mo. 413; Lanyon v. Chesney, 209 Mo. 1, l. c. 9; Hamlin v. Walker, 228 Mo. 611.]

We are not unmindful of the injustice to defendant which arises from permitting plaintiff Tillery to bring this suit and prosecute it to a point where it became apparent that a judgment would be given against her and then by taking a voluntary nonsuit, reserve the right to bring- another action against defendant, or force him to bring an action against her in order to quiet his title; but the Legislature has failed to provide any remedy for abuses of this kind, and until it does so, we are forced to construe the law as we find it.

II. This brings us to the main feature of the ease. Defendant contends that the deed of Elijah Cray and wife to his daughter-in-law created a tenancy in common in said Sallie Gray and her six children., among whom is the plaintiff Charles E. Gray, and that as defendant has been in possession twenty-eight years and plaintiff Gray has been of full age during eight years of that period, he is barred by the ten-year Statute of Limitations. It is quite clear that said plaintiff would be barred by the ten-year Statute of Limitations if the deed from Elijah Gray created a tenancy in common. [Hinters v. Hinters, 114 Mo. 26 ; Robinson v. Allison, 192 Mo. 366.]

However, we are unable to concur in defendant’s construction of the deed from Elijah Gray and wife to Sallie Gray. The words “to Sallie Gray and her heirs by James P. Gray” occurring in both the granting clause and habendum, have the same meaning as though the deed read “to Sallie Gray and the heirs of her body by James P. Gray,” and manifest a clear intention on the part of grantors to create what was known as an estate tail special, under the common law and statutes of England. [1 Washburn on Real Property (6 Ed.), secs. 199 and 200, and vol. 3, page 534; Tiffany on Real Property, secs. 23 and 25.] The effect of this deed under, the provisions of section 2572, Revised Statutes, 1909, was to vest in said Sallie Gray a life estate only, with -remainder to her children then living and thereafter born to her by her said husband James P. Gray. This doctrine finds support in the following cases: Hall v. French, 165 Mo. 430; Chew v. Kellar, 171 Mo. 215, l. c. 225; Hunter v. Patterson, 142 Mo. 310; Lehndorf v. Cope, 122 Ill. 317.

The defendant calls our attention to the cases of Fanning v. Doan, 128 Mo. 323, and Franklin v. Cunningham, 187 Mo. l. c. 195, in which this court construed deeds containing recitals somewhat like the one to Mrs. Gray to create tenancies in common; but those eases are distinguishable from the one at bar. In those cases from the relation of the grantors to the grantees, as well as from the phraseology of the deeds themselves, the intention to create a tenancy id. common is made reasonably clear.

As the deed from Elijah Gray and wife conveyed only a life estate to Sallie Gray, the remainder vesting in her children then alive and thereafter born to her through her marriage with James P. Gray, and the plaintiff Charles E. Gray being one of six children by said marriage, and not having parted with his interest thus derived, the judgment of the trial court decreeing him to have an undivided one-sixth interest in remainder'in the land in controversy, subject to the life estate conveyed by his mother, was for the right partjr, and is therefore affirmed.

Kennish, P. Jand Ferriss, J., concur.


author: KENN1SH, J.

text:
    THE STATE ex rel. WILLIAM CAULFIELD v. BROADDUS et al., Judges Kansas City Court of Appeals.
    In Banc,
    April 25, 1911.
    1. MANDAMUS. Pleading: General Denial. A general denial in respondents’ return to an alternative writ in mandamus will be disregarded, as not a sufficient traverse of the writ’s allegations.
    2. -: -: Reply: Treated as Demurrer. Where relator’s reply to respondent’s return in mandamus does not raise an issue of fact, but prays the issuance of the peremptory writ, it may be treated as a demurrer to the return, and the cause considered at issue.
    3. APPEAL: Abstract: Affidavit: Sufficiency. It is not necessary to set forth in the abstract of the record proper the affidavit for an appeal in haeo verba or its contents, in order to entitle appellant to a hearing of his appeal in the appellate court. A statement in the record proper showing, in appropriate and unmistakable language and in narrative form, that the necessary steps to remove the case to the appellate court were taken, is a sufficient compliance with the statute and the rules of the court. A statement in the record proper, namely, that “afterwards on the 26th day of May, 1909, at said April term, 1909, of said circuit court, defendant filed its application and affidavit for appeal, and on the same day the court granted and allowed defendant an appeal to the Kansas City Court of Appeals, and approved the bond of said defendant for an appeal,” is a sufficient setting forth of the affidavit to invest the Court of Appeals with jurisdiction of the cause; and the Court of Appeals committed error in dismissing the appeal on the ground that “the abstract of the record proper does not contain the affidavit for appeal, nor its substance.”
    4. -: Wrongful Dismissal by Court of Appeals: Mandamus. ■ When a Court of Appeals has improvidently dismissed a ease appealed to -it, on the ground that the abstract of the record proper fails to show an affidavit for an appeal, whereas in fact the matters set forth therein show a sufficient compliance with the statute in that respect, the Supreme Court will compel said Court of Appeals, by its writ of mandamus, to exercise its jurisdiction to hear and determine the cause.
    Mandamus.
    Peremptory writ awarded.

