text:
      W. W. BRIDGES v. HOLDOUT MINING COMPANY, Appellant.
    Division Two,
    June 28, 1913.
    SPECIAL LAW: Docket Fee: Applicable to One County. A law providing that “in all counties in this State which now constitute or may hereafter constitute a separate judicial circuit with two judges of the circuit court and having no criminal court, the circuit clerk shall tax and collect a docket fee of three dollars in each case filed in said court,” except in criminal cases and tax suits, is a special law and unconstitutional; although it contains language usually found in general statutes, in fact it can apply to'only one county, and was meant to so apply.
    Appeal from Jasper Circuit Court. — Hon. David E. Blair, Judge.
    REVERSED AND REMANDED.

      Franh L. Forlow for appellant.
    (1) The only question to be determined in this cause by the court is, whether or not the trial court had the right to require the defendant .to pay into the office of the clerk of the circuit court a -filing fee of three dollars, before the defendant should have the right to a trial of its cause on appeal to said court, for the defendant had fully performed every other requirement of the law to perfect its appeal, except to pay this fee of three dollars on or before the second day of such October term to which the appeal was returnable. It is conceded, that if the trial court had the right to exact the payment of this fee from the defendant, then the defendant did not perfect its appeal so far as paying it to the clerk of the court before the second day of the term. The right of the circuit court to affirm the judgment of the justice where the appellant fails to pay this so-called fee on or before the second day of the term to which, the appeal is returnable is not questioned, if the exacting of the fee is valid under the law. (2) The appeal in this case was taken to the Supreme Court before this court handed, down the opinion in the case of Hays v. Mining and Milling’ Company, 227 Mo. 288. In this case it is held by the Supreme Court that the act of the Legislature approved March 19, 1901 (Laws 1901, p. 115), undertaking to tax litigants in the circuit court three dollars which was to be paid into the county treasury was unconstitutional and void. (3) Then if the law in this State is correctly declared in the Hayes case, it follows that the trial court in this case was wrong, in holding that the defendant had not paid the filing fee to the clerk in time, and for that reason affirming the judgment of the justice of the peace, and refusing to set aside such judgment of affirmance upon motion duly and timely made by the defendant. And in refusing to strike out the motion of plaintiff on the motion by defendant. (4) The act in question is violative of the said section and article of the Constitution in this: That it is a special and local law relating to cases where a general law could have been made applicable; that it is a special and local law regulating the affairs of counties and regulating the practice and jurisdiction in judicial proceedings.

      Thompson & Thompson and E. W. Blair for respondent.
   BROWN, P. J.

Action for personal injuries. From a judgment for plaintiff defendant appeals.

The issue tendered by this appeal does not directly relate to the merits of the above entitled cause, but grows out of the action of the circuit court of Jasper county in affirming the judgment of a justice of the peace of that county on the ground that defendant, who was also the appellant below, neglected to pay a docket fee of three dollars, as required by an act of the General Assembly of 1901, now section 4053, Eevised Statutes 1909.

The appellant, by proper procedure, challenges the constitutionality of section 4053, supra, on the ground that it is “in conflict with section 53, article 4, of the State Constitution; that it is a special and local law, relating to cases where a general law could have been made applicable.”

Said section 4053, supra, reads as follows:

“In all counties in this State which now constitute or may hereafter constitute a separate judicial circuit with two judges of the circuit court and having no criminal court, the circuit clerk shall tas and collect a docket fee of three dollars in each case filed in said court, which fee shall be collected at the time of filing such case, and shall be paid by the party instituting such suit or filing a transcript on certiorari or appeal. The amount of such docket fee shall be taxed in favor of the party paying the same as other costs in said case; Provided, that nothing in this section shall be construed to require the payment of said docket fee in any criminal proceeding or in prosecutions for a violation of any municipal ordinance; and provided further, that in suits for delinquent taxes, the prepayment of said docket fee shall not be required, but the same shall be taxed and collected as other costs in such cases.”

• Section 4054 provides that the docket fee to be collected under the foregoing section shall be paid into the county treasury.

Eespondent has not favored us with any brief.

