author: ROY, C. PER CURIAM.

text:
    DULCE REALTY COMPANY v. STAED REALTY COMPANY, Appellant.
    Division Two,
    November 13, 1912.
    1. EASEMENT: Private Alley: Created by Deeds in Partition. Deeds by cotenants in partition of land in a city block designating a certain plot of ground as a private alley left by all concerned, create an easement in the alley which passes in after conveyances with the estates to which it is appurtenant as long as the estates subsist as distinct estates in different proprietors.
    2. -: -: Estate of Abutting Proprietor. In the absence of evidence to the contrary it will be presumed that the owners of property abutting on a private way hold the fge to the center of the way.
    3. -: -: Acquired By Deed: Not Lost by Nonuser. An easement acquired by deed cannot be lost by mere nonuser.
    4. -: -: -: -: Evidence. lilis is a suit to enjoin the construction of a building on an alleged private alley and to compel the removal of one already erected. The defendants, who own land abutting on the west, had notice from their deeds that the strip in question was a private alley, and it was open, when they took possession of their land in 1891, as a five-foot space between two-story brick buildings. In 1892 the strip was closed by the erection of a frame structure, the rent for which was collected and paid to the defendants, according to testimony for defendant, by a tenant and agent of an earlier owner of the land upon the east now owned by plaintiff. Immediately following 1892 the west part of the alley was assessed to the defendants; not all of it, however, until 1900, yet they have executed various deeds in which the strip in question is called a private alley. Before judgment herein they had begun the erection of a brick building covering a portion of the strip. Held, that the beginning of the possession was hy permission of a former owner in plaintiff’s chain of title and that such possession was not under any .adverse claim of right. N.o possession can result in title by limitation unless the same is under a claim of right or color of title. The injunction is allowed and the removal of the structures is ordered.
    Appeal from St. Louis City Circuit Court. — Hon. Moses N. Sale, Judge.

      AkI'IB.MED.

      Dmiel Dillon for appellant.
    (1) Open, notorious, adverse and continuous possession of land for ten years confers title on the person holding such possession. This has been decided so often by this court, and has become, so well recognized as a rule of law in this State, that a citation of cases is unnecessary. Fugate v. Pierce, 49 Mo. 441; Bradley v. West, 60 Mo. 40; Scanned. v. Soda Fountain Co., 161 Mo. 618; Franklin v. Cunningham, 187 Mo. 195; Brewing Co. v. Payne, 197 Mo. 422; Adam v. Gossom, 228 Mo. 578; Long v. Coal & I. Co., 233 Mo. 740. On February 11, 1891, the Staeds; on the same day they received a deed for the eighty-four feet fronting on Chestnut street, received, also, from the same grantors, a quitclaim deed to the five-foot strip fronting on Chestnut street and extending south thirty-one feet. This'gave them at least color of title to the five-foot, strip for.the length or depth of thirty-one feet extending southward from Chestnut street. Even without any color of title at all, open, notorious and adverse continuous possession for ten years gives title to the land actually occupied. Cottle v. Sydnor, 10 Mo. 770; St. Louis v. Gorman, 29 Mo. 593;'De Gráw v. Taylor, 37 Mo. 310; Mather v. Waltz, 107 Mo. 121; Wilkerson v. Eilers, 114 Mo. 253; Goldterman v. Schiermeyer, 111 Mo. 404; Quick v. Bufe, 164 Mo. 412. (2) The period fixed by the Statute of Limitations for the bringing of action for the recovery of real property applies to easements in land in like manner as to the land itself. Jones on Easements, Secs. 866 and 867; Wimer v. Simmons, 27 Ore. 3; Woodruff v. Paddock, 130 N. Y. 618; Galveston v. Williams, 69 Tex. 454; Boyce v. Railroad, 168 Mo. 591; Pittsman v. Boyce, 111 Mo. 392; Power v. Dean, 112 Mo. App. 297; House v, Montgomery, Í9 Mo. App. 179; Autenrieth. v. Railroad, 36 Mo. App. 254. (3) If some former owner of the land now owned by plaintiff was at one time entitled to an easement, entitling him to the nse of the five feet in question as an alley, that easement was abandoned and extinguished long before plaintiff became the owner of the property. Scanned. v. Soda Fountain Co., 161 Mo. 620. Twenty years was the period within which actions for the recovery of real property were required to be brought in those jurisdictions, where the court held that an adverse user for twenty years would extinguish an easement. In this State, as this court well knows, the period of limitation for bringing such actions is ten years.

      Richard A, Jones for respondent.
    (1) (a) The private alley so established, created an easement by express grant for such purposes. Church v. Kellar, 39 Mo. App. 441; Carlin v. Paul, '11 Mo. 32; Moses v. Dock Co., 84 Mo. 244; Parker v. Smith, 17 Mass. 411; Dill v. Board, 10 L. R. A. 276. (b) The creation of such alley gave to adjoining lots two distinct classes of rights; first, its use for purposes of ingress and egress, and, second, for light, air and ventilation. Dill v. Board, 10 L. R. A. 276; Gaus v. Railroad, 113 Mo. 308; Bloom v. Koch, 63 N. J. Eq. 10; Field v. Barling, 24 L. R. A. 406; Arnett'v. Johnson, 15 N. J. Eq. 482; DeGeofroy v. Railroad, 179 Mo. 698; Barbour v. Liddy, 49 Fed. 896. (c) This easement by grant is a property right, as much as the ownership of the soil itself, and one of which the owner can only be deprived by like character of instrument or by such adverse possession for the statutory period, with all the accompanying elements necessary, not only to create title in the fee of the real estate itself, but also adverse as against the exercise of the various rights included in the easement. Nohuser for the statutory or any other length of time does not in any manner affect such, easement any more than would nonnser of any other character of real estate. Dill v. Board, 10 L. R. A. 276; Structural Co. v. Distilling Co., 189 Mass. 145; Hofher v. Mede, 226 111. 320; Johnson v.’Clark, 22 Ky. Law R. 418; Dwire v. Hawley, 79 Conn. 454. (2) (a) Lying at the foundation of the claim .of title by limitation is the one all-controlling fact that the possession relied on must be adverse, — hostile, and continuously so, for ten years. The possession from end to end, in warp and woof, must be hostile and continuously hostile. And this is so because the law presumes every possession as consistent with the true title and ownership. McCune v. Groodwillie, 204 Mo. 306; Ileckescher v. Cooper, 203 Mo. 278; Dameron v. Jamison, 143 Mo. 483. (c) Various deeds of conveyance were executed by defendant during the time it claims the alley was held by it by a possession adverse, which conclusively negative any such quality of possession. One of these deeds was executed October 24, 1894, another April 8, 1901 and' still another May 6, 1907, some three months prior to the commencement of this proceeding. Also deeds executed to defendant and by its predecessors in title of like character. In all of these deeds, the property of defendant is' described as extending on the east to this private alley and indeed in the three first mentioned, the very width of the alley is given. The east bounds of the property, 125 feet east of the east line of Ninth street, the west boundary of the alley, also corresponds with the description of it contained in the deeds by which it was originally established. Mere oral testimony of statements made by a party in possession of real estate is competent to destroy the adverse character of the occupancy; much more is such evidence of value for such purposes when embodied in the solemn act of executing an instrument of conveyance of realty. Indeed, in such case it is conclusive proof of acknowledgment that the holding is not adverse, a disclaimer which may not be denied. Lajoye v. Primm, 3 Mo. 529; Whyte v. St. Louis, 153 Mo. 80; Anthony v. Building Co., 188 Mo. 704; Devoe v. Smeltzer, 86 Iowa, 391; Lamb v. Foss, 21 Me. 240; Heard v. Conner, 84 S. W. 605; Whitaker v. Thayer, 38 Tex.' Civ. App. 537; Tomlinson v. Lynch, 32 Mo. 160; Milling Co. v. Riley, 133 Mo. 574; Hull v. Railroad, 21 Neb. 371; Baker v. Henderson, 156 Mo. 566. (3) (a) The frame structure over a portion of the alley was unlawfully erected and maintained and so ipso facto constituted a public nuisance. Railroad v. Kirkwood, 159 Mo. 239; Boom Co. v. Dickson, 77 Miss. 587. (b) Being such nuisance no matter how long continued, no prescriptive right could be acquired to maintain it. It was subject to abatement at any time. State ex reí. v. Vandalia, 119 Mo. App. 426; Kissel v. Lewis, 156 Ind. 233; Hynes v. Brewer, 194 Mass. 435; Isham v. Brodericks, 89 Minn. 397. (4) The quitclaim deed from Caroline Ryan, of date February 11, 1891, in which she- quitclaimed her interest in “a parcel of land known as a private alley” does not contain anything inconsistent with the easement for alley purposes. This instrument would not constitute even such color of title as against such easement as would cause an occupancy of part to relate to the whole thirty-one feet, the purpose for which defendant claims it was offered in evidence. Crispen v. Hannaven, 50 Mo. 536; Hunter v. Wethington, 205 Mo. 293; Busch v. Houston, 75 111. 343.
   ROY, C.

— This is a proceeding in the circuit court of the city of St. Louis to enjoin the construction of a building on an alleged private alley, and to compel the removal of one already constructed.

