author: Napton, Judge,

text:
    Patterson & Wife, Defendants in Error, v. McCamant, Plaintiff in Error.

    1. A bill of peace to restrain a person from instituting ejectment suits against another, on the ground that such suits would be vexatious, can not be maintained unless the title to the land in dispute has been fully and satisfactorily litigated at law; the institution of repeated ejectment suits, if the same are abandoned before trial, can not furnish a foundation for the maintenance of a bill of peace to restrain vexatious litigation.

      Error to St. Louis Land Court.

    The facts sufficiently appear in the opinion of the court.

      Cates and Casselberry, for plaintiff in error.

      Glover and H. M. Jones, for defendants in error.
   Napton, Judge,

delivered the opinion of the court.

We have not been able to perceive any principle upon which the decree in this case can stand. The principle asserted in the bill and carried out by the decree is, that a court of equity will interpose its authority by perpetual injunction in favor of a person in possession of land, whose title is threatened by, another person holding a worthless claim to the same land, where the person holding the adverse title is insolvent, and he has already brought two suits in ejectments and caused them to be dismissed or taken non-suits. These were the material facts upon which the decree was based.

The case is supposed to fall within a class of equitable proceedings termed bills of peace, but the petition will be found to lack the essential elements of such bills. There are two kinds of bills of peace, and only two kinds. The first is, where courts of equity, upon the sole ground of preventing multiplicity of suits, will try a title or have it tried upon proper issues, because there is a number of persons interested in it, and a great many actions at law would be necessary to conclude the title. Suits concerning fisheries, parochial tithes, &c., are of this kind and fall within this class. Another class of cases is where the title has been fully and satisfactorily litigated at law. It put a stop to vexatious suits, which courts of law can not do; equity will interpose by injunction.

In this case, there is but a single claimant and a single party in possession, and it is not asserted in the bill nor found by the court that any trial at law has ever been had. It is not perceived how the alleged fact of insolvency can give any additional claim to an interposition by injunction. If the title is worthless and the holder of it insolvent, the latter circumstance would not seem to give it any additional importance as a means of annoyance. The right which a party plaintiff has in all actions to take a nonsuit, although its exercise may, in ejectment as well as other forms of action, occasion annoyance and protract litigation, is not believed to be a sufficient cause of itself to warrant a court of equity to interpose its power of injunction. The statute has prescribed a limit within which actions must be brought; but so long as a party keeps within that limit, his right to sue and to abandon his suit as often as he pleases, can not be questioned. As he has to pay the costs of such dismissal or nonsuits, that circumstance will, it, is presumed, in most cases, furnish a sufficient protection to his adversary against abuses of the power. The bill, answer, evidence and finding of the court will show this case to partake more of the nature of an action of ejectment than a bill in equity, since the title on both sides was investigated and determined. No authority has been found to justify a court of equity in trying the merits of adverse titles upon a bill of peace, unless under the circumstances we have heretofore stated.

The case of Welby v. The Duke of Rutland is a satisfactory authority on this point. In that case Welby and the Duke of Rutland claimed the same manor, and the Duke had appointed a game-keeper and had the appointment registered. The plaintiff Welby asserted that the Duke had no title of any validity whatever, and that his claim was a cloud upon his title and was a serious obstruction to a sale or other disposition of his estate, and the bill asked for a perpetual injunction against the Duke, if upon proper issues the title was found as asserted to be of no validity. The Lord Chancellor Ashley dismissed the bill and his decree was affirmed in the house of lords. It is declared to be the uniform and well established practice of courts of equity to dismiss such bills, and that it is not their province to try legal titles or enjoin an asserted one until it had been tried at law. (2 Bro. P. C. 42.) In Devonsher v. Newenham, 2 Sch. & Le. 204, Lord Redesdale was very clear upon the same point. That was a case where devisees under a will brought a bill against persons claiming a title paramount to the will and calling on them to litigate their claims with the devisees. Lord Redesdale said, “ No such suit has ever been entertained, so far as I can find, and it would be most dangerous to give the example of entertaining such a suit.” He explains the cases where equity may interpose : “ If there is an assertion of title by a suit at law, in which the party fails, but yet asserts it frequently in the same manner, such an assertion becomes oppressive to the opposite party, and as it may be made by ejectment — a proceeding which may be repeated forever, (and which is not as now any part of the old law)— courts of equity may interfere to prevent such an oppressive proceeding, which overturns the principle of the ancient law, calculated to prevent perpetual litigation. It is on this ground courts of equity have interfered by bills of peace.”

The same eminent judge repeats his explanation of bills of peace in his Treatise on Equity Jurisprudence: “ Such a bill,” says that work, “ can scarcely be sustained where a right is disputed between two persons only, until the right has been tried and decided upon at law.” (Mitford Eq. Pl. 44.) The cases of the Mayor of Pilkington, 1 Atk. 530 ; Bush v. Western, Prec. in Eq. 530, and Donel v. Girdle, Prec. in Eq.-, confirm this view of the subject. Judge Story, in his Treatise on Equity, also entertains the same opinion with Lord Redesdale, and quotes with approbation from his treatise. Judge Story says that, “ in order to entitle a party to maintain a bill of peace, it must be clear that there is a right claimed which affects many persons ;” that if the right be disputed between two persons only, the bill will be dismissed ; and, in relation to the cases where an interference is asked to prevent vexatious litigation after repeated trials at law, he says : “ Courts of equity will not interfere in such cases before a trial at law, nor until the right has been satisfactorily established at law. But if the right is satisfactorily established, it is not material what number of trials have taken place, whether two only or more. (2 Story on Eq. § 859.)

There is a class of cases in which courts of equity interpose by injunction to prevent irreparable mischief, and another class where the assistance of that court is invoked to have conveyances made to defraud creditors set aside; but it is obvious that the bill in this case was not framed so as to fall within either of those eonccded branches of equity jurisprudence.

The judgment is reversed;

Judge Scott concurs. Judge Richardson not sitting.


source: Caselaw Access Project

license: Public Domain

text:
    McAllister, Appellant, v. Pennsylvania Insurance Company of Pittsburgh (Garnishee), Respondent. McAllister, Appellant, v. Commonwealth Insurance Company of Harrisburgh (Garnishee), Respondent.
    1. Poreign incorporated insurance companies, which have established agencies within this state, and whose agents have complied with the provisions of the act licensing and regulating agencies of foreign insurance companies (R. C. 1855, p. 884), are subject to garnishment process.
    2. Service of garnishment process may be had in such case upon the authorized agent of the foreign insurance company, he being a chief or managing officer thereof within the meaning of the twenty-sixth section of the first article of the attachment act.

      Appeal from St. Louis Court of Common Pleas.

    Eoger C. McAllister, having recovered judgment against one Beasley, caused execution to issue thereon. The sheriff made the following return of this execution : “ I did, by order of the plaintiff Eoger C. McAllister, October 20, 1857, summon the Pennsylvania Insurance Company of Pittsburgh and the Commonwealth Insurance Company of Harrisburgh, Pennsylvania, and by delivering to George K. Budd, agent of each of said insurance companies, a written copy of the garnishment; further, by summoning said insurance companies to appear at the return term of this writ to answer the interrogatories that may be exhibited by the plaintiff touching their indebtedness to the defendant Benjamin P. Beasley ; and I further declared to said Budd that I did attach in the hands of said insurance companies (and summon them as garnishees) any goods, chattels, moneys or evidences of debt which said insurance companies may have belonging to said defendant; and further, that I did attach in said insurance companies’ hands all debts due from them to said defendant, or so much thereof as shall be sufficient to satisfy the debt, interest and costs in this case.”
    Both of the companies mentioned in the return of the sheriff filed separate motions praying the court to set aside the return of the sheriff and to discharge them from answering the interrogatories, on the ground that it did not appear by said return that any legal service of the notice of garnishment was made by said sheriff, or that the companies had been legally subjected to the jurisdiction of the court.
    The court sustained the motions.

      Hart, Thomas Sf Sharp, for appellant.

      Drake, for respondents.
    I. The sheriff’s return is not sufficient to give the court jurisdiction. (See Thatcher v. Powell, 6 Wheat. 119 ; United States v. Arredondo, 6 Peters, 709.) The return can not serve as the foundation of any proceeding against the garnishees. It shows nothing more than that two companies styled therein insurance companies were garnished by serving notice of garnishment on an individual whom the sheriff styles their agent. This is no mode of summoning a garnishee known to the law of this state. If the companies are incorporated, service is required to be by delivering the notice of garnishment to the “ president, secretary, treasurer, cashier, or other chief or managing officer of the corporation.” (R. C. 1855, p. 246, § 26.) If unincorporated, they can not be summoned as associated bodies by notice to their agent or any of their officers. If they do business through an agency established under the “ act to license and regulate agencies of foreign insurance companies,” the difficulty of holding them as garnishees is only increased. The record does not show the situs of the companies and the court can not presume it. It does not show that they are doing an insurance business in this state through an agency established under said act; nor that the person on whom notice was served was the agent for the transaction of that kind of business under said act. Besides, there is no law of this state authorizing notice of garnishment to be served upon a foreign insurance company by delivery to its agent. If the foreign insurance company can be garnished at all in the courts of this state, it must be when the company is a corporation, and then the service must, as in the case of a domestic corporation, be served upon some one of the officers mentioned in the section above cited. Even if there were such a law, it could have [no] force to require foreign corporations to answer as garnishees in our courts. (3 Mete. 564; 1 Gray, 424; 33 New Hamp. 337.)
   Napton, Judge,

delivered the opinion of the court.