The appellant concedes that the sole issue presented here for reversal is whether or not the above statute is a local or special law enacted in violation of the above quoted provision of the ' Con- stitution. It seems that the framers of our 0IAanic law were especially appre-hensive that future legislatures of the State would undertake to harass the people with obnoxious special or class legislation. After enumerating numerous kinds of special and local laws which should not be enacted they inserted the following provision in the Constitution:

“In all other cases where a general law can be made applicable, no local or special law shall be enacted; and whether a general law could have been made applicable in any case is hereby declared a judicial question, and as such shall be judicially determined, without regard to any legislative assertion on that subject.” [Par. 32, sec. 53, art. 4, Constitution of Missouri.]

The clause of the Constitution last quoted is significant. We cannot suppose that its authors were endowed with the gift of prophecy, but they were undoubtedly men of splendid foresight.

The precise issue presented by this appeal has recently been adjudicated by Division One of this court. [Hays v. Mining & Milling Co., 227 Mo. 288.] In that case the same contention asserted by the appellant in this case was sustained.

When the litigation in a county or a city is so great as to entail unusual expense on such county or city there may arise some justification for requiring the payment of a docket fee to such county to lighten the burden of taxpayers therein. No such exigency seems to have been in the minds of the members of the General Assembly when section 4053, supra, was enacted. Where there arise so many criminal prosecutions in a community that it becomes necessary to establish and maintain a separate criminal court to dispose of such cases, the expense of such criminal cases is likely to create a greater burden upon the city or county treasury than where the litigation is mostly confined to civil cases. However, the law in judgment singles out the class of counties which have no criminal courts, and where we may infer there would he the least excuse for compelling litigants to pay increased court costs, and requires them to pay a docket fee of three dollars towards the support of the county government.

This law seems to have been adroitly framed so that it would never apply to but few and possibly only one county in the. State. In that respect it is much like section 3261, Revised Statutes 1899, which latter section was intended to apply only to cities of a certain size “lying wholly in one township,” and which law was declared unconstitutional in State ex rel. Kinsey v. Messerly, 198 Mo. 351.

When a vicious law is presented to the General Assembly, which would, if enacted, become applicable to several counties, such vicious law is most likely to meet with sufficient opposition to cause its defeat; but when a law of that character contains provisions which prevent it from becoming applicable to more than one county, it is most likely to be enacted without careful consideration by the legislators. This well-known fact probably furnished the reason for the constitutional inhibition .against local or special laws where general laws can be made applicable. The fact that a law general in its language will not apply to more than one county does not necessarily render it invalid; but when language.is inserted in an enactment which shows an unmistakable intention to restrict its operation to one or more counties, and there exists no sound reason for such restricted application, then it falls within the prohibition of section 53, article 4, Constitution of Missouri.

The fact that the law now in judgment contains language.usually found in general statutes, such, for instance, as the words “in all counties in this State which now constitute or may hereafter constitute a separate judicial circuit” does not save it from the vice which adheres to special or local laws. The provisions which restrict its operations to those counties having no criminal court brands it as a special law and vitiates the whole section.

The law now under consideration is so framed as to have the appearance of a general law, but in its application it has all the elements of a special law. We, therefore, concur in the opinion of Division One (Hays v. Mining & Milling Co., 227 Mo. 288, 1. c. 300), and hold it invalid as a special law enacted where a general law could have been made applicable.

It will he observed that in the case of Hays v. Mining & Milling Co., supra, the invalidity of the law now in judgment was attacked on several grounds not urged in this case. We express no concurrence or dissent as to any of the views stated in the Hays case, supra, except such as relate to the sole issue presented in this appeal.

From-what we have said it follows that the judgment of the trial court affirming the judgment of the justice court for a failure to pay a docket fee must be reversed and the cause remanded for a trial de novo in the circuit court. It is so ordered.

Walker and Faris, JJ., concur.


source: Caselaw Access Project

author: WILLIAMS, C. PEB CURIAM.

license: Public Domain

text:
    BENJAMIN B. SIMS et al., Appellants, v. SAMUEL B. BROWN.
    Division Two
    June 28, 1913.
    1. CONSTRUCTION OF WRITTEN INSTRUMENTS: Intention: Gathered from Four Corners. The modern rule regarding the construction of instruments is that the intention of the grantor shall govern. That intention may he expressed anywhere in the instrument, and in any words, the simpler and plainer the better, that will impart it, and the court will enforce it, no matter in what part of the instrument it is found.