Pending the suit and before the trial the building in contemplation by the defendant at the beginning of the suit was constructed.

There was a decree for plaintiff requiring the demolition of both structures, and restraining any future obstructions to the alley. Defendant has appealed.

The land in- controversy is located in city block 190, bounded north by Chestnut street between Eighth and Ninth streets.

• In 1854 the Lucas heirs were the owners of all the property abutting on the alleged alley. In that year they made partition by deeds to each one of'them for separate parcels of the land. In all those deeds the land included in the alleged alley' in controversy was described as “a space supposed to be five feet wide left by all concerned for an alley.”

The plaintiff now owns forty feet fronting on Chestnut street and running south eighty feet six inches to a private alley ten feet wide which runs east to Eighth street. The defendant owns two tracts. One tract was acquired in 1891, and is eighty-four feet fronting on Chestnut street running south thirty-one feet,- the east line of it’being the. west line of the alley. The other tract acquired by defendant in 1894 fronts twenty-six feet two inches on Ninth street and runs east one hundred and twenty-five-feet to the alley, the east end of-it being south of and adjacent to the other tract of defendant. The relative positions of those tracts with reference to the alley are shown on the following plat:

In that partition the land east of the alley was assigned to Henry S. Turner and wife, and the chain of title thereto down to the plaintiff is as follows: April 28, 1856, Turner and wife conveyed it without mentioning the alley to Henry L. Patterson, who, on May 1, 1856, conveyed to James H. Lucas, describing it as bounded “west by an alley five feet wide.” On April 6, 1872, James H. Lucas conveyed it to Robert J. Lucas as trustee for Joseph D. Lucas, describing it as bounded “south by alley and west by Gar-diner and others.” On November 16, 1875, Robert J. Lucas, as trustee, conveyed it to Joseph D. Lucas by the same description as in the last deed. There ;is no explanation in the evidence as to why those two deeds described the land as bounded “west by Gardiner and others.”

In 1903 Joseph D. Lucas died, devising all his property to his wife, who, on November 29, 1904, conveyed it to Wm. Bunning, and by a quitclaim deed of the same date she conveyed a strip five feet wide corresponding to the five-foot alley to said Bunning, describing it by metes and bounds, but not stating that it was an alley, and also a strip corresponding to the ten-foot alley, but not describing it as an alley.

On November 29, 1904, Bunning conveyed the property east of the alley to Hannah R. Daugherty, and also, by a quitclaim deed, conveyed the five-foot and ten-foot strips to Daugherty, not calling them alleys. On May 16, 1907, Daugherty conveyed the property east of the alley to the plaintiff, and also conveyed with it the two strips by quitclaim deed, as it was described in the deed to 'him. All the deeds in the plaintiff’s chain of title to the land east of the alley conveyed the land with its appurtenances.

The chain of title from the Lucas heirs to the land west of the alley was not put in evidence.

On January 30, 1885, Robert S. McDonald conveyed the land fronting eighty-four feet on Chestnut street immediately west of the alley, running south thirty-one feet, describing it as hounded east by a private alley, to Robert N. Noonan, trustee for Josephine Noonan. On January 3, 1889, the Noonans conveyed it to-Alfred D. Ryan, trustee for his wife, describing it as bounded east by a private alley, and on February 11, 1891, the Ryans conveyed it by the same description to John Staed, Patrick M. Staed and Patrick J. Staed, and on the same day the Ryans conveyed to. the Staeds by quitclaim deed for the expressed consideration of five dollars ‘ ‘ a parcel of land in block 190 of said city of St. Louis, being known as a private alley, and fronting on the south line of Chestnut street about five feet more or less, by a depth southwardly of about thirty-one feet, the west line thereof being one hundred and twenty-five feet east of the east line of Ninth street, and bounded on the north by Chestnut street, west by property conveyed to Staed et al., by deed dated February 11, 1891, and east by Lucas.”

At the time of the conveyance to the Staeds there were two-story brick buildings fronting on Chestnut street on both sides of the alley, the walls being five feet, three and one-fourth inches apart. The west building extended south thirty-one feet, and the wall next to the alley was without openings except a window near the south end in the second story. The wall on the east side of the alley was without openings and extended further south than that on the west side. On both sides of the alley fences ran south from the comers of those buildings to the ten-foot alley. Those fences remained there until shortly before this suit began. The alley was open in 1891 from Chestnut street to the ten-foot alley. There was no opening or gate in the fence on the east side of the alley.

In 1892 the north end of the alley for a distance of about twentymne feet was enclosed by wooden framework and doors on the north and south and with a roof and floor, and the room thus formed hereinafter called the “cigar store” was occupied most of the time by cigar men, and a part of the time by a bootblack and ,by a brick man. It rented at ten, dollars a month np to the' time of the trial.

On April 18, 1894, the Staeds conveyed. to the Staed Realty Company land described as follows: “A lot of ground in city block 190.of said city of St. Louis, beginning at a point in the south line of Chestnut street forty-one feet east of Ninth street; thence east along south line of Chestnut street eighty-four, feet to west line of private alley; thence south along west line of private alley parallel to Ninth street thirty-one feet to the northeast corner of property now or formerly of Wolff et al.; thence west parallel to Chestnut street eighty-four feet to the southeast corner of property of Robert S. McDonald; thence north parallel to Ninth street thirty-one feet to the point of beginning.”

No deed to the defendant was in evidence for the twenty-six feet, two inches fronting on Ninth street; but on October 24,1894, the defendant executed a deed of trust describing it as follows: “A lot of ground in said city block 190 containing a front of twenty-six feet four inches, more or less, on the east line .of Ninth street, by a depth eastwardly of one hundred and twenty-five feet, more or less, to a private alley five feet wide. Bounded on the west by Ninth street, east, by a private alley, south by a lot now or formerly pf S. J. Fisher et ah, and north by a line thirty-one feet south of the south line of Chestnut street.”

On April 8, 1901, the defendant executed a deed of trust on property described as follows: “A lot .of ground in block 190 of said city of St. Louis, fronting twenty-six feet and two inches on the east line of Ninth street, by a depth eastwardly of one hundred and twenty-five feet, more or less, to the west line of a private alley five feet wide, and bounded on the north in part by property also conveyed in said deed, and in part by property formerly of R. S. McDonald, and on tbe east by a private alley, and on tbe south by property formerly of Minnie L. Siegrist, and on tbe west by Ninth street; and also a lot of ground in said block having a front of eighty-fóur feet on the south line of Chestnut street, by a depth southwardly of thirty-one feet, more or less, to the northern line of property first described in said deed. Bounded on the north by Chestnut street, on the east by said private alley five feet wide, on the south by the property first described in said deed, and on the west by a line forty-one feet, more or less, east of the east line of. Ninth street.”

On May 6, 1907, the defendant executed a deed of trust on property described thus r “Parcel 1. That part of city block numbered 190, beginning in the south line of Chestnut street at a point forty-one feet, more or less, east of the southeast corner of Ninth and Chéstnut; thence east on the south line of Chestnut eighty-four feet, more or less, to a private alley five feet wide; thence south with the west line of said private alley thirty-one feet, more or less, to the. northeast corner of property formerly owned by M. A. Wolff, and now owned by Staed Realty Co.; thence west and parallel with Chestnut street eighty-four feet, more or less, to the southeast corner of premises now or formerly owned by R. S. McDonald;' thence with the east line of said last mentioned premises thirty-one feet to the place of beginning.' Parcel 2. That part of said city block 190 beginning on the east line of said Ninth street at a point thirty-one feet, more or less, south of the southeast corner of said Ninth and Chestnut streets, running thence eastwardly one hunclred and twenty-five feet, more or less, to the west line of a private alley five feet wide, at a point thereon which is the southeast corner of parcel 1, above •described; thence southwardly with the west line of said private alley twenty-six feet, four inches, more or less, to the property now or formerly of Minnie L. Siegrist; thence westwardly with the north line of said property of Siegrist one hundred and twenty-five feet to the east line of Ninth street; thence northwardly with the east line of Ninth street twenty-six feet, four inches to the place of beginning.”

Mr. John Staed testified for defendant as follows: “Mr. Farley, the real estate agent, occupied

this property east of this five feet, and was a tenant of Mr. Lucas; that is the property now owned by the Dulce people and'occupied by Waide & Willis. For a great many years Thomas Farley, real estate agent, occupied that as his office.

“Q. During all that time did that property belong to Joseph Lucas? A. I suppose so; I do not know who it belonged to, but I think it was Lucas’s agent.”

CROSS-EXAMINATION.

“Q. This construction that covered that five feet on the front there on Chestnut street, is that brick or stone, or what? A. You can look at it there and see. I think it is wood myself. I never examined it very sharp. My brother got it built, I didn’t build it.

“Q. Isn’t it a fact that Farley built it there? A. Not that I know. I am sure he never did build it. I would' know something about it if he did..

“Q. Who was in charge of the Staed Realty Company’s affairs fifteen years ago? A. Well, my brother was the leading man, and I was secretary and treasurer then. I paid all the bills.

“Q. The Staed Realty Company didn’t own this property originally, this eighty-four feet, — it was owned by you and your brother and a number of others? A. It was the same stockholders as we have now.