These cases involve the same questions. The return of the sheriff to writs of executions against one Beasley stated that by order of the plaintiff in said executions he had summoned the two insurance companies named, by delivering to George K. Budd, their agent, a written copy of the garnishment, &c. The two companies denied their liability to answer such a process thus served and returned, and of this opinion was the court of common pleas and they were consequently discharged. The judgment of the court must have proceeded either on the ground that foreign insurance companies, under our laws, are not subject to garnishment, or that the service of the writ in these particular cases was insufficient and illegal.

The seventh section of the execution law provides that “ no corporation, officer or person exempted from garnishment by the act to provide for suits by attachment shall be summoned as garnishees under the provisions of this law.” The twenty-seventh section of the attachment law specifies the officers and corporations which are exempted from this process, and the present garnishees are certainly not included within the exceptions. The twenty-fifth section of the same embraces, as liable to the process, “ all persons who are named in the writ, and such others as the officer shall find in the possession of goods, money or effects of the defendant not actually seized by the officer, and also such as the plaintiff or his attorney shall direct.” The twenty-sixth section says that “ notice of garnishment shall be served on a corporation in writing, by delivering such notice or a copy thereof to the president, secretary, treasurer, casliier, or other chief or managing officer of such corporation.”

When it is considered that the attachment law treats a foreign corporation, having its chief place of business within this state, upon the same footing with domestic corporations and protected from that extraordinary and summary process in the same cases in which our own corporation would be; when, in connection with this, we see the act of December 5, 1855, concerning agencies of foreign insurance companies, recognizing them, when established in conformity to the directions of that law, to all intents as domestic corporations, it would seem to be a reasonable interpretation of the language of the twenty-sixth section of the attachment law that an agent of a foreign insurance company located here and doing business under this law of 1855, should be deemed a “ managing officer” of such corporation for all the purposes of an attachment or garnishment. Such agents do in fact represent the corporation here, although, in the foreign country where the corporation has been chartered and its chief place of business is, there is another chief officer of such corporation.

We are not aware of any principle of public policy which could induce the legislature designedly to discriminate between domestic insurance companies and these agencies of foreign insurance companies, which they have allowed to transact business here with all the privileges of domestic corporations, so as to exempt the latter from liability to a process to which the former is undoubtedly liable. There is no more inconvenience in requiring a debt, confessedly due, to be paid over to a creditor of their creditor in the one case than in the other ; and it could only be by some oversight in the law-makers if any such discrimination had been left in the statutes. But we consider the language of the twenty-sixth section sufficiently comprehensive to cover all cases, the agents of foreign insurance companies as well as the chief officers of those chartered and located here.

The return of the sheriff was, in our opinion, prima facie sufficient. If the Pennsylvania Insurance Company of Pittsburgh is not a corporation, and not a foreign corporation as its name alone would indicate; if George K. Budd is not their authorized agent, as the sheriff certifies he professes to be ; if they have not complied with the provisions of the act of December 8,1855, and have no authority or right to transact business of this kind here, these are matters within their knowledge and may be set up in the answer if denied. How far such a defence would be available is another matter, not important to be decided here. We will presume they have done their duty and complied with the law until the contrary appears.

Judge Scott concurring, the judgment is reversed and the cause remanded.


author: Scott, Judge,

text:
    The State, Respondent, v. Lamb, Appellant.
    X. To render a voluntary confession, made by an accused person before a committing magistrate and reduced to writing by the latter, admissible in evidence on the trial, it is not necessary that the record of the proceedings of the magistrate should show specifically that the prisoner was distinctly informed of the charge made against him and that he was at liberty to refuse to answer any question put to Mm, and that a reasonable time was allowed the prisoner to advise with his counsel and for that purpose to send for counsel; it is sufficient if it be shown upon the trial, by the testimony of the committing magistrate, that the requirements of the statute in this regard had been complied with.
    2. A judicial confession is sufficient to found a capital conviction upon, although uncorroborated by any independent proof of the corpus delicti.

    3. An extra-judicial confession, with extrinsic circumstantial evidence satisfying the minds of a jury beyond a reasonable doubt that the crime charged has been committed, will warrant a conviction, although the dead body may not have been discovered and seen so that its existence and identity can be testified to by an eye-witness.

      Appeal from St. Louis Criminal Court.