      2. -: -: -: Deed or Will. In a deed a present estate oí interest is passed, while in an instrument testamentary in character no part of the title treated is to pass until the death of the grantor. When the grantor’s intention appears to be that no estate or interest is to pass until his death, then the instrument is testamentary, and if not executed in the form and manner required of a will it is of no force or effect for any purpose.
    3. -: -: -: Deed of Express Trust: Revocation by Later Deed. An instrument purporting to deal in some manner with the title to certain land, in which are found the words, “and I do hereby give, grant and relinquish,” “the land hereby given and granted,” “the land hereby given, granted and disposed of,” and “herein disposed of,” and wherein the grantor requests that the trustee named, “at any time after my decease,” “shall select and sell eighty acres of the land,” “and it is also understood in regard to the land hereby given, granted and disposed of, that I reserve the right ... to sell or dispose of any or all of said land,” is held to be a deed creating an express trust with power of revocation, and not a will. A later deed conveying a part of the same land acted as a revocation of the trust as to that particular tract, divesting whatever title or interest the trustee and the destuis had, and passing the complete title to the grantee in the later deed.
    4. EVIDENCE: Deed: Description of Land: Reference. Evidence held insufficient to describe land conveyed by reference in a trust debd.
    Appeal from Chariton Circuit Court. — Hon. John P. Butter, Judge.
    Affirmed.

      B. B. Dysart and Ben Eli Guthrie for appellants.
    (1) By her deed of February 25, 1862, Cathar-ine Weldon parted with her title to the real estate in controversy, and Catharine Brown took a life estate, and the plaintiffs took the remainder in fee, • as the bodily heirs of Catharine Brown. G-ray v. Ward, 234 Mo. 297; Huntor v. Patterson, 142 Mo. 310; Hall v. French, 165 Mo. 430; Clarkson v. Clarkson, 125 Mo. 381. (2) The attempted reservation is inconsistent with and 'repugnant to the granting clause in said deed and is destructive of the grant, and must be rejected in the construction of the deed. Utler v. Sid-man, 170 Mo. 285; Gannon v. Pank, 200 Mo. 75; Ress-ner v. Philips, 189 Mo. 515; Cornet v. Cornet, 248 Mo. 184. (3) To give effect to the reservation would he to nullify the deed. One cannot sell property and keep it at the' same time. In effect she says “although I have sold the property to A, I reserve the right to sell it to B, if I so desire.” When she sold the property by a subsequent deed to Benjamin Brown, she had not regained the title theretofore made to Catharine Brown and her bodily heirs, and hence her subsequent deed to Benjamin Brown was a nullity. Where a grant has been made in the body of the deed vesting the title, any subsequent provision in the deed, inconsistent with and repugnant to the granting clause, will be ignored, and especially so if the reservation works a dstruction of the grant. See cases under point 2; Gray v. Ward, 234 Mo. 291; Plaines v. Weirick, 155 Ind. 548; Wilkins v. Norman, 139 N. C. 40. “A grantor cannot destroy his own grant.” Maker v. Lazell, 83 Me. 562. (4) It is evident that this attempted reservation is neither a condition precedent, nor a condition subsequent, nor is it operative as a defeasance. There is no provision in the deed for a revertor. Studdard v. Wells, 120 Mo. 25'; McAnaw v. Tiffin, 143 Mo.- 667; Miller v. Quick, 158 Mo. 495.