“Q. It was owned by yon severally? A. Yes, sir.

“Q. Who was managing that property then— handling it? A. I got the money out of the rents and paid the bills. I have been always getting the rents and tending to that property. We had Mr. Mc-Menamy collect some rents and Mr. Brennan collect some, and Mr. Earley. Mr. Parley just collected for that cigar place; that was all he collected. He collected ten dollars a month and gave it to me. He gave me ten dollars a month during a period of twelve or thirteen years, I suppose. He charged a commission of three per cent.

“Q. Why did he collect for that and the others collect for the balance of your property? A. Well, Brennan had been collecting for the other officers there, and my opinion is that Mr. Parley asked me to give him some of our collections, and we commenced with that, I think.

“Q. He collected that because he had built that shack, had he not? A. No; he did not build the shack. I don’t think so. My brother told me he got the shack built. That is all I know about it.

“Q. You say your brother told you he built the shack there? A. Yes, sir; I paid for it. I was treasurer and paid all the bills at that time.

“Q. Who did you pay for it? A. My opinion is, I gave him the money to pay the men who built the shack there. I don’t remember who built it. It is such a long time ago I have not any account of it now. My brother attended to that part of the business which I have to attend to now, since he died. He attended to the building associations and several things of that kind, we managed it between us. We didn’t have any fixed thing about it. We were all one, you might say.

“Q. I will ask you this question. I will ask you whether or not it was your intention when you took possession of that property and all the time you have occupied it, to claim it as owner, or whether you did claim it as owner? (Objected to by plaintiff.) A. My intention was, of course, that it was our property. They had neither a door or window or anything else to show they had any claim to it; they had an alley to the rear of their own lot.”

Mr. Levy, a tenant of the defendant and a real estate man, testified that the side walls of the cigar store were the brick walls of the adjoining buildings; and that there was a fence ten feet high across the alley thirty-one feet south of Chestnut street which has'’been there for sixteen years. He also testified there was a fence on the west side of the, alley and a fence' from the brick building on the east side of the private alley that ran out into the ten-foot private alley. '

It was the custom of the revenue department of the city to assess private alleys to the adjoining owners. Up to 1900, defendant paid taxes on eighty-seven feet, nine inches on Chestnut street front and one hundred and twenty-five 'feet deep fronting on Ninth street. After that it paid on eightymine feet fronting on Chestnut street. At the time the cigar store was built there was an ordinance requiring a building permit from the building commissioner before any building could lawfully be erected, and further providing that no permit should issue for a frame or wooden building in that district, and making it a misdemeanor to violate that ordinance. No such permit was issued for the construction of the cigar store.

Just prior to, and at the time of, the bringing of this suit, the defendant was excavating for the purpose of constructing a building on the east end of its tract which fronts on Ninth street, with the intention on the part of defendant of constructing that building on the alley with its east wall flush with the east line of that alley. Pending the suit and before the trial such building was constructed one story high.

I. It may help us to understand the questions involved if we first determine what the rights of the owners of the property abutting on the alley were prior to the beginning of the controversy. The Lucas partition deeds' created an easement in the alley in favor of those parties, and such easement was appurtenant to the several tracts of land and passed to the grantees through the mesne conveyances down to the parties to this controversy, unless it has been abandoned or extinguished in some way.

"Washburn on Easements, Ch. 1, Sec. 1, Par. 13, says': “The owner of an easement in another’s land has neither the general property in nor seisin of the servient estate, though he may, by holding a fee in the estate to which such easement is appurtenant, have an estate of inheritance in the easement. And from being something impalpable, of which a seisin cannot be predicated, easements are classed with incorporeal hereditaments, and are so designated in the definitions thereof.”

Where, therefore, one grants or reserves a right of easement over one parcel of land in favor of another, such easement, by such act of creation or annexation, would become incident and appurtenant to such estate respectively, and pass as appurtenant in after conveyances, by, or even without, the word appurtenances, so long as such estates should subsist as distinct estates in different proprietors.

II. At the time of that partition the Lucas heirs owned all the land including that in the alley. The deeds did not expressly convey the fee in the alley to any one.

■ It is a well known rule that, in the absence of evidence to the contrary, it will be presumed that the owners of property abutting on a public way hold the fee to the center of the way. In Holmes v. Belling-ham, 7 C. B. N. S. 329, decided by the English Court of Common Pleas in 1859, Chief Justice Cockbtjrn said: “The same principle which applies in the case of a public road, and which is the foundation of the doctrine, seems to me to apply with equal force to the case of a private road. That presumption is allowed to prevail upon grounds of public convenience, and to prevent disputes as to the precise boundaries of property; and it is based upon this supposition — which may be more or less founded in fact, but which at all events has been adopted — that, when the road was originally formed, the proprietors on either side each contributed a portion of his land for the purpose. I think that is an equally convenient and reasonable principle whether applied to a public or to .a private road; but, in the latter case, it must of course be taken with this qualification, that the user of it has been qua road and not in the exercise of a claim of ownership.”

That case was cited with approval in Dill v. Board of Education, 47 N. J. Eq. 421.

It is thus seen that the defendant has no title in any event to the east half of the alley unless it has established title by the Statute of Limitations. The mere destruction or abandonment of the easement would not give defendant title to the east half of the alley.

The easement was acquired by deed and the cases are practically unanimous to the effect that an easement so acquired cannot be lost by mere nonuser. [Dill v. Board of Education, supra; Structural Co. v. Distilling Co., 189 Mass. l. c. 153; Wiggins v. McCleary, 49 N. Y. 346.]

The deed made in trust for Joseph D. Lucas by James H. Lucas in 1872 and the trustee’s deed to Joseph D. Lucas made in 1875 do not mention the alley, and state that the land therein conveyed was bounded on the west by the land of Gardiner et al. There is no other evidence of any kind in the case that Gardiner owned the land west of the alley or claimed the alley. On the other hand, all the evidence in the case shows that the alley was there and undisputed by anybody at the time those deeds were made. We are justified in regarding those recitals as to Gardiner et ah as being made by some inadvertence.

III. In 1891, when the Staeds became the owners of the land on the west side, Joseph • D. Lucas owned on the east side of the alley. Lucas, as his name indicates, is supposed to have been one of the family who created the alley; and he had owned his land for nineteen years. The Staeds were notified by their deeds that the alley was there. It was open from Chestnut street to the ten-foot alley on the south. All concerned knew of it, and no one was hostile to it.

It is claimed now that the quitclaim deed from the Ryans for the five foot strip gave the Staeds “color of title.” If so, it was'decidedly .“off color,” for it stated that the strip was “known as a private alley.” We construe that deed not as an impeachment of the alley, hut as a confirmation of it, and we think it was so considered at the time it was made, by the parties thereto.

Such being the condition of the alley and the attitude of the parties towards it in 1891, we are interested in discovering how the cigar store got.in there in 1892. Did the Staeds put it there with the intention to permanently hold the strip as their own? We are justified in drawing the inference that they were experienced in real estate matters. They knew the requirements as to building permits and as to the illegality of wooden structures in that district. They do not seem to have regarded that structure as of sufficient importance to require a conformity with the law as to it. It must have cost very little to construct it, and'it rented for ten dollars a month. Lncas is dead. Patrick M. Stáed, a former sheriff of St. Louis, who attended to the building of it oh the part of the Staeds, is dead. Mr. John Staed, who testified for the' défendant," did not even know who built it. He said, “My brother told me he got the shack built. That is all I know about it. I was treasurer and paid all the bills at that time. My opinion is, I gave him the money to pay the men who built the shack there.” On the other hand, Mr. Farley was a real estate man, had an office in the Lucas'property and was Lucas’s agent. The Staeds had a real estate man, who, as their agent, collected all their rents except for this cigar store. The rent on that, for about twelve years, was collected by Farley, Lucas’s tenant and agent.' On that question Mr. John Staed testified:

“Q. Who was managing that property ' then— handling it? A. I got the money out of the rents and paid the bills. • I have been always getting the rents and tending to that property. We had Mr. Mc-Menamy collect some rents'and' Mr. Brennan collect some, and Mr. Farley. Mr. Farley just collected for that cigar place'; that was all he collected.' He collected ten dollars a month and gave it to me-. He gave me ten dollars h month during a period of twelve or thirteen years, I suppose. He charged a commission of three per cent. ■
“Q.- Why did he collect for that and the others collect for the balance of your property? A. Well, Brennan had been collecting for the other offices there, and'my opinion is that Mr. Farley asked me to give him some of our collections, and we commenced with' that, I think.”

The fact that Farley was Lucas’s tenant and agent and collected the rent on the cigar store while the rents of' the Staed property were collected by another' agent is a strong circumstance in favor of the inference that the cigar store was not built in opposition to Lucas, but with Ms consent and permission, at least. On the other hand, Mr. Staed stated only his “opinion” and what he “thought” as to what the facts were.