    George H. Lamb was indicted for the murder of his wife Sarah S. Lamb by drowning her in the Mississippi river, in December, 1857. The evidence chiefly relied upon on the part of tbe State was the confession of Lamb voluntarily made by Mm before Rudolph Herkenrath, a justice of the peace, in the city of St. Louis, before whom he was taken for examination. The transcript of the docket of the justice, which, together with the confession of Lamb reduced to writing by the justice and signed by Lamb, and other papers, were delivered to the clerk of the criminal court, contained the following statement: “ Defendant, with consent of the attorney for the State, waives an examination, and having been advised by the justice of his rights under the statute, makes a voluntary confession, filed herewith.” The confession was as follows : “ I was married to Sarah S. Stafford in the court-house at Quincy, Illinois, in November, 1856, by a justice of the peace. I was then a resident of Mendota, La Salle county, state of Illinois. I did not take my wife to Mendota with me. I left her with her father at Hamilton. I returned to Mendota. Last November, (1857,) I went to Hamilton to remove her from her father, to go to Memphis or some place south to spend the winter. My wife and I came to St. Louis, I think about the 28th of November, 1857. We got here about daylight in the morning, and took breakfast and dinner at King’s Hotel. Prom there we went up to the Astor House on Franklin avenue, kept by Hermann Norp. My wife was unwell during the time we were at the Astor House. I had two physicians attending on her — Dr. Christopher and Dr. Washington. Her sickness was caused by my giving her poison, strychnine. I bought it on Broadway, in a drug store in this city. I bought it for the purpose of giving it to her. I think I gave the strychnine to her twice. My intention was to dispose of her in some way. I had in my mind to destroy her. Norp and his lady came in and showed a good deal of distress about it, and I sent then for a physician for fear they might suspect something. The physicians prescribed for her. I gave to her what the physicians prescribed for her. I think I did exactly. I may not have given it to her. She recovered from the effects of the poison administered to her. She threw it tip before I had giren her the prescription of the physician. I think she did because she vomited. I think I gave her the poison about the 2d or 8d of December. She was confined to her bed some days. She set up only a little while at a time for about two weeks after. About the 17th of December, we left the Astor House; the sun might have been about two or three hours high yet. I told her I was going down the river to Carondelet. We left there in a baggage wagon. No body went in the wagon with us but the driver. We took a band-box with a bonnet in it with us. She was apparently perfectly willing to go with me. We went down to the lower ferry landing. I did not know the driver of the baggage wagon. I think he was a colored man. We got out at the ferry landing. She sat in a room there. There was a young man there. I asked him whether she might sit there. He said she might. I had told some boys to bring a skiff there for me. I paid them at that time six or seven dollars for the skiff. We remained there about a full hour before the boys brought the skiff. My wife left in the skiff about two minutes after the boys had come. We started on down the river. We stopped about fifty rods below the steamboats, near where the streets are built out in the river, to get a stone or weight. I told her I wanted the stone to put in the bottom of the boat to keep it more even. One of the boys brought me two stones. There were two boys; each one brought one. I did not go out of the skiff at all. My design was to use these stones to sink the body. I noticed an island or sand bar. I saw an island without trees on it on the Missouri side. The island must be above Carondelet. I noticed but one island. We proceeded about half way down the island, on the east side of the island, near the channel, where the steamboats run. It was getting considerably dark. It may have been from twenty to fifty rods. * * '* It is rather on the Missouri side of the channel. The steamboats ran between us and the Illinois shore. I then put my hand right back of her neck and pushed her head under the water. I held her head about two minutes under the water. I then raised her head partly out. She was dead. Her death was caused by my holding her head under the water.  I then took the two shawls off and took the bonnet off, and took a string of twine and wrapped it around one of the stones and tied it, and then tied the twine around her neck. The string between her head and the stone was about four to sis feet long. I then lifted the stone over the skiff and then let down the stone and the stone thus drew her right down. The stone may have weighed about ten or twelve pounds; was about eight inches long and four inches thick. I got the twine for the purpose of using it as I did. I got the stones to sink the body. After sinking the body I went right ashore. I got ashore on the sand-bar on the Missouri shore. I then shoved the skiff right out in the stream. It was a medium sized skiff, from thirteen to fourteen feet long. I can’t tell whether the skiff was painted. I left the oars ; there were three or four — two short ones and two of pretty good length. I left no stones in the skiff. There was a rope or a chain in the skiff. I halloed from the sand-bar about an hour until an old countryman, I think a Dutchman, came and crossed me over. It was getting dark when I threw her overboard. I designed drowning my wife when I left the Astor House with her. I felt dissatisfied and felt as if I could not live happily with her. That was my motive for drowning her. She had never said or done any thing to cause me to feel that way that I can think of. I could not say that I had any ill-feelings toward her or any of her relatives. I felt as if I could not go back with her as my wife amongst my relations and acquaintances, as I had married one who was not my equal. I came up to the city about nine o’clock that night. I lodged in a house on the east side of Broadway, between Cherry and Wash streets. There was a hat store a little above that got on fire before that time. I don’t know the name of the house nor of the man who kept it. I left the city, I think, the next day after. I went then right to her parents. I took her baggage to them. I told them I had buried her in Memphis. I gave them the names of the physicians who attended on her. I don’t recollect the names now. I told them this to cover it up in some way. I married again on the 30th of December, 1857, a girl by the name of Louisa Shortliff. She did not know that I had been previously married to Sarah Stafford. I married so soon after the death of my wife because she said she would not wait any longer. She did not know any thing of this. She was perfectly innocent. I had been keeping company with her along through the fall months. I can not bring in any other excuse for murdering my wife than for the purpose of marrying that other woman. My present wife was not in the family way before I married her. I had not had any intercourse with her before our marriage. My opinion is that the piece of French merino now produced is of the dress my wife had on when I drowned her. I have made a confession to Mr. Stafford that two men were in the skiff with me. I am sorry that I have said it. That was a false statement. This statement is a true one as near as I can tell it. I don’t know why I told Mr. Stafford that two men were with me, unless it must have been the evil spirit in me that made me tell it. Two men knew of my design to murder my wife. I think they only knew it a few days before I did it. I told them all they knew. I asked one of them to assist me in the matter. He expressed his willingness to assist me out of friendship. He went down to the river alone on foot, not in a wagon. His name is Josiah Moyer. At that time he was boarding at the house where I lodged the night I came back. I paid him five dollars for assisting me. He knew my intention when I went to the river. He carried nothing to the river for me. We talked about his going down with me a little before we started. He went down because I wished him to. The other man’s name, whom I had informed, was Joseph Sawyer. He was in Mendota when I left. I don’t know where he is now. I told Mr. Moyer this; I think I said in these words that “ every thing had gone under.” Moyer was a small sized man, of about one hundred and thirty pounds, of a dark complexion, spare-faced man; I think black hair. He is a painter by trade. I don’t know where he resides. He may be from twenty-five to thirty years old. They are the only two persons who knew of my design. I had said something about it to a man by the name of Thomas S. Beal. He left the city before it transpired. Sawyer is about five feet ten inches high. I may have told him things that I don’t think of. Norp and family did not know any thing of it at all. My intention when I came here was and is to tell the plain truth. It will relieve my mind some at any rate. I have no hard feelings against the two men. As soon as I had sunk the body I left right away. I did not stay to notice if the body rose again. I let the stone down the length of the twine, and the stone drew it right down. There were two men in the skiff that took me from the bar on shore. They made their skiff fast there to something and then we went together towards town. I then stopped at a public house and took the omnibus. I saw Moyer standing on some boat when I left the ferry landing. I next saw him after that on Franklin avenue. I told him that every thing had gone under. I have not seen Moyer since I left this place. I paid Moyer the five dollars for assisting me in carrying the baggage from the Astor House to his lodging room. Moyer had no money to pay his board. His intention was then to give it back to me. He did not take it with the understanding to assist me for the five dollars. If there is any thing in this statement contradictory to any former statement, it is not from any intention on my part to say what was not true. From the condition of my mind at this time it might not be a wonder that it would not agree with what I have stated before. I have endeavored to mate a frank confession. I have once left the church. It is the transgression of my duties toward my God that has brought me here and brought this on me.”
    The circuit attorney, previous to offering the above confession in evidence,' introduced Herkenrath, the justice before whom Lamb was taken for examination and before whom the confession was made, as a witness. He stated, in substance, that Lamb was duly informed of his rights; that the affidavit of Mr. Stafford, upon which he was arrested, was read to him; that he was distinctly informed of the charge made against him, and that he was at liberty to refuse to answer any question put to him ; that he informed Lamb that he might send for and advise with counsel; that he declined doing so and stated that he wished to make a confession. The defendant, by his counsel, objected to the introduction of the confession and accompanying paper ££ on the ground that it could not be read as a judicial confession because not taken in due course of law, as the transcript shows on its face; nor as extra-judicial, because it purported to be an examination of the prisoner, had before a judicial tribunal, in which the defendant was a prisoner, by legal process, on a legal accusation.” The court overruled the objection and admitted the confession in evidence.
    Other testimony was introduced corroborating the truth of the statements made by Lamb in his confession. The date of his marriage to Miss Stafford, the circumstances under which that marriage took place, his mode of life previous to his starting professedly for Memphis with his wife ; the fact that he came to St. Louis and went with his wife to Norp or Noble’s to board; that while there he did send for beer for his wife; that on two several occasions his wife became very sick at Norp’s or Noble’s — being afflicted with convulsions in some form ; that Drs. Christopher and Washington were successively called in to prescribe for Mrs. Lamb; that though they did not suspect the administering of poison to her, yet some of her symptoms were such as might possibly have resulted from strychnine ; the fact that he came to Noble’s on the 28th of November and left, professedly on his way to Memphis, on the 17th of December, 1857, in a baggage wagon, as stated in the confession, about three o’clock in the afternoon; that he came back and at about nine o’clock in the evening engaged lodgings at the place on Broadway mentioned in the confession; that the next day he left the city and went to Mr. Stafford’s and stated that his wife had died at Memphis; that he married Miss Sliortliff immediately; all these facts were proven by evidence outside the confession.
    The court, of its own motion, charged the jury as follows : “ 1. If the jury believe from the evidence that the defendant, at St. Louis county and previous to the finding of the indictment, did wilfully, deliberately, premeditatedly, and of his malice aforethought, kill and murder Sarah S. Lamb in manner and form as charged in the indictment, they will find him guilty of the offence of murder in the first degree. 2. If the jury have reasonable doubt of the guilt of the defendant, they ought to give him the benefit of the doubt and acquit for that reason. 8. To warrant, a conviction of the defendant, the jury must be satisfied by the proofs that Sarah S. Lamb is dead; that she met her death at the hands of the defendant as charged in the indictment, and in the county of St. Louis, as also charged.”
    The defendant was found guilty of murder in the first degree.

      U. J- T. Wrig'ht, for appellant.
    I. The verdict and judgment are void for want of jurisdiction in the court. All the evidence is preserved and it fails to show that the alleged crime was committed in St. Louis county. This is fatal. (28 Mo. 509; 3 S. & M. 533.)
    II. The paper purporting to be the statement of defendant on his examination before the justice was improperly received in evidence. The transcript of the justice does not show a compliance with the precedent conditions essential to its admissibility as legal evidence. The justice could no more judicially certify that he construed correctly and enforced aright the provisions of the statute than a sheriff can return that he served a writ according to the provisions of law. The justice acts ministerially; the transcript must record what he did. (R. C. 1855, p. 1162, § 15, 16, 17.) It was error to let the justice supply by parol evidence the defects of the transcript. (1 Greenl. Ev. § 224, 227 ; 8 C. & P. 375, 547, 551; 2 Stark. Ev. 571.) The paper could not be read as a judicial confession because not taken in “ due course of law,” nor as extrajudicial because it purports to have been taken in his examination before a judicial tribunal in which the defendant was a prisoner by legal process on a legal execution. The court erred in permitting the justice to answer the question, “ what took place or what was said and done between you and the prisoner at the time you took down the confession ?” The evidence thus allowed to go to the jury embraced words of the justice and words of the defendant made during his examination, not contained in the written evidence of his statement.
    III. The evidence was legally insufficient for conviction. The body of the offence was not proved aliunde the confession, and that is essential. (1 Hayw. 524 ; 15 Wend. 153 ; 2 Hale P. C. 290; Burrill on Circum. Ev. 678; Best on Presumptions, § 202; Hindmarsli’s case, 2 Leach, 649; 26 Miss. 157; 12 Mo. 592; 4 Black. 35.7; 1 South. 239 ; Whart. C. L. 313 ; Wills on Cir. Ev. 61; 1 Wend. 53; Peck, 140; 1 Greenl. § 247; 17 Ill. 426; Rogers, N. Y., 150 ; Bible, Joshua, ch. 7, v. 22 ; 2 Sam. ch. 1, v. 16.) The confession in this case was falsified by the evidence as to the poisoning at Noble’s. It is manifest from the confession itself that there were witnesses not in court who could have proved facts of the utmost importance bearing upon the corpus delicti so as to bring this case within the operation of the principle of Hennessy’s case, 15 Wend. 153.