      Hammett & Howard for respondent.
    (1) The language of the instrument in question being set up by plaintiffs as the foundation of their claim and title stamps it as testamentary in character and an attempted disposition of certain property by will on the part of Catharine Weldon. No particular form is requisite to constitute a valid devise; an instrument may thus operate which is to take effect after the death, of the. maker, although its general form is that of a deed. Miller ,v. Holt, 68 Mo. 587. The instrument in question was an attempted testamentary disposition of the property. It has none of the features of the deed except the terms grant and relinquish and scroll for a seal and the acknowledgment and filing for record while all its other features are clearly that of an attempted last will and testament. The mere fact that the instrument was acknowledged and recorded does not change its character. Murphy v. G-abbert, 166 Mo. 596. If the intent was clear upon the face of the instrument that the parties designed-same to operate as a deed, notwithstanding its form, the courts regarding more the substance than the form, would give effect to the intent, but where such intent is not apparent and the form of the instrument is that of a will, it must be regarded as a will.- Miller y. Holt, 68 Mo. 588. An instrument of writing to be good as a deed must pass a present interest in the property attempted to be conveyed, and where it takes effect and becomes operative alone upon the death of the grantor, it is testamentary in character and insufficient as a deed. The test to determine whether an instrument is a deed or will is whether it is to take effect in praesenti or after the death of the maker. Murphy v. Gabbert, 166 Mo. 596. The instrument in the Murphy case, was acknowledged. (2) It is essential to the validity of a deed conveying an estate of freehold of inheritance to commence in the future, that the right to the future estate conveyed vests in the grantee immediately, though possession be deferred. Aldridge v. Aldridge, 202 Mo. 572. (3) If the instrument, at the instant of its delivery, if delivered, did not carry to the grantee the estate described subject to be defeated on the happening of a contigency named, it was not a deed. If it was a mere gift to take effect only on the death of the maker, then it was ineffectual for that purpose if not exacut-ed in the manner prescribed by law for the execution of a will and the instrument is invalid and there is-no foundation for plaintiff’s claim of title. Aldridge v. Aldridge, 202 Mo. 565. (4) There is no proof in this case on the part of plaintiffs that the instrument of writing was ever delivered to the grantee whoever it was, Rachel Catharine Brown or Drucilla MitchelL Deeds to pass title must he delivered. Miller v. Holt, 68 Mo. 586.
   WILLIAMS, C.

This is an action under section '2535, Revised Statutes 1909', to quiet title to an un-Quieting 1 e' divided one-sixth interest in the southwest quarter of section 2, township 55, range 14, containing 160 acres more or less, in Randolph county, Missouri. The' suit was originally begun in the circuit court of Randolph county, and was afterwards by agreement of the parties transferred to the circuit court of Chariton county, where trial was held, resulting in a judgment finding that defendant is owner of said land and that plaintiffs have no title or interest therein. Plaintiffs thereupon appealed to this court.

There is little dispute over the facts. Most of the evidence adduced was documentary in form. One Catharine Weldon was the common source of title. Plaintiffs (representing one-sixth of the bodily heirs of Catharine Brown) claim to have acquired their title through an instrument, which they claim is a deed, executed February 25, 1862, by said Catharine Weldon to /said Catharine Brown and another. Defendant claims title through a deed dated May 4, 1868, executed by said Catharine Weldon to one Ben C. Brown, and by mesne conveyances from said Brown to the defendant, conveying the land in controversy.

The determination of the matters involved in this suit depends upon the construction given to the above-mentioned instrument, dated February 25, 1862, from Catharine Weldon to Catharine Brown and another. It is therefore necessary that said instrument be copied in full. It is as follows:

“Know all men by these presents, that I, Cath-arine Weldon, of the county of Randolph and State of Missouri, knowing the uncertainty of life and the certainty of death, and being desirous of making such disposition of my earthly effects as I think right and proper, do hereby make the following disposition of the same (to-wit) for and in consideration of the love and affection I have for my daughter Catharine Brown, wife of Ben Brown, and for the further consideration of the fact of the said Catharine Brown and Ben Brown, her husband, having taken care of me in my old age, I do hereby give, grant and relinquish to my said daughter Catharine Brown and the heirs of her body at my death, the following described slaves, and all their increase, or as many ^ of them as may then be living and belonging to me, to-wit: Mary Catherine, aged twenty-eight years, Martha lone, aged thirteen, Mary Susan, aged sis, Hager, aged three, Mary, aged fourteen, and Betty, aged twelve. And also all the household and kitchen furniture, and stock of every kind and description of which I may die possessed. And also all the money, cash, notes or other evidences of debt of every kind. All for the benefit of my said daughter, Catharine Brown, and the heirs of her body, with only this reservation (to-wit) : The said Catharine Brown is to take care and well provide for my servant Hannah during her lifetime. And if it should become necessary, from any cause, for me to sell or otherwise dispose of any of the slaves above enumerated, during my lifetime, I reserve the right to do so. And I do also hereby give, grant and relinquish to my other daughter, Drucilla Mitchell, for the love and affection I have for her the following'described lands in Randolph county, Missouri, under however, the following restrictions (to -wit): I do hereby appoint and request my son-in-law Ben Brown to act as trustee for my said daughter Drucilla Mitchell. And he is requested that at any time .after my decease, he is to select any part of said land, not over eighty acres, and sell the samé either publicly or privately, and pay over at once the proceeds thereof to my said daughter absolutely, for the use and benefit of her and her bodily heirs, and the remainder of said land he is to sell at such time and place as he may think proper, and on such terms as he may think most advantageous. And he is to pay semi-annually the interest arising from said sale of the land to my said daughter Drucilla Mitchell for the benefit of her and her bodily heirs, but if the said Dru-cilla Mitchell should die before I do, then only the proceeds of the eighty acres above spoken of is to go to the heirs of her body, and the proceeds of the balance of said land is to be paid to my daughter Cath-arine Brown for the sole use of herself and her bodily heirs. And- it is also my wish that the death of my said daughter Drucilla. Mitchell, the - principal for which said except the eighty acres aforesaid, shall be paid to my said daughter Catharine Brown for the-use and benefit of herself and bodily heirs. The land hereby given and granted to my said daughter for the benefit of herself and bodily heirs, upon the terms and conditions as therein set forth, include all the land purchased by me from William King and wife, except the portion of said land I have heretofore sold and conveyed to Ben Brown and wife by deed which is of record in the office of the clerk of the circuit court of Randolph county, in Book M, pages 433 and 434, being all except 320 acres. And it is also understood in regard to the land hereby given, granted and disposed of, that I reserve the right, if I should so desire or necessity might require, I can and reserve the right to sell or dispose of any or all of said land, otherwise than herein disposed of. In testimony whereof I have hereto set my hand and seal this the 25th day of February, A. D. 1862,