Immediately following 1892 the west 'part of the alley was assessed to the Staeds, but not all of it until 1900. In 1894 the deed was made to the Staed Realty Company. It has been suggested that the reason the alley was mentioned in that deed was because the conveyancer followed former deeds by copying. In the statement of facts the descriptions in the various deeds' of trust- thereafter executed by the defendant are given. A comparison of those descriptions will show that the conveyancer did not always follow copy, but did always clearly call for the alley. In addition to those facts, the defendant ácquired the- south tract fronting twenty-six feet, two inches on Ninth street in -1894. Its deed was not put in evidence, but about the same time it executed a deed of trust on its new purchase which called for the alley. If that alley got into that deed of trust purely as the result of copying, those experienced real estate men interested in the defendant company were surely the victims of their conveyancers.

The claim is made -by the appellant that the- evidence shows that the part of the' alley covered by the new building was, prior to the construction of that building, included in the defendant’s yard. The evidence does not support such contention. Some parts of it are cap able, of that construction, but the whole of it taken together, including that of defendant’s witnesses, shows that there was a fence between that part of the alley and defendant’s yard. Up to the time when defendant prepared to build that new building just before this suit was begun, it had never pretended to claim- that part of the alley.

We are driven to the conclusion from the facts ■ that the beginning of the possession of the cigar store by the Staeds was originally with the permission of Lucas and that such possession was not under any adverse claim' of right until very shortly before this suit was brought. No possession can result in title by limitations unless the same is under a claim of right or color of title. [Bowman v. Lee, 48 Mo. 335; Fugate v. Pierce, 49 Mo. 441; Dalby v. Snuffer, 57 Mo. 294; Bradley v. West, 60 Mo. 33; Baber v. Henderson, 156 Mo. 566; Heckescher v. Cooper, 203 Mo. 278.]

The judgment is affirmed.

Blair, G., concurs.

PER CURIAM.

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

All the judges concur.


source: Caselaw Access Project

author: BROWN, P. J.

license: Public Domain

text:
    THE STATE v. HENRY THORNTON, Appellant.
    Division Two,
    November 13, 1912.
    1. PERJURY: Testimony Before Grand Jury: Incriminating Statement. If the grand jury, in calling defendant before them a second time, were seeking evidence to convict him of perjury committed by him in a statement he made before them on a former occasion, then the statement he made on his second appearance is not admissible evidence to show he committed perjury on such former occasion.
    2. -: -: -: Involuntary Witness Against Self. Evidence involuntarily given before a grand jury should not be admitted to prove a crime theretofore committed by the witness giving such testimony. An involuntary confession of guilt is not admissible against a party making it when he is placed on trial for the crime to which the confession relates. And where defendant was brought before the grand jury a second time, and admonished by one of the jurors that he had “better make a clean breast of it and come across,” and was not advised that, if he changed his testimony and gave evidence different from that given by him upon his former examination, he might be prosecuted for perjury, he was not a voluntary witness, and the testimony he then gave cannot be used as evidence against him in a subsequent prosecution for perjury alleged to have been committed on his first examination.
    3. -: Instruction: Necessary Proof: Admissions. An instruction on the quantum of proof in a perjury case is erroneous if it fails to inform the jury that the falsity of defendant’s testimony as given by him before the grand jury must be proven by at least one credible witness, aside from any admissions or statements made by defendant himself. The jury cannot take into consideration incriminating confessions or admissions made by defendant before the grand jury in determining whether or not there was sufficient corroboration of the falsity of defendant’s testimony.
    Appeal from Boone Circuit Court. — Now. David H. Harris, Judge.
    Reversed and remanded.

      Harris & Finley for appellant.
    (1) The court erred in admitting the evidence as to defendant’s statements on his second appearance before the grand jury, because said statements were not voluntary, and to admit the same was in violation of Art. 2, Sec. 23, Constitution. State v; Young, 119 Mo. 495; State v. Senn, 32 S. C. 392; Tuttle v. People, 33 Colo. 243; State v. Clifford, 86 la. 550; State v. New-comb, 220 Mo. 65. (2) The court erred in admitting the testimony of the witness, Charles Matthews, as to defendant having procured whiskey for him. State v. Stike, 149 Mo. App. 104; State v. Phillips, 233 Mo. 299. (3) The court erred in giving the erroneous instructions 1 and 3, and in failing therein to properly instruct the jury as to the corroboration necessary to convict the defendant of the crime of perjury. Schwartz v. Commonwealth, 21 Am. Rep. (Mass.) 365; Butler v. State, 38 S. "W. (Tex.) 46; State v. Heed, 57 Mo. 253; State v. Hunter, 181 Mo. 335.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the Stale.
    (1) The action of the court in the admission and rejection of evidence is not here for review. One may be guilty of perjury even though his testimony, if truthfully given, would have been self-incriminating. State v.' Faulkner, 175 Mo. 546. And this is true, although the witness is compelled to testify. State v. Lehman, 175 Mo. 619; State v. Day, 100' Mo. 242; State v. Ackerman, 214 Mo. 225. The principal witness was corroborated. 1 Chitty on Crim. Law, 565; 3 Greenleaf on E'v., Sec. 19'8, p. 198. (2) Instruction 1, as to the declaration of the crime and the punishment thereof: State v. Gordon, 196 Mo. 185; instruction 2 as to reasonable doubt: State v. Barr, 198 Mo. 35; and instruction 3 defining corroboration: State v. Houts, 181 Mo. 316, are all in accordance with approved precedents of this court, and no complaint can be made against them.
   BROWN, P. J.

— Defendant was convicted in the circuit court of Boone county of the crime of perjury, and appeals.

The offense of which defendant stands convicted is alleged to have been committed about April 4, 1911, during an investigation by the grand jury of .Boone county to ascertain if illegal sales of intoxicating liquors had taken place in that county.

After being summoned before the grand jury and sworn by its foreman, defendant was asked if he “purchased any whiskey from R. I. Woodard in Columbia, Missouri, during the last twelve months.” To this question defendant replied, “I have not bought any whiskey since Doctor Conway was a duly licensed physician, and then, on prescriptions given by lfim.” This answer was committed to writing and signed by the defendant.

By other witnesses it was shown that Dr. Conway’s license to practice medicine was revoked in May, 1910 (ahont eleven months before defendant was summoned before the grand jury).

After giving the above recited evidence, defendant was temporarily excused, with directions to come before the grand jury again when requested to do so. About four days later, said grand jury again called defendant as a witness, and by propounding further questions and admonishing him that he had “better make a clean breast of it and come across,” succeeded in securing from defendant the following additional statement, which was also committed to writing and signed by him:

“On the evening of about March 18, 1911, I bought two quarts of whiskey from Woodard’s drug store. I gave three dollars for the two quarts. Mr. Woodard waited on me. I had no prescription for whiskey. He did not ask me for prescription.
“Henry Thornton.”

Pour witnesses testified that on March 18, 1911, they gave defendant three dollars with which to purchase whiskey for them; and that he brought them two quarts of whiskey and requested them “not to blow it on him” if they were summoned before the grand jury.

One other witness testified that he procured whiskey through defendant in the same manner less than one year before the grand jury investigation.

Defendant did not testify as a witness in this cause.

Within less than an .hour after the defendant appeared before the grand jury the second time, an indictment was returned charging him with committing perjury during his first examination by swearing that he had not bought any whiskey “since Doctor Conway ,was a duly licensed physician, and then on prescription given by him.”

Defendant was tried and convicted on this indictment.

To secure a reversal it is urged that the trial court erred in admitting, on the part of the State, deféndant’s testimony as written and signed when he was called before the grand jury the second time.

The defendant contends that said statement so introduced was not voluntarily made, and that its admission amounted to a violation of his constitutional rights, in.that it compelled him to testify against himself.; as prohibited by Art. 2, Sec. 23, Constitution of Missouri of 1875.

Objection was made to the introduction of said statement, on that ground, and exception duly saved when it was admitted.

In the case of State v. Young, 119 Mo. l. c. 520, it was held by this court: “The Constitution means more than the protection of the accused on his final trial when his rights are scrupulously guarded by the courts. It as clearly protects him from being forced to testify against himself in any and all preliminary investigations, whether before the coroner, grand jury or the justice on his preliminary examination. The immunity afforded him by the Constitution is broad enough to protect him against self-crimination ‘before any tribunal, in any proceeding.’ [Counselman v. Hitchcock, 142 U. S. 547; Cullen v. Commonwealth, 24 Grratt. 624; State ex rel. v. Hardware Co., 109 Mo. 118.]”

The doctrine announced in the Young case has been generally followed by this court. [State v. Naughton, 221 Mo. 398; State v. Lehman, 175 Mo. 619, l. c. 628; and cases therein cited.]

In the latter case the doctrine is announced that while one guilty of a crime may refuse to answer questions propounded to him by a grand jury, if truthful answers to such questions would tend to criminate him; yet, if he does testify, he must speak truthfully, or subject himself to the pains and penalties of perjury. In the same case the further doctrine is announced that if the accused does testify before the grand jury and his answers tend to show him guilty of the crime then under investigation, such answers are not admissible against him when he is indicted and placed on trial for the pífense. [175 Mo. 628.]

The facts in the case at bar are a little different from any case to which our attention has been called. Here, the grand jury, in obtaining the second statement made by defendant, and which he claims was erroneously admitted in evidence, was apparently not seeking evidence against r‘defendant, but merely, investigating a charge of illegal sales of intoxicating liquors against another party, to-wit, E. I. Woodard.