      IV. The instructions were improper, and inadequate — improper, because they left the jury to the conclusion that the confession was competent to establish of itself, 1st, the fact of the death of Sarah Lamb ; 2d, that she was killed by defendant; and 3d, that she was killed in the manner set out in the indictment, and that no independent proof need be shown to authorize a conviction ; — inadequate, because there was no word of caution or light given to the jury as to how they should deal with confessions.
    Mauro, (circuit attorney,) for the State.
    I. The production of the dead body is not always indispensable in cases of capital homicide. The death may be inferred from circumstances. (See 3 Greenl. Ev. § 30; Commonwealth v. Webster, 5 Cush. 296 ; United States v. Gilbert, 2 Sumn. 27 ; U. S. v. Johns, 1 Wash. C. C. 372; Burrill on Cir. Ev. 679; People v. Ruloff, 3 Parker, 401.) The corpus delicti as well as the guilt of the defendant may be established by judicial confession made either in open court or on examination before a committing magistrate, though there be no corroborating circumstances proven in evidence. The same is true of extra-judicial confessions. Unquestionably so when the truth of such confession is made apparent by the proof of the truth, by evidence outside and independent of the confession, of facts and circumstances stated therein. (Joy on Conf. 64; 2 Russ, on Crimes, 824 ; 1 Phill. Ev. Ill; 2 Stark. 39; MacNally on Ev. 51; 1 Hayw. 524; 7 Ired. 239; 11 Georg. 237; 15 Wend. 152 ; 16 Wend. 53 ; 12 Mo. 593 ; 17 Ill. 426.) The material inquiry is not, has the corpus delicti been otherwise established ? but, are there corroborating facts and circumstance proven outside the confession establishing its truth ? The confession in this case is a judicial confession. Besides, it is corroborated in so striking a manner by the proof of the matters stated in it as to produce the fullest assurance of its truth. Even if it be but an extra-judicial confession, it may be safely relied on for all purposes. The venue was proved. S'q the jury determined.
   Scott, Judge,

delivered the opinion of the court.

We will notice in their order the several points on which the prisoner seeks a reversal of the judgment against him.

A ground of complaint against the judgment of the court below is, that there was no evidence, or at least an insufficiency of evidence, to warrant the jury in finding that the murder was committed within St. Louis county, the county in which the indictment charges the crime to have been committed. It is maintained that the want' of this evidence renders the verdict and judgment void, as showing that there was no jurisdiction in the court. The fact of the venue is like any other material fact in a criminal case; it must be satisfactorily proved; otherwise the prosecution must fail. •There is no more importance attached to this fact than to any other material one, and an omission or failure to prove it is attended with no more serious consequences than an omission or failure to prove any other essential element in the crime. It is submitted to the jury like all other facts to be proved, nor is any other or a greater weight of evidence necessary to establish it than any other fact. The jury are the judges of the weight of the evidence, and if it causes conviction in their minds it is not the province of an appellate court to interfere, after the court before which the cause was tried has expressed its approbation of the verdict by refusing to grant a new trial. In our opinion, the evidence in the cause on this point was amply sufficient to warrant the verdict of the jury.

Complaint is also made that the court erred in permitting the confession of the prisoner taken before the committing magistrate to be read in evidence, inasmuch as it did not appear from the justice’s transcript that he was distinctly informed of the charge made against him, and that he was at liberty to refuse to answer any question put to him; that the transcript merely stated that the prisoner, having been advised of his rights under the statute, made a voluntary confession. And it is maintained that it should have appeared from tlie justice’s examination that tbe accused was advised specifically of bis rights under the statute, stating what they were ; that it was not for the justice to determine the rights to which he was entitled, but they should have been spe cifically mentioned, in order that the courts might ascertain whether the statute was complied with or not. It seems that the English statute on- this subject did not reqtiire.,th&t the prisoner should be informed as to his lights^ JJ^Nallyjsfes, it does not appear necessary that the magijínyte, ’^tinfeiuc^-cially under the direction of the statute|[oj¿fPhifó& M^try» should, in order to make the written cqKt^sion^vid'e&ceil warn the prisoner of its effects against minn on the (McNally Ev. 26; 2 Stark. Ev. 29.) Oulk st^utS^nly»'?^ quires the examination to be taken in ww^ilgl else is required to be put down. As the examination of the prisoner might be read against him as a confession, there was a propriety in requiring it to be committed to writing that is not so obvious as to the facts preceding and accompanying it. That which was to affect the prisoner and which might be forgotten or perverted, the statute required to be written down, for plain reasons not applicable to other acts and forming no part of the confession. Without determining whether the examination might not have been read on the presumption that the officer had performed his duty; inasmuch as the magistrate was sworn on the trial and proved that the specific information required by the statute was communicated to the prisoner, that the affidavit on which the warrant issued was read to him, and' he informed that he was at liberty to refuse to answer any question put to him, we are of the opinion that the law was complied with and the prisoner deprived of no right to which he was entitled.

It was further objected to the validity of the judgment that the evidence was legally insufficient for conviction; that, independent of the confession of the prisoner, there was no proof that Sarah Lamb was dead; that she came to her death by any crime, or that she was killed in the manner charged in the indictment; that the body of the offence is not proved aliunde the confession, which is essential..

Confessions are either judicial or extra-judicial. Judicial confessions are those made in conformity to law before the committing magistrate, or in court in the due course of legal proceedings. It seems that these confessions, uncorroborated by any other proof of the corpus delicti, are sufficient to found a conviction, even if it be followed by a sentence of death, they being deliberately made, under the deepest solemnities, with the advice of counsel and the protecting caution and oversight of the jiidge. (1 Greenl. Ev. § 216.)

Extra-judicial confessions are those which are made by a party elsewhere than before a magistrate or in court. It is of these confessions, when uncorroborated by any other proof of the corpus delicti, that the question is made, whether they are sufficient to found a conviction. Whatever difference of opinion exists in respect to the weight which ought to be attached to evidence derived from these confessions, yet, where they are admissible and satisfactorily proved, they are deemed sufficient by the common law to convict a prisoner, even capitally, without the aid of any corroborative testimony of his having committed the offence. The principle thus stated does not exclude the idea that there may be evidence aliunde the confession of the corpus delicti and thus restricted it, is undoubtedly correct. (MacNally, 35 ; Joy on Conf. 64.) Instances may have occurred in which innocent persons have been convicted on false confessions; and so, too, innocent persons have been convicted by the testimony of perjured witnesses; but we are not therefore to reject all human testimony. No definite rules can be prescribed for ascertaining the credit to be given to confessions any more than to the evidence of witnesses. The weight to be attached to a confession, like the weight to be given to the testimony of a witness, must depend on the circumstances. The credit due it is a matter to be confided to the court and jury, and more justice will be done in the end by leaving each case to be determined by its circumstances, tban by attempting to impose arbitrary rules, which must result in many instances either in oppression to the accused or in impunity to the guilty. A modern author, speaking of the instances in which innocent persons have been convicted on confessions unfound ed in truth, remarks that, whilst such anomalous cases ought to render courts and juries at all times extremely watchful of every fact attendant on confessions of guilt, these cases should never be invoked or so urged as to invalidate indiscriminately all confessions put to the jury, thus repudiating those salutary distinctions which the court, in the judicious exercise of its duty, shall be enabled to make. Such an use of these anomalies, which should be regarded as mere exceptions, and which should speak only in the voice of warning, is unprofessional and impolitic, and should be regarded as offensive both to the court and the jury. So it has been said that it appears inaccurate to give all kinds of confessions the same confidence,' or to treat them alike with distrust. Like all other kinds of admissions, they admit of all shades of certainty and probability, from a solemn estoppel by matter of record to the slightest presumption arising from the most casual, suspicious or doubtful expressions. The jury are not only entitled, but bound to take into account all the circumstances under which a confession is made, and to give little weight to it, or throw it out of view altogether, according as these circumstances appear to incline less or more against the admission.

These observations apply unquestionably to confessions in cases in which it sufficiently appears from evidence outside the confession that the offence has been committed. But it is maintained that where the evidence cf the corpus delicti is to be found only in the confession, and there is no positive testimony besides the confession that the crime has been committed, that a prisoner can not be convicted on his uncorroborated confession alone. We do not deem it necessary to enter into an examination of the abstract question whether, when the only evidence of the fact that a crime has been committed is contained in the confession of the party charged with having committed the crime, he can be convicted on such a confession alone without any extrinsic corroborative circumstances. We term the question abstract, because such a case will rarely happen. The case of the prisoner is not of this class. Although the dead body has not been found, and although no witness swore that he saw the perpetration of the murder, yet the circumstances extrinsic to the confession, and established by other evidence, are so strong that they can not fail to satisfy any unbiased mind that the accused is guilty of the crime of which he has been convicted. We consider the true rule, as deduced from the current of authorities, to be, that an extra-judicial confession, with extrinsic circumstantial evidence satisfying the minds of a jury be yond a reasonable doubt that the crime has been committed, will warrant a conviction, although the dead body has not been discovered and seen, so that its existence and identity can be testified to by an eye-witness.