      R. J. Hohnclen and W. C. Reynolds for relator.
   KENN1SH, J.

— This is an original proceeding by mandamus, brought by "William Caulfield, as relator, against the judges of the Kansas City Court of Appeals,' as respondents. It appears from the allegations of the alternative writ that relator appealed from a judgment rendered against him in the circuit court of Jackson county, to the Kansas City Court of Appeals. The cause was placed upon the docket for bearing and was submitted on briefs for decision in the latter court, but the court dismissed the appeal for the alleged failure of relator, as appellant, to comply with the rules of the court. Eelator filed a motion praying the court to set aside this order and judgment dismissing bis appeal and praying that the cause be reinstated on the docket for determination on the merits. That motion was oveiwuled and thereafter this court, upon relator’s petition, issued its’ alternative writ of mandamus to the respondents, commanding them to reinstate said cause on the docket- for bearing and determination, or to show cause why they should not do so.

The respondents filed a return, pleading affirmatively substantially the same facts set forth in the alternative writ, also a general denial.

Relator filed a reply which does not traverse the material facts of the return but, in effect, raises issues of law and prays the court to issue its peremptory Writ.

The general denial in respondents ’ return may be disregarded as not a sufficient traverse of the allegations of the writ. [State ex rel. v. Allison, 155 Mo. 325; Stale ex rel. v. Williams, 96 Mo. 13; State ex rel. v. Trammel, 106 Mo. 510.] And as relator’s reply does not raise an issue of fact, but prays the issuance of the peremptory writ, it may be treated as a demurrer to the return and the cause considered at issue. [State ex rel. v. Newman, 91 Mo. 445.]

The facts, as gathered from the pleadings and necessary to an understanding of the case, are substantially as follows:

A judgment was entered against relator in the circuit court of Jackson county on the 15th day of April, 1909. Eelator appealed from that judgment to the Kansas City Court of Appeals by what is known as the short form of appeal, and no question was raised in the said court of appeals, or is now raised, as to relator’s compliance with the statute in that regard. The case was set for hearing on the docket of the said court of appeals on April 12,1910'. A printed abstract of the record, consisting of two parts, namely, the record proper and the hill of exceptions, was served on the respondent and copies filed with the clerk of the court of appeals, as required by the rules of the court.

At the hearing the cause was submitted by the parties on briefs, and respondent therein raised no question; by supplemental abstract, or otherwise, as to the regularity of the appeal or the sufficiency of the abstract of the record. The court, on the 6th day of June; 1910, delivered the following opinion, dismissing relator’s appeal, to-wit:

‘ ‘ This is an action in replevin for a lot of personal property, which was begun before a justice of the peace. On appeal to the circuit, court judgment was rendered for the plaintiff. The appeal is taken by what is known as the short form. The abstract of the record proper does not contain the affidavit for appeal, nor its substance. We have no means of ascertaining if it was sufficient to-confer jurisdiction of the appeal on this court. It is not even recited that the trial court found it sufficient. Our rules require that the affidavit for appeal must be abstracted as a part of ‘the entire record,’ as authorized by section 813, Eevised Statutes 1899. .The point is directly decided in Shemwell v. McKinney, 214 Mo. 692, and Greenwood v. Parlin & Orendorff Co., 98 Mo. App. 407, 408. An affidavit is set out in the abstract of the bill of exceptions, but we have decided time and again that it is not a matter of exception and has no place in such bill. It must appear in the record proper. The appeal will be dismissed.”

After setting out the foregoing opinion, the return of the respondents to the alternative writ herein continues as follows:

“Respondents further say that they have full power and authority to determine said question. The question of the sufficiency of said abstract was for these respondents in their official capacity, as judges of the Kansas City Court of Appeals, to decide, and if their decision was erroneous it was only error that the Supreme Court is without authority of law by their writ of mandamus to compel the respondents to set aside and vacate the order, dismissing said appeal, or to reinstate said cause upon the docket of said Kansas City Court of Appeals, or to compel respondents to hear and determine said cause again, as recited in the alternative writ of mandamus. -That respondents have already rendered the only judgment which could have been rendered upon tbe subject-matter submitted for their consideration in said cause.”

Two questions are presented for consideration by the pleadings: First, is the recital in the abstract of the record proper, as to the filing of the affidavit for appeal, sufficient? Second, is the action of the court of appeals, in dismissing the case because of the insufficiency of the abstract of the record, subject to review by mandamus in this court?

The law applicable to the first of the foregoing questions has been the subject of investigation by this court in so many cases, a number of them quite recent, that nothing would be gained by a further discussion at this time. We. shall merely consider whether the abstract of the record, upon the point under consideration, was sufficient as tested by the decisions of this court, to entitle relator to a hearing of his case in the appellate court. The reference to the affidavit for appeal, as found in the record proper, and which the court of appeals adjudged insufficient, is the following: “Afterward on the 26th day of May, 1909, at said April Term, 1909, of said circuit court, defendant filed its application and affidavit for appeal, and on the same day the court granted and allowed the defendants an appeal to the Kansas City Court of Appeals, and approved the bond of said defendant for an appeal.”