However, the statement obtained from defendant tended strongly to prove that he had committed an independent crime not connected with the subject of the investigation, to-wit, the crime of perjury in giving false testimony on his first examination.

If in calling the defendant before them the second time, the grand jury were seeking evidence to convict him of perjury committed in his first statement, then upon the authorities before cited, the second statement made by him was not admissible in evidence against him in this case.

If a witness is to be protected against criminating statements made when interrogated by a grand jury about a crime which he is suspected by the grand jury of having committed, we can see no reason why he should not also be protected against involuntary evidence which he may give tending to show that he has committed an independent crime not then under,investigation.

There is no good reason why the mental status of the grand jurors should have any bearing upon the effect or admissibility of evidence involmtarily given before them.

No written charge is necessary to authorize grand juries to inquire into the commission of crimes. They have jurisdiction of all classes of crimes. Subpoenaes issued to bring witnesses before grand Juries 'do not designate what crimes they have under investigation;’ nor is there any statute requiring them to notify witnesses what crimes they are investigating. There is no law prescribing the rules of evidence for grand jury investigations; in fact, such investigations are most frequently conducted by men possessing’ no knowledge of the law of evidence. The interrogatories they propound may and often do' take a wide range and embrace many different crimes.

When these facts are taken into’ consideration, there is good reason for holding that evidence involuntarily given before a grand jury should not be admitted to prove any crime theretofore committed by the witness giving such testimony. If a witness voluntarily appears before a grand jury and voluntarily testifies, a different rule would, of course, prevail.

The spirit of the law is that an involuntary confession of guilt is not admissible against the party making same when he is placed on trial for the crime to which such confession relates. This is upon the, theory that to admit a confession of guilt not voluntarily made, would amount to compelling the witness making such confession to testify against himself, as prohibited by Sec. 23, Art. 2, of our Constitution.

This doctrine is supported by Mr. Wharton in his work on Criminal Evidence (10‘ Ed.), page 1281, which reads as follows: “Where the accused voluntarily testifies under oath before a grand jury, his confession may be given in evidence against him. But, if thé accused is taken before the grand jury and compelled to testify, by it, and not voluntarily, such a confession cannot be used in evidence against Mm.”

Tbe record in tMs case shows that when the defendant .was brought before the grand jury the second time, he was admonished by one of the grand jurors that he had “better make a clean breast of it and come across,” though he was not advised that, if he changed his testimony and gave different evidence from that given upon the first examination, he might be prosecuted for perjury.

Upon the whole record we are convinced that the second statement made by defendant before the grand jury was not voluntary, but was made to escape some sort of punishment which defendant thought the jury or court possessed the power to inflict upon him; therefore, Ms second statement was not admissible in evidence in this case.

Further error is assigned in the action of the court in giving instructions numbered 1 and 3, in which the following language appears:

“1. . . . You should not convict the defendant unless you believe and find that the falsity of the statement upon which, by the indictment under these instructions, the charge against him is based, has been to your satisfaction fully established, either by the testimony of-more than one creditable witness, or by that of one such witness corroborated by other evidence in the cause, wMch convinces your minds of the truth of the testimony of such single witness to the fact, and of the falsity of the statement; and not then, unless you further find from the evidence the existence of all the other elements of the offense, and of the facts necessary to authorize his conviction, as such other elements and facts are hereinbefore fully set forth. In other words, before you can find the defendant guilty under the indictment, it devolves upon the State to prove to your satisfaction by the testimony of two credible witnesses, or one credible witness and corroborating circumstances provén by other credible witnesses in the cause, beyond a reasonable doubt, that Henry Thornton, since the license of the said Dr. Conway, as a physician, was revoked and before the time of his giving such testimony before said grand jury and within one year next before the 10th of April, 1911, did purchase whiskey from the said R. I. Woodard.
“3. The court instructs the jury that to ‘corroborate’ means to strengthen, to confirm by additional testimony, to add strength to. The testimony of a witness is said to be corroborative when it is shown to correspond with the representation of some other witness, or to comport with some facts otherwise known or established; and that the term ‘corroborating circumstances,’ as used in these instructions, means such facts and circumstances detailed in evidence which tend to strengthen and confirm other testimony or evidence in the case.”

These instructions are erroneous, in that they fail to inform the jury that the falsity of defendant’s evidence, as given by him before the grand jury, must be proven by at least one credible witness, aside from any admissions or statements made by the defendant himself.

This point was before us and carefully considered in the case of State v. Hunter, 181 Mo. 316, l. c. 337 and 338. In that case, like the case at bar, the conviction rested partly upon criminating statements made by the defendant himself; and we held that the jury in that class of cases must be instructed that they cannot take into consideration confessions or admissions of the defendant in determining whether or not there was sufficient corroboration of the falsity of defendant’s evidence.

It is also contended by the defendant that the evidence was not sufficient to authorize the court to'submit the case to the jury; but as the evidence may be different upon a second trial, we will not pass on that assignment.

For the trial court’s error in admitting the statement involuntarily made by defendant when he was before the grand jury the second time, and for its further error in giving instructions numbered 1 and 3, the judgment is reversed and the cause remanded.

Ferriss and Kevmish, JJ., concur.


author: KENNISH, J.

text:
    THE STATE v. THOMAS HARRIS, Appellant.
    Division Two,
    November 13, 1912.
    1. ALIBI: Instruction: Not Authorized by Evidence. Where it was shown by the testimony, including that of defendant, that at the time the fatal shots were fired defendant was in the crowd that had assembled by reason of a collision between a buggy and wagon and the altercation which followed between the owner of the buggy and the driver of the wagon, there was no question of alibi in the case, and defendant was not entitled to an instruction on the defense of alibi.
    2. -: -: Not Ground of Motion. Even though an instruction on the defense of 'alibi may have been authorized by the evidence, the failure of the court to give such an instruction should have been made a ground of the motion' for a new trial, and if that was not done such failure cannot be held to be error on appeal, or the point considered.
    3. CONFLICT IN EVIDENCE: Province of Court. Although the testimony for the State that defendant was seen to come from his house with a pistol in his hand and fire the fatal shot at another which hit deceased, is pointedly contradicted by defendant and his witnesses, who testified that he had no pistol and did not shoot at all, the court cannot override a verdict of guilty, since it is for the jury to pass upon the credibility of witnesses and to determine the facts.
    Appeal from Jackson Criminal Court. — Hon. E. E. Porterfield, Judge.
    Aeeirmed.

      Moore Handy and Swearingen & Olson for appellant.
    (1) The court erred in admitting irrelevant, incompetent and immaterial testimony- on behalf of the State. (2) The court erred in failing to instruct the jury on all of the law governing the case. State v. Howell, 100 Mo. 628; State v. Woodward, 111 Mq. 249; State v. Taylor, 118 Mo. 154; State v. Koplan, 167 Mo. 298; State v. Kennedy, 177 Mo. 132; Sec. 5231, R. S. 1909. The court failed to give an instruction on defendant’s evidence proving or tending to prove an alibi. .The entire evidence on behalf of the State tended to show that the defendant was from forty to fifty feet west of the wagon that was being driven east -on Eighteenth street. The defendant’s testimony tended to .prove that at the time of the shooting, the defendant was within a few feet of Brooklyn avenue trying to assist the man who had been beaten away from the scene of the trouble. The defendant testifies that he was holding the man up in the wagon and trying to get him to take the lines at the time the shooting began. He is corroborated by- the witnesses, Herndon and Bolin. If their evidence is true then the defendant was not at the place where the shots were fired at the time the shooting began.

      Elliott W. Major, Attorney-General, and Jolm M. Dawson, Assistant Attorney-General, for the State.
    Where there is substantial evidence to support the verdict, 'the judgment will not be reversed on the ground that the verdict is against the evidence, or the weight of the evidence. This court will not convert itself into a trier of the facts and undertake to find a different result from that of the jury. State v. Alexander, 184 Mo. 266; State v. McCullough, 171 Mo. 574; State v. Sayman, 103 Mo. App. 141; State v. Thorn-hill, 177 Mo. 691; State v. McKenzie, 177 Mo. 699; State v. Nave, 185 Mo. 125; State v. Tetri ck, 199 Mq; 100; State v. Matthews, 202 Mo. 148; State v. Smith, 1Ó9 Mo. 706; State v. Williams, 186 Mo. 128; State v. Williams, 199 Mo. 137.
   KENNISH, J.

— Appellant Thomas Harris was prosecuted by information filed in the criminal court of Jackson county at the January term, 1909', upon a charge of murder in the first degree, for killing, by shooting with a pistol, one Frank Smith, at said county, on the 5th day of September, 1908. He was tried, convicted of murder in the first degree, his punishmént fixed at imprisonment for life, and from the judgment he appealed to this court. The case was heard on appeal at the October term, 1910', with the result that the judgment was reversed and the cause remanded for a new trial. The decision of this court on said appeal is reported in the 232nd volume of the Missouri Reports; beginning at page 317.

At the April term, 1911, of said criminal court, appellant was a second time put upon his trial, convicted of murder in the second degree, his punishment being assessed at ■ imprisonment in the penitentiary for a term of fifty years. He has again appealed to this court.