We do not deem it necessary to enter into an examination of all the authorities on this point. The rule as stated commends itself for its suitableness to the exigencies of all cases, and is in strict harmony with the principles on which all jury trials proceed. When the guilt or innocence of a prisoner is the subject of determination for a jury, they are the only competent judges of the sufficiency of the evidence to produce a conviction on their minds. When the evidence is legal and they are satisfied with its sufficiency, it is not for courts on fancied possibilities to disturb their verdicts. Our system of jurisprudence contemplates that jurors are as much superior to the courts in determining matters of fact as the courts are superior to them in deciding questions of law. The power of the courts to grant new trials finds no support in the mistrust of this principle, but is founded on the nature of the jury system, the liability of jurors to be misled, their being subject to err from undue influences to which they are exposed, and from the mode of their selection and the nature of their pursuits. (3 Greenl. Ev. § 30 ; United States v. Gilbert et al., 2 Sum. 19; Burrill on Cir. Ev. 679; Whart. Or. Law, 348-9.)

We are not of the opinion that the case made by the State was impaired or weakened by the failure to examine witnesses, who might hare testified in relation to facts stated in the confession. It does not appear that any of the absent witnesses could have proved positively that the murder was committed ; nor does it appear that the witnesses were within the power of the prosecution, or that any contrivance whatever was employed to keep them out of the way.

The prisoner asked no instructions, and we see no error in those given by the court. According to the law as has been stated, the confession, taken in connection with the extrinsic evidence, was amply sufficient to establish the fact of the murder of Sarah S. Lamb by the prisoner, in the manner charged in the indictment. The other judges concurring, the judgment will be affirmed.


author: Napton, Judge, Scott, Judge.

text:
    The State, Respondent, v. Houser, Appellant.
    1. The St. Louis criminal court has power, of its own motion, to order a removal of a cause to the St. Louis circuit court on the ground that the judge of the said criminal court has been of counsel for the defendant; the local act of December 11, 1855, (R. C. 1855, p. 1591,) is confined to changes of venue made upon the application of the defendant.
    2. Where an instruction given by the court could have had no influence on the verdict — there being no evidence upon which to ground it — an inquiry into its propriety as an abstract proposition of law will not be held obligatory on the supreme court.
    3. Where it is sought to show the presence of the defendant at the time and place of the homicide by showing the identity of a shirt, with marks of blood upon it, found at the place of the homicide on the morning after its commission, with a shirt worn by the defendant on the day of the homicide, the fact, testified to by the person, a relative of defendant, at whose house the homicide was committed, that she gave the shirt up to the brother of the defendant on his demand, is evidence tending to show the real opinion of the witness as to the question of identity and ownership of the shirt— she having stated that when she gave the shirt to the brother she told him that she did not think it belonged to the accused.

      4. The fact that a slung-shot was discovered in the pocket of a person on trial for a capital crime when about to be brought into court to be present at the rendition of the verdict is admissible in evidence against the accused on a second trial.

      Appeal from St. Louis Circuit Court.

    This was an indictment against Stephen H. Houser for the murder, in Gasconade county, on the 25th of July, 1853, of William D. Farris. The indictment was found at the September term, 1856, of the Gasconade circuit cout. A change of venue was taken to the St. Louis criminal court. Houser was convicted in the criminal court, Lackland, Judge, presiding, and the judgment against him was reversed in the supreme court. (See — Mo.-.) Afterwards, at the elec-
    tion held in August, 1857, Judge Lackland was transferred to the St. Louis circuit court, and Henry A. Clover, counsel for Houser on the former trial, was elected judge of the criminal court; and the court, of its own motion, made an order removing the cause to the St. Louis circuit court on the ground that Judge Clover, of the criminal court, had been of counsel for Houser.

      U. 8f J. T. Wright, for appellant.
    I. The circuit court had no jurisdiction of the cause. Its judgment is void.
    II. The court refused proper and legal instructions, and gave no equivalents. The case turned on the identity and ownership of the shirt. The court instructed the jury erroneously on the law of self-defence. (19 Mo. 506.)
    III. The court erred in permitting evidence to be introduced as to the slung-shot four years after the homicide.
    Mauro, (circuit attorney,) for the State.
    I. The judge of the criminal court properly made the order on his own motion to change the venue. (R. C. 1855, p. 539, § 41, p. 1184, § 21, p. 1591; Jim v. State, 3 Mo. 147; Gates v. State, 20 Mo. 400.)
    II. The testimony with respect to the slung-shot was admissible in evidence. (Eosc. C. Ev. 17; Fanny v. State, 14 Mo. 390; People v. Eatliburn, 21 Wend. 509; 11 Georg. 123; Whart. C. L. 332.) The instructions on the subject of self-defence were proper. (Eosc. Crim. Ev. 589 ; 1 Euss. on Crimes, 669 ; Whart. Horn. 219 ; 2 Com. 484; 12 Gratt. 730 ; 17 Georg. 484; 4 Dev. & Batt. 491.) The instruction complained of received the sanction of this court in State v. Shoultz, 25 Mo. 153.
   Napton, Judge,

delivered the opinion of the court.

The first point taken in this case is, that the circuit court of St. Louis had no jurisdiction; that the change of venue ordered by the criminal court was contrary to the express terms of the act which regulates changes of venue in this county. The act in relation to changes of venue from the criminal court of St. Louis county declares that “ no change of venue shall hereafter be allowed from the St. Louis criminal court except in the mode pointed out in the succeeding section of that act.” The next section provides that “ any party desiring a change of venue from said criminal court on account of any of the causes provided by law, shall present his petition to the judge of the St. Louis court of common pleas, in writing, verified by affidavit,” &c. (E. C. 1855, p. 1591.) The change of venue in this case was not made upon the application of either party, the State or the defendant ; but was made by the judge upon his own motion, for the reason that he had been counsel for the prisoner. The forty-first section of the general act concerning courts (E. 0. 1855, p. 539) declares that “ no judge or justice of any court shall sit on the trial of any cause or proceeding in which he is interested, or related to either party, or shall have been of counsel; but it shall be the duty of the judge to try said cause or proceeding by the consent of both parties thereto.” The sixteenth section of the fifth article of the practice act in criminal cases provides that, where the circuit judge has been counsel in a criminal case, the case shall be removed by the order of the court or judge to another circuit. The twenty-first section provides, that whenever it shall be within the knowledge of a court that facts exist which would entitle the defendant, on his application, to have the cause removed, the court may make the order without any application. The forty-first section of this act provides that sections sixteen, seventeen and eighteen shall not apply to St. Louis county, but that changes of venue shall in that court be governed by the special law. The special act regulating changes of venue in St. Louis county is, in our opinion, confined to such changes of venue as are made upon the application of the defendant, and was not designed to affect the right or duty of the criminal court to order a change where the judge of that court had been of counsel. The language of the second section of the act, as well as as its manifest intent, concur in establishing this interpretation. The sixteenth section of the general practice act in criminal cases recognizes the impropriety of allowing a judge to try a criminal cause in which he has acted as counsel, and makes provision for the removal of such cases arising anywhere throughout the state except in St. Louis county. This county was expressly excepted from its operation, manifestly for the reason that all original jurisdiction over criminal causes was-taken from the circuit court of this county and transferred to a special tribunal. The provision was therefore inapplicable to St. Louis county, had there been no express words of exception in the act. It was probably through mere inadvertence that the special act regulating changes of venue in St. Louis county omitted any provision of the character contained in the sixteenth section of the general act, but the effect of that omission is only to throw the criminal court here upon the general provision contained in the act regulating courts, which we have referred to above, which, taken in connection with the twenty-first section of the criminal practice act and with the fifteenth section of the act which establishes the court (E,. C. p. 1590) authorized that court to send the case to the circuit court of St. Louis. We are therefore of opinion that the circuit court had jurisdiction to try this case.

The instructions upon the trial explanatory of the nature of the circumstantial evidence and of homicide in self-de-fence were objected to on the trial, and it is now insisted that the instruction relative to homicide se defendiendo was erroneous, and that the one concerning circumstantial evidence was not sufficiently explicit and full, and should have been accompanied with the instruction asked on that point by the defence.