her
CATHERINE x Weldon (Seal), mark
■“Witness—
“John Finnie his “Simeon x Hunt.” mark

The above instrument was duly acknowledged and ,was recorded on the 26th day of February, 1862, in the recorder’s office of Eandolph county, Missouri. If said Catharine Brown, by virtue of said instrument, acquired unconditionally a life estate in the land in suit, with remainder over to her bodily heirs, then plaintiffs are entitled to an undivided one-sixth interest in the' land. If title did not so pass, then the title to the entire 160 acres in suit is in defendant by virtue of the other conveyances above mentioned. After introducing in evidence the above copied instrument, plaintiffs introduced in evidence a deed dated February 21, 1848, from William King and wife to said Catharine Weldon, conveying to her the land in controversy and other lands.

Witness John W. Brown testified- for plaintiffs .that the land involved in this suit was a part of 640 acres which said Catharine Weldon purchased from William King. It was admitted by the.parties that “there never was any exercise of the powers or duties attempted to be imposed by the terms of the instrument •executed by Catharine Weldon, dated February 25, 1862, by the trustee therein named, or by any other person.”

I. Appellants contend that the above copied instrument' vested in Catharine Brown a life estate, with remainder over to her bodily heirs, ancl t]iafc last claase thereof, reserv-i o g to the grantor the right to sell said land, is repugnant to the grant, and therefore void. Respondent’s position is that the instrument is testamentary in character, and that therefore no title passed.

For the present, we will assume that the instrument in question undertook to deal with the land now in controversy, reserving that question, however, for discussion later in this, opinion.

The early rule of construction of instruments was that the first words in a deed, and the last words in a will, would control. But that rule has been discarded as not being the safest route by which to arrive at the grantor’s intention, and the modern rule in that regard is as stated by Judge Marshall in Utter v. Sidman, 170 Mo. 284, 1. c. 294:

“The intention of the grantor as gathered from the four corners of the instrument is now the pole star of construction. That intention may be expressed anywhere . in the instrument, and in any words, the simpler and plainer the better, that will impart it, and the court will enforce it, no matter in what part of the instrument it is found.”