The evidence for the State tended to show that a young man named Harry Wilson, about 9 o ’clock p. m. on September 5, 1908, driving a horse and single buggy, went to call upon a young man named Hale living on the south side of Eighteenth street, between Brooklyn and Euclid streets in Kansas City. Wilson hitched his horse to a telephone post near the curb and went into the Hale home. Shortly thereafter a colored man, driving a one-horse delivery wagon and going east at a fast gait, struck the hind wheel of the Wilson buggy, turning it over and causing the horse to fall on the ground. While the colored man was trying to free his wagon from the buggy, Wilson came out- and getting upon the delivery wagon commenced beating the driver. The collision, followed by the assault, soon attracted a number of people to the scene. After he had beaten the colored driver almost into insensibility he left him in the seat and got off the wagon and gave attention to his horse and buggy. The colored driver, after Wilson had left him, fell from his seat, upon the shafts, and was assisted to the ground. Bystanders then placed him bach in his seat on the wagon and his horse was led slowly east toward Brooklyn street. When the delivery wagon had moved a distance of from ten to twenty feet from where it had struck the buggy, Wilson, and Prank Smith, the deceased, walked in the direction of the delivery wagon, the former intending to secure the number of the delivery wagon. They had advanced but a few feet when several shots were heard. These shots were evidently intended for Wilson, but struck deceased and mortally wounded him.

The defendant, a colored man, thirty-nine years of age, a contractor and builder, owned a building occupied as flats adjoining the Hale home where Wilson was visiting. The defendant did not reside in his said property, but at the time of the difficulty was there attending to business in connection therewith. Witnesses for the State testified that as Wilson and Smith were walking toward the delivery wagon the defendant was seen hurrying from his property to the street and, advancing in the direction of Wilson and Smith, with a pistol in his hand, commenced shooting at them. That after the shots were fired the defendant escaped from the scene and the officers were unable to find him.

There was much testimony on behalf of the defendant tending to show that when the defendant came from his house into the crowd he went to the delivery wagon and assisted the driver back into the seat, and that at the time the shots were fired he was still at the wagon giving his attention to the driver. The defendant was a witness in his own behalf and testified positively that he did not have a pistol when he went into the street and did not fire the shots. His testimony was corroborated by others who were with him at the time. He explained his flight by saying that he was informed immediately after the shooting that a mob was looking for him and that it would be best that he should get out of reach until the excitement subsided. He also testified that he had business at Salina, Kansas, and that he concluded to attend to that while absent from Kansas City; that as soon as he heard he could return with safety, he sent word to the officers and voluntarily surrendered to them.

Instructions were given to'the jury by the court of its own motion, authorizing a conviction of murder in the first or second degree, according as the jury might find from the evidence; also upon the presumption of innocence, reasonable doubt, motive, flight, and such other instructions as are usually given in a criminal case. No instruction was asked by the defendant.

After the court had prepared its instructions and before they were read to the jury, the following colloquy between the court and counsel for the defendant occurred, as shown by the record:

“Me. Handy: The defendant objects and excepts to each and every instruction given in this case and for the further reason that the court has failed to Instruct on all the law in this case.
“The Court: Suggest to the court—
“Me. Handy (interrupting): I object and except to each and every instruction given on behalf of the State, and to each and every instruction given in this case. That is one reason, and for a further reason, that the court has failed to instruct on all the law in the case.
“The Court: The court asks Mr. Handy, counsel for defendant, to advise the court in what respect the court has failed to instruct on all the law in the case.
“Mr. Handy: Defendant, through his counsel, refuses to advise the court wherein he has failed to instruct on all the law in this case.
“The Court: Have you any instructions to offer?
‘1 Mr. Handy : None.
“Thereupon the court read said instructions to the jury as above given.”

The cause was submitted in this court without oral argument and without a brief for appellant. Fifteen days after submission, on leave granted by the court, appellant filed a brief in which but two errors are assigned, namely:

“The court erred in admitting irrelevant, incompetent and immaterial testimony on behalf of the State.
“The court erred in failing to instruct the jury on all of the law governing the case.”

Under the first assignment, notwithstanding the fact that no ruiing of the court has been called to our attention in which alleged incompetent testimony was admitted, we have read with care the entire record and have concluded that the rulings of the court were in accordance with the law and that this complaint is without merit. ,

In support of the second error assigned it is now claimed for the first time that the defendant was entitled to an instruction on the defense of alibi.

It was shown by the testimony, including that of the defendant himself, that at the time the shots were fired the defendant was there in the crowd that had assembled by reason of the collision and the altercation and that he was not to exceed twenty or thirty feet from the deceased. Under this evidence it is too plain for argument that as the defendant was where he eonld have committed the crime there was no question of alibi in the case. This was undoubtedly the view taken by the court, and also by counsel for the defendant, as shown by the foregoing excerpt from the record concerning the instructions.

But even if an instruction on that question of Law had been proper tinder the evidence, yet to entitle appellant to a reversal of the judgment upon that ground, he should have specifically called the attention of the court to the failure to give such an instruction, in the motion for a new trial, and as that was not done it is too late to raise the question for the first time in this court.

The case was well tried, and although there was the testimony of a number of witnesses which, if believed, would have required a verdict of not guilty, on the other hand there were witnesses who testified that they saw the defendant come from his house, with a pistol in his hand, and saw him fire the fatal shot. It was for the jury to pass upon the credibility of these witnesses and to determine the facts. There was evidence to support their verdict and in such case it is not the province of this court to disturb it. A diligent examination of the record has failed to disclose error and accordingly the judgment is affirmed.

Brown, P. J., and Ferriss, J., concur.


author: FERRISS, J.

text:
    THE STATE v. LEN RIDDLE, Appellant.
    Division Two,
    November 13, 1912.
    1. BURGLARY: Variance. To sustain, a conviction of burglary, it is not necessary to charge the ownership of the money, to steal which the indictment alleges defendant entered a certain house, and consequently it is not necessary to prove its ownership as charged. Hence, there is no fatal variance between the allegations of an indictment charging that defendant broke into and entered the dwelling house of Lizzie Edde with intent to steal therefrom “certain goods and chattels” and did' steal $8.15, “the money and property of the aforesaid Lizzie Edde,” and the proof, which shows that the said Lizzie was not. the owner of the money stolen. The gist of the offense of burglary is entering the house with intent to steal.

      ‘í. -KLEPTOMANIA: As Distinguished from Right-and-Wrong Test.: Instruction. An instruction telling the jury' that kleptomania is a defense to a charge of larceny or burglary, defining :kleptomania as an “irresistible impulse to steal,” should not be given. The true rule is the right-and-wrong test, which is that the person committing the act is unable, by reason of mental infirmity, to comprehend that the act is wrong, and therefore should be acquitted. Besides, in this case, the evidence is reviewed and is held! to be insufficient to establish kleptomania.
    Appeal from Hickory Circuit Court. — Hon. C. H. Shinher, Judge.
    Affirmed.

      J. W. Montgomery, W. L. Pitts and Rechow é Pufahl for appellant.
    (1) Tke court gave improper instructions on the part of tke State and refused proper instructions asked by tke defendant, a. Tkere was no evidence on wkick to base tke second instruction, but tke jury found kim not guilty of tke ckarge to wkick tkat kad reference, b. Tke fiftk instruction is entirely too general and is a dissertation on insanity ratker tkan an instruction, c. Defendant’s fiftk instruction skould kave been given as tkere was no direct or positive evidence tkat defendant entered into tke kouse and tke breaking and entering, if proven at all, was by circumstantial evidence, d. Defendant’s eigktk instruction skould kave been given, e. Defendant’s nintk instruction correctly declares tke law under tke evidence and skould kave been given. (2) Kleptomania is a well-recognized form of insanity, and wken tke evidence tends to sustain such a defense the instruction should clearly define that form of insanity and it is error not to do so. Looney v. State, 10 Tex. App. 520, 38 Am. Rep. 646; Erwin v. State, 10 Tex. App. 700; Harris v. State, 18 Tex. App. 287; Wright v. State, 4 Neb. 407; Hart v. State, 14 Neb. 572; Burgo v. State, 2G Neb. 689; People v. Sprague, 2 Park Crim. Rep. 43; Stevens v. State, 31 Ind. 485; Bradley v. State, 31 Ind. 492; Sawyer v. State, 35 Ind. 80; Grubb v. State, 117 Ind. 277; State v. Bartlett, 43 N. H. 224; State v. Felter, 25 la. 67; State v. Mewherter, 46 Iowa, 88. (3) That the instruction on insanity given by the court is entirely too general; see State v. Sharp, 233 Mo. 269, also authorities cited above.

      Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State; A. W. Stewart of counsel.
    (1) Instructions 2 and 4 are proper on larceny from a dwelling house, but as the defendant was acquitted of the charge of larceny he cannot be heard to eomplain of these instructions, even though they were erroneous. State v. Sprague, 149 Mo. 409. Instructions 5, 6 and 7 fully instruct the jury on the law applicable to the defense of insanity. State v. Porter, 213 Mo. 55. (2) The weight of evidence in a criminal case is for the jury, and- when there is evidence of defendant’s guilt, a demurrer thereto will be overruled. State v. Forrester, 63 Mo. App. 534; State v. Cunningham, 154 Mo. 176. (3) The jury heard the evidence and had the law before them as given by the court, and the verdict was responsive to the law and the evidence. State v. Wood, 137 Mo. 10. (4) It is immaterial to whom the property taken belonged, so far as concerns the burglary charge. State v. Hutchinson, 111 Mo. 257. On the charge of larceny the indictment charges that the money taken was the property of Lizzie Edde, while the evidence showed that it belonged to some other party. The defendant was acquitted of the charge of larceny, and cannot be hurt by this variance. The defendant could be acquitted of one charge and convicted of the other. State v. Sprague, 149 Mo. 409; State v. Wood, 137 Mo. 10; State v. Helms, 179 Mo. 281; R. S. 1909, Sec. 4528. (5). The chief defense in this case seems to be that of insanity. The issue was fairly submitted to an impartial jury and they found against his plea of insanity, and in the absence of an error of law impelling that verdict it must stand. State v. Barker, 216 Mo. 530; State v. Dreher, 137 Mo. 25 ; State v. Crowe, 202 Mo. 55; State v. Church, 199 Mo. 639; R. S. 1909, Sec. 5210.
   FERRISS, J.

— Defendant was convicted of burglary in the second degree, upon an indictment which charged him with breaking into and entering the dwelling house of Lizzie Edde, with intent to steal therefrom “certain goods and chattels.” The indictment also charged the larceny of certain money contained in the dwelling, the property of said Lizzie; but of this latter charge the defendant was acquitted.

The position taken by the defendant here appears from the following excerpt from the brief filed by his counsel:

“The defense is that the defendant, from all the facts in the ease, could not have been at the house at the time it is claimed to have been entered. That there is a fatal variance between the allegations in the indictment and proof in this, that it is alleged that he entered the house with the intent to steal eight dollars and fifteen cents, the money of Lizzie Edde. There is an absolute failure of proof that she had any such money in the house; but if he went in there to steal any money, it was the money of Lottie Hack. The jury acquitted him of any larceny.' The evidence shows that the defendant is a kleptomaniac, and even if he committed the offense as charged, should have been acquitted on that ground.
“The court refused proper instructions in the case, and gave improper instructions.”

It is unnecessary to set out the facts testified to concerning the burglary itself. It is not seriously contended that the evidence for the State does not sustain the finding of the jury as to the act itself. The case in this regard was fully established by the evidence for the State. The main defense is insanity. The facts concerning this claim will appear, in the opinion.

I. The charge of variance cannot be sustained. It was not necessary to charge the ownership of the money in the indictment, and consequently not necessary to prove it as charged. Proof that defendant entered the house, with intent to steal sustained this charge. The proof showed that the money taken, although in charge of Lizzie Edde, was the property of another. The gist of the offense is the entering the house with intent to steal. [State v. Tyrrell, 98 Mo. 354; State v. Hutchinson, 111 Mo. 263.]

II. It was claimed as a defense that when the defendant committed this burglary and larceny he was suffering from a form of insanity known as kleptomania, which counsel, in an instruction offered, defined as “an irresistible propensity to steal.” To sustain this position, evidence was introduced tending to prove that, some years prior to this transaction, defendant had been guilty of theft. The instances attempted to be shown were the following: During the absence from home of the owner, he stole a basket of eggs and traded them at a store, leaving at the store the basket, which was subsequently returned to the owner. Again, he hitched his team to the wagon of a relative, when the latter was away from home, and drove it to mill with three sacks of the relative’s wheat. The wagon was returned the next day by a brother of defendant. At another time he invited some persons to come over to his father’s house the next day to a turkey dinner. They came, and defendant furnished the turkey. On the night preceding the dinner a turkey was stolen from a brother-in-law of defendant, living seven miles distant. The remaining alleged theft was the taking by defendant of a colt from a pasture distant two miles from the house of the owner and trading it off to a person who lived five miles away. He drove the colt on the public road in day time, and stated to two witnesses that he had bought it. The testimony relative to these matters was introduced by defendant. There was no counter evidence. It cannot be said to have the force of a conviction after full trial. There is no evidence in the case of any insanity taint in defendant’s family, nor of any conduct on his part tending to show mental infirmity other than the bare facts of this case and the other above transactions. So far as the immediate case is concerned, defendant, two days before the burglary, was at the house of Lizzie Edde, and saw a bag containing money put away behind a picture on the wall. He entered the house when the dwellers therein were absent and the house locked, and took the money, some eight dollars, from this bag. It' was immediately charged that defendant was the guilty party, and subsequently, in company with his brother, he went to the home of Lizzie Edde, and returned the full amount, in the meantime having gone to a store and exchanged the money, which was in silver for bills. Two doctors who were in court at the trial, and heard the testimony, testified the opinion that, under the facts in evidence, defendant was a kleptomaniac.

One doctor qualified as follows: ‘ ‘ Q. I will ask you if you have in your practice and in your reading had occasion to study mental diseases as well as physical diseases? A. Yes, sir. Q. Have you had both practical and theoretical experience? A. Yes, sir.”

The other doctor said this: “Q. I will ask you if you have had practical experience in mental diseases, and also quite extensive reading on that subject? A. Well, so far as my personal experience is concerned, it has been very limited. I have read and studied the subject. Q. Has your reading been quite extensive? A. Not as much as in other branches of medicine, because we dó not have to deal with it very much.”

The court gave a general instruction, in approved form, on insanity, telling the jury they should acquit if they found that defendant was so deranged in his mental faculties “as to be incapable of understanding that said acts were wrong.” The only objection to this instruction is that it does not contain a proper definition of kleptomania.

The following instruction offered by defendant was refused:

“9. The jury are instructed that kleptomania is recognized as a form of insanity manifesting itself in an irresistible propensity to steal; and if you believe from all the facts and circumstances in evidence that the defendant is a kleptomaniac, then it is your duty to acquit him, although you may further believe from the evidence that he is guilty of some one or more of the offenses as defined in other instructions.”

The contention of defendant upon the instructions given and refused raises the question whether this court shall recognize the doctrine of “irresistible impulse,” as distinguished from the “right-and-wrong” test as applied to the particular act charged.. The difference, as recognized by the legal and medical authorities, seems to be this. In the latter case, the person committing the act is unable, by reason of menv tal infirmity, to comprehend that the act is wrong. The doctrine of “irresistible impulse” applies where the person knows that the act is wrong, bnt is driven by irresistible impulse to commit tbe act. Defendant insists tbat the court should have defined kleptomania, as requested, and given him tbe benefit of tbe “irresistible impulse” doctrine.

Tbis doctrine has received recognition by some courts and text-writers. [1 Whart. Crim. Law (10 Ed.), Sec. 44; 1 Bisb. Crim. Law (8 Ed.), Sec. 383b; State v. McCullough, 55 L. R. A. (Iowa) 378.] It is rejected in Texas. Tbe cases in tbat State on which defendant relies have been overruled by tbe later case of Lowe v. State, 44 Tex. Crim. Rep. 224, which adheres to tbe “right-and-wrong” test, and bolds tbat a general instruction laying down tbis test is sufficient where tbe defense is kleptomania. Tbe doctrine is repudiated in tbis State. Our former decisions bold to tbe “right-and-wrong” test. [State v. Pagels, 92 Mo. 300; State v. Soper, 148 Mo. l. c. 237; State v. Dunn, 179 Mo. l. c. 115.] We are not disposed to overrule these former decisions. A full discussion of tbis subject, setting forth tbe rulings in thé several States, is found in Vol. 3, pp. 448-55, Wittbaus & Becker’s Med. Juris.

Knowledge of tbe right and wrong of tbe particular act charged being tbe only test, it is obvious tbat tbe instruction given fully covers tbe point, and tbat of defendant was properly refused. Tbe jury found tbat tbe defendant was sane, and tbis finding is fully sustained by tbe record, which, in our judgment, is barren of any substantial evidence to show kleptomania or any other form of insanity.

III. It is unnecessary to go over tbe instructions given and refused, in detail, or to discuss defendant’s claims regarding same. Those given were in proper form and covered every phase of the case. Those offered by defendant, and refused, were in part based upon a wrong theory of tbe case as to variance and insanity, matters already covered in this opinion. Others offered were fully covered by those given.

Defendant, who was ably defended, was clearly guilty; he had a fair and most favorable trial. There is no reversible error in the record. The judgment is, therefore, affirmed..