The court instructed the jury that in order to convict the defendant upon circumstantial evidence alone, “ the circumstances tending to show his guilt should be established beyond a rational doubt by the evidence in the cause, and, when established, should point so strongly to the guilt of defendant as to exclude every other reasonable hypothesis.” On behalf of the defendant the additional instruction was asked, “ that all the facts established in evidence should be consistent with the idea of the guilt of the defendant.” It is not perceived that there is any material difference between the instruction given by the court and the one asked by the defendant. If all the established fact| are utterly inconsistent with the defendant’s innocence, they must necessarily support the hypothesis of his guilt. If any one fact is found to be irreconcilable with the supposition of the defendant’s guilt, it is impossible that all the facts should exclude the possibility of his innocence. The form in which the instruction is put by the court seems to be more directly pointed to the difficulties of the case, and better adapted to put the jury on their guard against a hasty or unwarranted conclusion unfavorable to the defendant than the one desired by the defence; for it does not appear that there was any one particular, and prominent fact among the circumstances of the case which was supposed to be ■ entirely inconsistent with the hypothesis of the defendant’s guilt. There are cases in which a controverted fact of this character presents itself, and in which the attention of the jury ought to be called to the rule of evidence which was asked in this case; but there was nothing of the kind in the testimony given on this trial, and the court expounded the law applicable to the case as favorably to the defendant as it would have been if given in the words and form desired, telling the jury that if they could reconcile all the facts proved to them with any other hypothesis whatever than that of the defendant’s guilt, they must acquit him.

In relation to the instruction concerning homicide in self-defence, it is sufficient to say that it was a mere abstraction, and any explanation of this branch of the law might, without error, have been omitted. There was no evidence on the subject, and, proceeding upon mere inferential reasoning on the facts in evidence, there was hardly any room for a rational conjecture that the case was one of self-defence. There was no eye-witness to the homicide, but the body of the deceased was found with six wounds from a knife in his left side and two in his right side, and with his throat cut to the bone, or, as one witness expresses it, “ from ear to ear.” No weapon of any kind was found upon or near the person of the deceased, and it was not the interest of the person who committed the homicide, or of the witness who first saw the body after the homicide, to have removed such a weapon, if any had been there. The defendant had been seen early the ensuing day a few miles from the place of the homicide, apparently unhurt, with no external marks of violence upon him, and making his escape with secrecy and celerity. These facts could not consist with the supposition of self-defence. The instruction concerning self-defence given by the court in this case seems to be in substance and almost in terms the same which was given in the case of Shoultz, 25 Mo. 158, in which latter case it seems quite as inapplicable as it was in this. The instruction in either case could have had no influence on the verdict, and we therefore deem it unnecessary to express any opinion of its propriety as an abstract proposition of law.

The refusal of the court to give the first instruction asked by tbe defendant is also assigned for error. That instruction is as follows: “ The jury are instructed that the statement made by Mrs. French, that she gave the shirt found upon the loom to Robert Houser, is not any legal evidence that the shirt belonged to defendant.” That the acts and words of one person are no evidence against another, unless some complicity is established between them, is a truism in the law of evidence; and if this was the proposition designed to be asserted in the instruction, it might with propriety have been given. The examination of the witness (Mrs. French) in relation to the shirt found in the room where the homicide was committed, was directed to the identification of the shirt as the one worn by the defendant on the. day when the disturbances occurred at Luster’s. The witness was a relative of the defendant, and at her house the homicide occurred. She stated, upon her examination, that Robert Houser, the brother of the defendant, applied to her for the shirt, saying that if it was his brother’s shirt he wanted it. She (witness) stated that she told Robert Houser that, in her opinion, it was not his brother’s shirt, and she further stated that Robert Houser also said he did not think that the shirt was his brother’s; but the witness, upon this application, gave up the shirt to Robert Houser. This witness was competent to identify the shirt, and it became material to ascertain what her opinion was on that subject. She said her opinion was that the shirt did not belong to the defendant, although, in her opinion, it resembled the defendant’s shirts more than those of her brother, and although one of the sleeves was torn and in that respect corresponded with the defendant’s, whose shirt sleeve had, according to other testimony, been torn in a scuffle at Luster’s on the day of the homicide. Although the witnesses expressed the opinion that the shirt was not the defendant’s, the fact she testified to was that she gave the shirt to the defendant’s brother, who applied to her for it as the defendant’s shirt. The testimony is admitted to be competent to account for the nonproduction of the shirt by the State. We think it was always competent to show the real opinion of the witness on the question of identity and ownership. That belief it was the province of the jury to ascertain not only from the witness’ words but from her acts. The instruction therefore, in the form asked, was rightly refused. It may be observed, in this connection, that the principal if not the only importance, which could attach to the testimony touching the identity of the shirt, was to establish the defendant’s presence at the time and place of the homicide. Of this fact there was abundant other testimony of a circumstantial character, corroborated by the acknowledgments of the defendant, which, upon the most favorable interpretation, must be understood as explicit admissions of this fact.

The evidence, admitted, that the prisoner, whilst passing from the jail on a former trial, was found in possession of a slung-shot, is also objected to as incompetent. Flight, openly or secretly, following immediately on the commission of an act, has always been regarded as legitimate proof of guilt. Escapes, or attempts to escape, after incarceration, are not entitled to the same weight, and may be perfectly consistent with innocence. Eut all these circumstances have been considered as facts proper for the consideration of the jury. In Fanning’s case, 14 Mo. 390, it was decided that the State could prove attempts of the prisoner to escape, three years after the alleged commission of the offence, with a false key. If a slung-shot is used for this purpose, that fact is equally important with the possession of a false key. Whether the slung-shot was made and concealed with a view to effect an escape, or for defensive or offensive purposes in combats occurring in the place of confinement, was a matter for the jury. There was testimony in this case on this point and the circumstance was open to comment.

All the judges concurring, the motion to stay execution is overruled.

Scott, Judge.

It would have been no error had the court

given the instruction in relation to the prisoner’s brother taking away the shirt found at the house where the homicide was committed. But as the instruction was made to assume the aspect of a comment on the evidence — that one fact did not warrant the inference of the existence of another — and as the instruction asked was a truism about which men competent to serve on a-jury could not be deceived nor misled, its refusal could not have prejudiced the prisoner. The refusal of the instruction amounted to no direction that the taking away of the shirt by his brother was evidence against the prisoner.

As to the evidence in relation to the slung-shot, it may be remarked that, although evidence may be admitted which might have been excluded, yet, if the evidence upon the whole did not prejudice the cause against which it was received in the opinion of this court, it will not reverse the judgment. I am not prepared to say that, under all the circumstances, the prisoner was prejudiced by the admission of this evidence.


text:
    The State, Respondent, v. Peters et al., Appellants.
    1. When a slave is cruelly or inhumanly abused by a person who does not have such slave in his employment or under his charge, power or control, resort can not he had, in the punishment of such an offence, to an indictment founded on the forty-eighth section of the eighth article of the act concerning crimes and punishments. (E. C. 1855, p. 634.)

      Appeal from St. Louis Criminal Court.

    The facts sufficiently appear in the opinion of the court.

      Kribben, for appellants.

      Mauro, (circuit attorney,) and Carroll, for the State.
   Scott, Judge,

delivered the opinion of the court.

This indictment is founded on the forty-eighth section of the eighth article of the act concerning crimes and their punishments, which enacts that every person who shall cruelly or inhumanly torture, beat, wound or abuse any slave in Ms employment or under bis charge, power or control, whether belonging to ‘himself or another, shall, on conviction, be punished by imprisonment in the county jail not exceeding one year, or by fine not exceeding one thousand dollars, or by both such fine and imprisonment. The indictment charges that Lewis Peters, Mary Peters and John Peters, on the 12th September, 1857, in St. Louis county, a certain slave, the property of and in the employment of the said Lewis Peters, with a goad and whip, which they, the said Lewis Peters, Mary Peters and John Peters, then and there in their right hand had and held, the said slave aforesaid then and there did cruelly and inhumanly torture, beat and abuse. A nolle prosequi was entered as to Lewis Peters, and Emily and Ludwig Peters were convicted and fined and imprisoned.

The law above cited was enacted in pursuance to a provision of our state constitution, which enjoined it as a duty on the general assembly to pass such laws as may be necessary to oblige the owners of slaves to treat them with humanity and to abstain from all injuries to them extending to life or limb. As the constitution and law recognized the relation of master and slave, the law was intended to prevent abuses of that relation, and hence those only are punished who inhumanly abuse a slave who is their property or in their employment. When slaves are cruelly used by those who do not bear to them the relation of master or quasi master, such offences stand on the same ground as when white pei'sons cruelly use each other.

The slave alleged to be cruelly abused is charged in the indictment to have been the property of and in the employment of Lewis Peters. Now Lewis Peters was discharged from the prosecution. Then, as the slave was not alleged to have been the property of or in the employment of the other persons indicted, they could not be convicted under the indictment, as it did not appear that they had abused the relation of master and slave. Their offence was the same as if it had been committed on any other persons. It is needless to inquire whether they might not have been accessories. In misdemeanors, all who assist in committing an offence are principals; and the indictment shows that they could not be principals, as they did not bear the relation of master to the slave. If they could have been charged as accessories, the indictment fails to do it. Nor is it necessary to inquire whether a wife may be indicted for cruelly abusing a slave belonging to or in the employment of her husband, as it does not appear from the indictment that Emilie Peters was the wife of Lewis Peters.