It appears from the recital in relator’s abstract of the record above set forth that an application and ' affidavit for appeal was filed in the trial court by relator* as appellant, and that the court, acting judicially thereon, granted and allowed an appeal to the Kansas City Court of Appeals. And it must be admitted that ,if a statement in the record proper, showing in appropriate and unmistakable language and in narrative form, that the necessary steps to remove the case to the appellate court were taken, is a sufficient compliance with the law and the rules of the court, then the abstract before us must be upheld. On the other hand, if the affidavit itself is required to be set out in haec verba, or even the substance thereof, meaning by substance the essential facts required to be contained in the affidavit, then the holding must be otherwise.

In the case of Grriffin v. Franklin, 224 Mo. l. c. 681, discussing the subject under consideration, Lamm J., speaking for the court, said: “Respondent files a motion to dismiss based on the theory that we have no jurisdiction because there was no affidavit for an appeal abstracted. A subdivision of plaintiff’s brief is directed to the same point. The abstract shows that appellant ‘applied for and was granted an appeal’ to this court; that the order therefor was then'and there, duly entered of record. The abstract further shows that appellant ‘ appealed the case in due and statutory form,’ etc. The abstract is somewhat scant, but it is helped by necessary inferences. The presumption arises that the court proceeded by right and not by' wrong and we think the expression ‘ due and statutory form’ implies an affidavit (see Ray County Savings Bank v. Hutton, 224 Mo. 42, arguendo, on a kindred contention). But in this case the record entry showing an affidavit was filed, was brought here on appellant’s suggestion of a diminution of the record and is shown by the return of the clerk to our writ of certiorari. We think.the foregoing sufficient to show our jurisdiction.” It should be added that even in the return of the clerk to the writ of certiorari, referred to in the foregoing extract, the recital as to the affidavit for appeal, which was held sufficient in that case, was in narrative form and is as follows: “Defendant files his affidavit praying an appeal from the judgment of the court herein to the Supreme Court of the State of Missouri, which is by the court granted. The court fixes the amount of the defendant’s appeal bond at the sum of one hundred dollars.”

The same question was passed upon in the case of State ex rel. v. Broaddus et al., 216 Mo. 336. In that case Valliant, J., speaking for this court, l. c. 348, said: “It being conceded that in all other respects the record is sufficient, and there being no counter abstract filed, we hold that the statement in the abstract to the effect that the record proper of the circuit court shows that during the same term in which the motion for new trial was overruled the defendant filed an affidavit for an appeal and that on that affidavit the court made the order allowing the appeal to the Kansas City Court of Appeals, is sufficient to confer appellate jurisdiction of the cause on that court, notwithstanding neither the affidavit for the appeal nor a statement of its contents appears in the abstract.” The doctrine of that case has been restated and reaffirmed in the recent case of Hutchison v. Patterson, 226 Mo. 174. See, also, State ex rel. v. City of Stanberry, 172 Mo. 618; Elliott v. Delaney, 217 Mo. 14.

Under the law, as declared in the eases cited, it must be taken as the settled appellate procedure of the courts of this State that it is not necessary to set forth either the affidavit in Tiaec verba, or its contents, in.order to entitle appellant to a hearing of his appeal in the higher court.

• In the opinion of the Kansas City Court of Appeals, dismissing relator’s appeal, and set out in the return of the respondents herein, the case of Shemwell v. McKinney, 214 Mo. 692, is cited as authority for the action of the court in holding the abstract-of the record insufficient. In that case this court said: “The abstract of the record proper does not show an affidavit for an appeal in this cause, nor does it state the substance of any such affidavit.” The case last referred to does not set forth the facts which appeared in the abstract of-the record then passed upon. An examination of that abstract, as it appears in the files of this court, discloses the fact that no affidavit was set out or even referred to and, therefore, the judgment of the court on the facts before it was undoubtedly correct. The abstract in relator’s case, and under consideration, was so different in its facts that the ruling of the court in the Shemwell case cannot be regarded as authority in the case at bar.

As to the second proposition of law it is sufficient to state, in the language of the syllabus of the case of State ex rel. v. Smith, 172 Mo. 446, that, “When a Court of Appeals has improvidently dismissed a case appealed to it, the Supreme Court will compel it by mandamus to exercise its jurisdiction to hear and determine the cause.” The law declared in that case has been affirmed in a number of subsequent decisions and it should no longer be considered- an open question. [State ex rel. v. Smith, 172 Mo. 618; State ex rel. v. Broaddus, 207 Mo. 107; State ex rel. v. Broaddus, 210 Mo. 1.]

It follows from tlie views above expressed that tlie peremptory writ should be awarded. It is so ordered.

All concur.