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


author: BLAIR, C. PER CURIAM.

text:
    THE STATE v. FELIX SKIBISKI, Appellant.
    Division Two,
    November 13, 1912.
    1. CONFESSION: Corroboration: Proof of Corpus Delicti. Where the confession of a defendant in a criminal prosecution is in evidence, full independent proof of the corpus delicti is not, required. If there is evidence of corroborating circumstances which tend to prove the corpus delicti and which correspond with circumstances related in the confession, both the circumstances and the confession may be considered in determining whether the corpus delicti is sufficiently proved in a given case. It is for the jury to say whether the corroborating facts and the confession, considered together, exclude from their minds all reasonable doubt of the defendant’s guilt.
    2. LARCENY: Paying Owner for Thing Stolen: Evidence: Motion to Strike Out. In a prosecution for stealing a steer, testimony was introduced showing that the defendant, after being accused of the theft, promised to pay for the steer; that he afterwards asked for, more time and later made his promise more definite; and that finally he sent the agreed sum to the owner. After the close of the evidence, defendant’s counsel moved to strike out all testimony concerning the payment. Held, that the fact of payment was admissible, and if there was anything objectionable admitted in that connection the motion should have been limited to such objectionable matter. Moreover, motions, after the close of the evidence, to strike out testimony elicited by and responsive to pertinent questions, cannot be regarded with favor.
    3. -: Proof of Venue: Judicial Notice. In a prosecution for stealing a steer, where the testimony of the owner is reasonably susceptible of the interpretation that the witness meant to say the taking of the steer was in Ripley county, and it appears that the owner lived about seven miles southeast of the county seat while the accused lived a mile and a half from him, the boundaries of Ripley county may be judicially noticed, as ?na,y the further fact that a point eight miles east of the county seat is within these boundaries, and there was sufficient proof of the venue to authorize the jury to find the taking to have been in Ripley county.
    Appeal from Ripley Circuit Court.1 — Eon. J. G. Sheppard, Judge.
    Affirmed.

      Charles B. Butter for appellant.
    (1) Before a conviction can be sustained in this case the. corpus delicti must be proved beyond a reasonable doubt, every essential element of the offense charged must be proved, and it must be proved.beyond a reasonable doubt that the offense was committed by defendant.' • 6 Cyc. 240; McClain, Crim. Law, p. .618, Sec. 612; 12 Cyc. .488 (11). . (2) The corpus delicti cannot be proved by the uncorroborated confession of the defendant.- 25 Cyc. 120. (3) The venue must be proved as any other fact. It cannot be proved by inference alone. There must be something ' substantial upon which to base the inference.

      Elliott W. Major, Attorney-General, and Campbell Cummings, Assistant Attorney-General, for the State.
    (1) ■ It is sufficient answer to appellant’s' claim of error in overruling the motion to strike out all testimony relative to payment for the steer, that appellant had objected to the introduction of .the evidence at the time it was offered, but had failed to save an exception to the overruling of his objection, and thereby waived the error, if any. He was in' the same position as if he had allowed evidence to .go in without objection and at the close of the State’s case move to strike it out when, of course, it was too late. 12 Cyc. 565; State v. McAfee, 148 Mo. 370; State v. Rapp, 142 Mo. 443; State v. Marcks, 140 Mo. 656; State v. Forsha, 190 Mo. 296; State v. Finn, 199 Mo. 597; State v. Pyles, 206 Mo. 626; State v. Arnewine, 136 Mo. 130. It could not be considered prejudicial error, as it was waived at the time made. A motion to strike out incompetent evidence should be promptly made. Waiting until after the other side has closed its case, or until after other questions have been asked, has been held to constitute a waiver. 12 Cyc. 566; Seamster v. Staté, 74 Ark. 579. (2) The venue need not be proved by direct facts, but may be inferred from facts in evidence. State v. Grow, 235 Mr. 307. Moreover, the venue was amply proved. The appellate court will take judicial notice of the geographical location of the courthouse at the county seat, and the county seat’s location as to the county limits. Moler v. Whisman, 243 Mo. 571.
   BLAIR, C.

— Appellant was convicted of stealing a steer in Ripley county and sentenced to two years in the penitentiary.

The evidence for the State tended to show that' in the fall of 1909 Henry Cooper owned some cattle which he was permitting to run on the range about his and appellant’s farms and among them was a large, pale red steer, about three and one-half years old, which Cooper had raised and the habit of which, with the other cattle, was to return frequently to Cooper’s place where the cattle were salted and otherwise looked after. About November 20, 1909, the steer disappeared and, though search was made for it, has not since been found.

In October, 1909, appellant sold all his cattle preparatory to leaving the farm that winter, but in the latter part of November, 1909, Mr. and Mrs. MeCune, who lived in the neighborhood, had occasion to pass appellant’s place and observed in a little field belonging to appellant, and some sixty yards from his honse, three head of cattle, one of which the evidence tends to show was Cooper’s missing steer. The McCunes, happening to see appellant as they passed his house, said to him they noticed he had bought some cattle. Appellant said “No” and started down toward the field saying the cattle probably broke in. The McCunes were unaware of Cooper’s loss and gave the matter no further thought. There was evidence that about this time, in the fall of 1909, the exact date being 'left uncertain, appellant sold in Doniphan a freshly removed hide. Thereafter and prior to July, 1910, Cooper received letters which led to his accusing appellant. July 16, 1910, appellant went to Cooper’s farm and told him he had heard of the accusation. Cooper then told appellant his wife and son had. written letters charging him with putting up the steer and then, after the occurrence of the Mc-Cnne incident, butchering it. Appellant first entered a denial, but finally admitted the truth of the charge, saying his wife “gave it. away on him because he wouldn’t live in St. Louis.” He voluntarily promised to pay for the steer on September 16, 1910, the agreed amount being thirty-five dollars. September 16, appellant returned with his son, a lad of twelve, to Cooper’s and asked that he he allowed more time in which to make payment. Subsequently appellant met Cooper in Doniphan and told him that as soon as he received an expected commission from the sale of land for one O’Neal,, he would pay. In a few days the lad who had accompanied appellant on his second visit to Cooper’s brought to Cooper thirty-five dollars. Cooper testified positively that' the steer had been taken and killed. Appellant attempted to explain the sale of the hide in the fall of 1909 by testifying it was from one of his cows which died from injuria resulting from her being struck by a train. The State’s evidence, if true, quite clearly shows this explanation to be false; it appearing the cow referred to was killed and the hide removed from the carcass in April, 1909. Appellant denied taking the steer and denied admitting he had done so. There was some testimony to the effect that his reputation had previously been good.

I. It is insisted there is no evidence to support the verdict. The argument is that there is no sufficient corroboration of the confession to warrant a conviction.

The rule in this State has long been that full proof of the corpus delicti, independent of the confession, is not required. If there is evidence of corroborating circumstances which tend to prove the corpus delicti and correspond with circumstances related in the confession, both the circumstances and the confession may be considered - in determining whether the corpus delicti is sufficiently proved in a given case. [State v. Patterson, 73 Mo. l. c. 712, 713; State v. Coats, 174 Mo. l. c. 417; State v. Wooley, 2Í5 Mo. l. c. 672; State v. Knowles, 185 Mo. l. c. 176, 177; State v. Henderson, 186 Mo. l. c. 484; State v. Young, 237 Mo. 170.] A like, or even more liberal, rule prevails in other jurisdictions. [Sullivan v. State, 58 Neb. 796; Bergen v. People, 17 Ill. 426; Ryan v. State, 100 Ala. 94; State v. Westcott, 130 Ia. 1; People v. Jones, 123 Cal. 65; People v. Jaehne, 103 N. Y. 182; People v. Brasch, 193 N. Y. 46.]

In the light of this rule it clearly appears the court would not have been justified in taking, the case from the jury. The disappearance of the steer, appellant’s possession of it, the fact that it has never since been seen though search has been made, the falsity of appellant’s explanation as to the sale by him of the “green” hide in the fall of 1909, his voluntary promise to pay for the steer and the fact of payment, coupled with the confession, warranted the submission of the case, even though Cooper’s,positive statement that the steer was taken and killed, be suspected of being a mere conclusion. Of course the fact the extraneous circumstances proved pointed also to appellant as the criminal agent did not lessen their tendency to establish the corpus delicti. Whether the evidence tending to prove the facts stated was true was for the jury to determine as it was also their province, in view of what has been said, to say whether the corroborating facts and the confession, considered together, excluded from their minds all reasonable doubt of defendant’s guilt. The instructions not having been incorporated in the transcript it must be assumed the trial court gave the jury the law of the case fully and fairly and properly cautioned them as to the extent to which corroboration of the confession was necessary. The conflict in the evidence was séttled by the verdict.

II. No exceptions were saved during the reception of the testimony, but after the close of the evidence appellant’s counsel moved to strike out all testimony concerning the payment of the thirty-five dollars to Cooper. The fact of payment was, in the circumstances, admissible (State v. Furr, 121 N. C. l. c. 609) and if there was anything objectionable admitted in that connection, the motion should have been limited to such objectionable matter. It was too broad. In addition, motions, after the close of the evidence, to strike out testimony elicited by and responsive to pertinent questions cannot be regarded with favor. There was no abuse of discretion in this case.

III. It is contended the venue was not proved The testimony of. Cooper, while somewhat ambiguous; is yet reasonably susceptible of the interpretation that, the witness meant to say the taking of the steer was in Ripley county. In addition, it appeared Cooper lived about seven miles southeast of Doniphan and appellant lived one and one-half miles from Cooper. The boundaries of Ripley county may be judicially noticed, as may the further fact that a point eight miles east from Doniphan, the county seat, is within these boundaries. [State v. Pennington, 124 Mo. l. c. 391, 392.] There was sufficient proof of the venue (State v. Gow, 235 Mo. l. c. 325) to authorize the jury to find the taking to have been in Ripley county and the instructions doubtless required them so to find before returning a verdict of guilty. The judgment is affirmed.

Roy, G., concurs.

PER CURIAM.

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

All the judges concur.