It will not be required of us, in this view of the case, to determine whether the indictment on its face does not show that the offence could not have been committed, as it is not easy for three to hold a whip and goad and seriously injure another, or whether there may be a “ right hand” common to three people. Judgment reversed.


author: Naptok, Judge,

text:
    Steamboat Keystone, Respondent, v. Moies et al., Appellants.
    1. If a consignee refuse to receive the goods consigned to him, it is the duty of the carrier to take such steps in relation to the goods as will advance the owner’s interest and purposes consistently with a reasonable security to himself for his freight and charges; what he ought to do in a given case will depend upon circumstances; if, acting as agent for the owners, he pursues such course as men of ordinary prudence would follow, he will be protected by the law whatever may be the result.
    2. A custom among steamboat carriers to return goods to the shipper if the consignee should refuse to receive them, and to charge freight upon the return trip as well as upon the out-going trip, would seem to be unreasonable if applied to all kinds and qualities of goods shipped.

      Appeal from St. Louis Law Commissioner's Court.

    This was an action to recover in behalf of the steamboat Keystone freight and charges upon certain iron castings shipped by the defendants at St. Louis and consigned to Eldridge Bro. & Co., at Wyandott, Kansas territory. It was in evidence that the consignees refused to receive the castings at Wyandott. The boat brought them back to St. Louis. The plaintiff claimed seventy-two dollars freight to Wyandott, seventy-two dollars freight from Wyandott back to St. Louis, and six dollars charges. On the trial the plaintiff introduced two witnesses, who testified that the custom on the Missouri river is to deliver the freight according to the bill of lading, and, when the consignees refuse to receive it and pay charges, to bring it back and notify the shipper and charge the freight also on the back trip. The court gave the following among. other instructions : “ 1. Wherever there is a uniform usage or custom in a particular trade, parties are presumed to contract in reference thereto, and in such case the usage or custom is understood to form a part of the contract unless'it. is expressly excluded by them, or unless it be inconsistent with the terms of their agreement.” "
    The jury found for the plaintiff the sum of one hundred and fifty dollars.

      Smith 8f Sedgwick, for appellants.
    I. The custom attempted to be proved was unreasonable.

      A. M. Sf S. H. Gardner, for respondent.
    I. The custom proved was reasonable and not at all inconsistent with the terms of the contract.
   Naptok, Judge,

delivered the opinion of the court.

The custom of returning goods to the place of shipment, where the consignee at the place of delivery has refused to receive them, may be a very reasonable one when the freight is very small in proportion to the value of the goods. In such cases the consignor would probably prefer that the boat should bring them back, and a custom to this effect, as it would be entirely consistent with the consignor’s interest, would only show that the carrier, in acting as the agent of the consignor, had discharged his duty and acted as the corn signor himself would have done if he had been in a position to be consulted. But where the goods are of a perishable nature, or where the freight constitutes a large proportion of their value at the place of consignment, such a custom would hardly obtain and would certainly be very burdensome to shippers. If a cargo of West India fruit is brought up from New Orleans and the consignee here refuses to receive it, would the canier be justified in taking it back to New Orleans, at the hazard of losing it entirely and with a certainty that it would be worth greatly less there than here? If a cargo of salt or iron is shipped from here to a point high up the Missouri, shall the boat, in the event that the consignor refuses to receive it, bring it back to St. Louis, where the freight up and down will exceed the full value of iron or salt here ? Such a custom, if it exists, would seem to be unreasonable, and could not therefore be acquiesced in by shippers, since it could be productive of no benefit to them. There is nQ doubt that the boat has a lien on the goods for its freight and is not bound to deliver them up to the consignee until the freight is paid. (3 Kent, 220; The Schooner Volunteer, 1 Sumn. 551; Abbott on Shipping, 37.) If the consignee refuses to receive the goods, the carrier may deposit them at the place of delivery in a warehouse, with directions to be delivered to the owner upon payment of charges. (Fisk v. Newton, 1 Denio,-; Magill v. Potter, 2 John. Ca. 371.) In England the practice is to send such goods as are not required to be landed at any particular dock to a public wharf, and order the wharfinger not to part with them until the freight and other charges are paid. (Abbott on Shipping, 378.)

The principle upon which the carrier’s duty is based, in the event of a refusal of the consignee to receive the goods, is simply to regard himself as an agent for the owners, and as such invested with authority to take such steps in relation to the goods as will advance the owner’s interest and purposes consistently with a reasonable security to himself for his freight and charges. What he ought to do in a given case will manifestly depend upon the circumstances, and there can be and ought to be no universal rule in course to bo followed in all cases. If, acting as agent for the owners, he pursues such course as men of ordinary prudence would follow, he is protected by the law, whatever may be the result. In the case of Arthur v. The Schooner Cassius, 1 Story C. C. 97, Judge Story considered it the duty of the master to land the freight at the port of destination, and, if the consignees refused to receive it, “to place it in the hands of some trustworthy person for the security of his lien for freight, and subject thereto for the benefit and account of the owners.” “ No right,” he adds, “ even under such circumstances, could exist on the part of the master to sell the cargo unless it was perishable and might otherwise have been lost or have perished.” If there is no warehouse or no responsible or trustworthy person at the place of consignment, as may happen at some landings on our rivers, the carrier would certainly not be authorized to leave them on the shore exposed to injuries by the weather or by depredations. (Ostrander v. Brown, 15 Johns. 39.) In such an event, he is thrown upon the rule to which we have already adverted, of taking such course as will secure his freight, and at the same time advance, as far as ordinary prudence can foresee, the interest of the shipper; and it is quite manifest that if the master lands the goods at the nearest or most convenient port above or below the point of consignment, where warehouses and responsible agents may be found, and apprizes the owners of what has been done, he has discharged his duty, and will not be held responsible for losses, if any should happen. This would undoubtedly be the law, where the cost of transportation entered very largely into the value of the goods at the place of their destination, and where, as a matter of course, the pi’operty would be more valuable to the owner at that place than at the place from which they were shipped. If the goods consisted of a package of jewels or of a box of costly articles, whose value was great in proportion to the cost of transportation, it might- reasonably be inferred that the refusal of the particular consignee to whom they were forwarded to receive them would justify and perhaps require the carrier to return them to the consignor. Such course would be justified on the same principle which would authorize the carrier to leave goods of another description in a warehouse at the port of destination or the port nearest thereto where warehouses could be found. In both cases it is consulting the apparent interest of the owners and at the same time securing the claim of the carrier for his freight.

We shall send the case back to be tried on these principles. The verdict was rendered under an instruction confining the jury to the mere question of a custom, about which the evidence was very slight and unsatisfactory. The - steamboat masters, who were examined, spoke of a general practice of returning freight to the owners here where the consignees refused to receive it, but did not explain the character of the goods so returned and received and paid for. They may have been misled by one or two incidents falling under their observation, and supposed that a case here and there, perhaps perfectly consistent with our understanding of the law, constituted a custom universally applicable under all circumstances. We doubt the existence of a custom so totally destructive of |he interests of shippers as was imagined to be established in this case. With the concurrence of all the judges, the case is remanded.


text:
    Annis, Appellant, Bigney et al., Respondents.
    1. The St. Louis law'commissioner’s court has jurisdiction of an action for the possession of specific personal property.in which the value of the property claimed is alleged to be one hundred and fifty dollars and the damages claimed for the detention are fifty dollars ; it is the value of the property claimed that determines the jurisdiction.

      Appeal from, St. Louis Law Commissioner’s Court.

      Bland 8p Coleman, for appellant.

      A. M. 4* S. H. Gardner and Huffman, for respondents.
   Napton, Judge,

delivered tlie opinion of the court.

This was a suit before the law commissioner, in the nature of an action of replevin, and the property claimed was alleged to be of the value of one hundred and fifty dollars and the damages claimed were fifty dollars. On demurrer the court held the amount claimed exceeded the jurisdiction of the court. The statute gives the court jurisdiction where the value of the property claimed does not exceed one hundred and fifty dollars. (R. 0.1855, p. 1597.) The law regulating the action gives the damages for the detention of the property. It is the value of the property claimed which regulates the jurisdiction and not the damages, which are a mere incident, like interest to a debt. The other judges concur; judgment reversed and remanded.


text:
    Steamboat City of Memphis, Respondent, v. Matthews et al., Appellants.
    1. The supreme court ■will not grant new trials on the ground that verdicts are against the weight of evidence; it is the province of the jury to attach such credit to the testimony of witnesses as they may think it entitled to.

      Appeal from St. Louis Circuit Court.

      Hamilton for appellants.
   Napton, Judge,

delivered the opinion of the court.

This case falls within the principle decided by this court in McAfee v. Ryan, 11 Mo. 365. The instructions were not excepted to, and indeed are admitted to bo a correct exposition of the law applicable to the facts in evidence. All the testimony was on one side, but the jury disregarded it, and the circuit court, who heard the witnesses, sanctioned the verdict of the jury. We must infer from this that the circuit court was satisfied with the course of the jury. The credit due to witnesses is a matter peculiarly for a jury, and any control over tbe finding of a jury in this respect could bardly be judiciously exercised by this court, which, possesses no means of forming a correct opinion, and must be guided altogether by what appears on the face of the record. The circuit judge would not of course permit a verdict to stand against his own instructions, and as that court has virtually certified to us that the verdict was right we can not interfere. The cases of the State v. Packwood, 26 Mo. 340, and Phillips v. Riley, 27 Mo. 386, stand upon different principles. The other judges concurring, the judgment is affirmed.


text:
    Kelly, Plaintiff in Error, v. Johnson et al., Defendants in Error.
    1. A resulting trust arises by operation of law where the purchase money of real estate is paid by one person and the legal title is transferred to another. The relation of trustee and cestui que trust in such cases must result from the facts as they exist at the time of or anterior to the purchase, and can not be created by subsequent occurrences.
    2. It is not essential to the creation of a resulting trust that the money advanced should come directly from the cestui que trust; it is sufficient if it satisfactorily appear that the person supplying it intends it as a gift or loan ' to such cestui que trust.

      Error to St. Louis Land Court.

    This was an action commenced September 17,1856, against Benjamin Johnson and Prances A. Graham. The petition set forth that in March, 1853, Johnson purchased and took to himself a conveyance of an undivided half of certain real estate; that he held it in trust for himself and one Robert Graham equally; that Graham had furnished one-half the purchase money under an understanding that they should be tenants in common of said interest in said land although the conveyance was made to Johnson alone; that Graham died about August 1,1855, having first devised his interest in this land to Jane Kelly, plaintiff; that Johnson refused to convey the interest so devised to Jane Kelly ; that Frances A. Graham, widow of Robert Graham, claims to be the owner of the interest devised to Jane Kelly. The petition prayed that Johnson might be compelled to convey the undivided half of said land to said Jane Kelly.
    The answer of the defendants set up that before the commencement of this suit Johnson had conveyed the said undivided half of the land purchased by him to the defendant Frances A. Graham; that Johnson made the cash payment on account of said purchase, and gave his notes secured by by deed of trust for the balance; that afterwards Robert Graham advanced money to take up these notes (amounting to one-half the purchase money) under the verbal understanding and agreement that he (Johnson) should hold the one-half interest aforesaid in trust for the sole and separate use and benefit of said Frances A. Graham; that Johnson accepted the trust, and continued to hold said interest subject to it until he conveyed the trust property to the cestui que trust, Mrs. Graham.
    The consideration of the conveyance to Johnson was one thousand two hundred dollars. Robert Graham, by will, devised his interest in the land in controversy to the plaintiff, Mrs. Jane Kelly, his sister. Declarations of both Johnson and Graham, to the effect that they owned the land together and were jointly interested in it, were introduced in evidence. The defendants offered a deed dated April 3, 1856, from Johnson to Mrs. Graham conveying to her the undivided interest of one-fourth, recited therein to have been held in trust for Mrs. Graham. This deed was delivered April 5, 1856, but was not recorded until October, 1856. Plaintiff had no notice of it until its record. At the instance of the defendants the law was declared as follows: “ If the deed from Benjamin Johnson to Frances A. Graham, read in evidence, is genuine, the plaintiffs are not entitled to the relief prayed in their petition.” The plaintiffs thereupon suffered a voluntary nonsuit, with leave, &c. The husband of Mrs. Kelly died pending the suit, and it was continued in her name.

      Gantt, for plaintiff in error.
    I. The deed from Johnson to Mrs. Graham cuts no figure in the case at all. It was not known to the plaintiff before the commencement of this suit. On his own showing the interest retained by Johnson was abundantly sufficient to support a decree for a conveyance prayed for by the plaintiff. The case of Brueggeman v. Jurgensen, 24 Mo. 87, is not applicable. Even if Johnson had retained no interest in the land, the doctrine of that case would not be applicable. Both parties interested are before the court. Mrs. Graham is a volunteer, and not a bona fide purchaser for value. Graham had a resulting trust in the land which he disposed of to his sister. The answer seeks to set up a different trust, but there is no evidence to suport it. Graham had no such understanding.

      Krum Sf Harding, for defendants in error.
    I. The relief prayed for can not be granted. (Bruegge-man v. Jurgensen, 24 Mo. 87.) It makes no difference that Mrs. Graham is a party to this suit. No relief is prayed against her. She is not nor is Johnson charged with any fraudulent conduct. The plaintiffs, by their testimony, made out no case which would authorize the court to grant the relief prayed for. They áre forced to rely on the admissions of the answer. These admissions must be taken as a whole. They show that there was no resulting trust in favor of Robert Graham. Graham advanced no money until after the purchase. (Hill on Trustees, 97.)
   Napton, Judge,

delivered the opinion of the court.

A resulting trust arises by operation of law, where the purchase money of an estate is paid by one and the legal title is made in another. In such case the person named in the conveyance is regarded as a trustee for the party from whom the consideration proceeds. This doctrine is based upon the common law principle that a feoffment without consideration results to the use of the feoffor. But the relation of trustee and cestui que trust in such cases must result from the facts which occur at the time of or anterior to the purchase, and can not be created by subsequent occurrences. Hence where an agent is employed to purchase a tract of land and the purchase is made and the title taken in the name of the agent, and no part of the purchase money is paid by the principal at the time of or previous to the purchase, the trust is within the statute of frauds and can not therefore be enforced if its existence is denied by the agent. (Hill on Trustees, 97 and cases cited.) Where a trustee purchases in the name of a third person with trust funds, the resulting trust, it has been held, will not be to himself but to his cestui que trust. (Russell v. Allen, 10 Paige, 249.) So it has been held that it is not essential to a resulting trust that the money advanced should come directly from the cestui que trust, if it satisfactorily appears that the person who supplied it intended it as a gift or loan to such cestui que trust. (Page v. Page, 8 N. H. 187; Gower v. Tradesman’s Bank, 4 Sand. 106; Boyd v. Maclean, 1 John. Ch. 582.)

The answer in this case alleges that Johnson (one of the defendants) made the payment of one-half of said purchase money out of his own means, and gave his notes, secured by a deed of trust on the property, for the unpaid balance; “ that at the maturity of said notes, he paid and discharged them with money which said Graham advanced and paid to him under the express and distinct verbal Tinderstanding and agreement that he, said Johnson, should thenceforth hold said one-half of the interest in said land which he had purchased in trust for the sole and separate use and benefit of his defendant Prances A. Graham, then the wife and now the widow of said Robert Graham,” &c. This answer admits a trust as to one-half of the land, but seems designed to raise a resulting trust in Mrs. Graham, and not in her husband. It is not stated in so many words that the money advanced by Graham was money belonging to the wife, nor that Graham designed it or treated it as a gift to his wife ; but it was probably intended so to be inferred that the money was a gift to the separate use of tlie wife, and, consequently, that the use of the land would result to her and not to the husband. It is evident that if the money advanced by Graham was not either the separate property of the wife or a gift to the wife, the resulting trust would be to the husband, and a parol declaration changing the direction which the implication of law would give it, if valid at all, could- at all events be revoked by similar ones at a subsequent period. If' the deed had been made in the name of the party intended to be benefited by it, this would not be so, for then a subsequent change of intention could not have the effect of altering the nature of the transaction so as to convert the donee into a trustee for vol unteers subsequently claiming under him. (Birch v. Blagrove, Ambl. 266.) But even in such cases, a subsequent disposition of the property by will would raise the case of an election against the donee if the donee claimed any benefit under the will. (Cecil v. Butcher, 2 Jac. & Walk. 578 ; Dummer v. Pilcher, 2 Mylne & Keen, 262.)

It will be seen from the bill of exceptions in this case that none of the questions we have here briefly alluded to, and which we suppose must ultimately determine the merits of this suit, were decided in the land court. The case went off on an instruction that the deed from Johnson to Mrs. Graham, if genuine, was an end of the controversy so far as the relief asked for in the petition was concerned, and precluded the necessity, we suppose, of investigating the effect of the will and the alleged trust. As Mrs. Graham and Johnson were both parties to the suit, and the former was a mere volunteer, we do not see what obstacle the deed could form to an equitable decree settling the rights of the parties and placing the title wherever the testimony and law might warrant. In the present position of the case, it is impossible for us to express any opinion decisive of the merits. Not regarding the deed from Johnson however as a bar to the relief sought, we will reverse the judgment and remand the case for a new hearing in the land court. Judgment reversed and remanded ;

the other judges concur.