And if possible without violating any of the legal proprieties, that construction should he given the instrument which will give life to the whole and develop consistency rather than inconsistency between its parts. One of the important distinctions between a deed and an instrument testamentary in character is that in a deed a present -estate or interest is passed, while in an instrument testamentary in character no part of the title treated is to pass until the death of the grantor. Whenever the instrument discloses the grantor’s intention to be that no estate or interest is to-pass until the death of the grantor, then it is considered to be testamentary in character, and comes within the rule governing the passing of title by will; and if not executed in form and manner required of a will it is of no force or effect for any purpose. [Murphy v. Gabbert, 166 Mo. 596; Aldridge v. Aldridge, 202 Mo. 565; Givens v. Ott, 222 Mo. 395, 1. c. 411; Terry v. Glover, 235 Mo. 544, 1. c. 551-2.] Examining the present instrument, we notice that the grantor uses the following expressions: “And I do hereby give, grant, and relinquish,” “the land hereby given and granted,” and in the last sentence thereof; “the land hereby given, granted and disposed of,” and “herein disposed of.” It will be conceded that the above expressions, -if not overcome by other languge in the. instrument, are sufficient to show an intention to pass a present estate or interest. The only other expressions in the instrument which would have any tendency to overcome the meaning and intent of the above words are the following: The grantor requests that the trustee, “at any time after my decease,” “shall select and sell eighty acres of the land,” and lastly states, “and it is also understood in regard to the land hereby given, granted and disposed of, that I reserve the right, if I should so desire or necessity might require, I can and reserve the right to sell or dispose of any or all of said land otherwise than' herein disposed of.” The phrase, “at any time after my decease,” when fairly construed, means nothing more than a postponement of the 'time when the trus- tee is to take possession of the land for the Purposes of the trust. The fact that the enjoyment of the estate is postponed & ¿¿ite does not change the instrument, otherwise a deed, to an instrument testamentary in its nature. Such a provision is authorized by the statute first enacted in 1845 (section 9, p. 220, Revised Statutes 1845), and brought forward in each subsequent revision, being now section 2876, Revised Statutes 1909. [O’Day v. Meadows, 194 Mo. 588; Aldridge v. Aldridge, 202 Mo. 565, 1. c. 751-572.] If, then, the intention to convey or pass a present estate to the trustee is to be overcome, it must be hy the words which reserve to the grantor the right to dispose of the land by sale. But this provision, when properly construed, is but a reservation to the grantor of the power to revoke the trust which she undertook by the instrument to create.' The instrument when considered from its four corners shows a clear intent to create a voluntary express trust or settlement in favor of said Catharine Brown and her bodily heirs with reference to all of said land, except the eighty acres conveyed in trust to the other daughter, with a power of revocation reserved to the settler. Such reservation of power is not inconsistent with the creation of a voluntary trust. “The power of revocation may, however, be reserved, and is perfectly consistent with the creation of a valid trust.” [28 Am. and Eng. Ency. Law (2 Ed.), p. 900; 39 Cyc. 92 (c).] In fact, courts of equity have always looked with suspicion upon voluntary trusts of settlements which do not reserve a power of revocation.[Garnsey v. Mundy, 24 N. J. Eq. 243; 1 Perry on Trusts and Trustees (6 Ed.), sec. 104, footnote 3, p. 130.]

The case of Nichols v. Emery, 109 Cal. 323, is a well considered case on the general matters involved here. In that case the owner of real estate conveyed the same to a trustee to make sale of the land within ten months after the grantor’s death, and to distribute the proceeds as in the deed directed. The deed also reserved to the grantor the power to sell the property. The grantor died without making sale of the property, and a contest arose as to whether the instrument was a deed or an instrument téstamentary in character. It was held that the instrument conveyed in praesenti an estate to the trustee, and that the power of revocation contained therein did not destroy its character as a deed creating a voluntary express trust, nor make the instrument a will or an instrument testamentary in character. The court said:

“Indeed, this power of revocation was strongly favored in the case of voluntary settlements at common law, and such a trust without such a reservation was open to suspicion of undue advantage taken of the settler. [Lewin on Trusts, *75, 76; Perry on Trusts, see. 104.]
“We think, however, that the circumstances of the reservation of power to revoke, and the limitation of the trust upon the life of the settler, have operated to mislead the learned judge of the trial court. If the life selected had been that of a third person, and if no revocatory pcwer had been reserved, no one would question but that a valid express trust had been created. But the fact that the designated life in being was the settler’s could not operate to destroy its validity, for he had the right to select the life of any person as the measure of duration. And the fact that he reserved the right to revoke did not impair the trust, nor affect its character, since title and interest vested subject to divestiture only by revocation, and if no revocation was made, they became absolute.
“A man may desire to make disposition of his property in his lifetime to avoid administration of his estate after death. Indeed, in view of the fact, both patent and painful, that the fiercest and most expensive litigation, engendering the bitterest feelings, springs up over wills, such a desire is not unnatural. And when it is given legal expression, as by gifts absolute during life, or by gifts in trust during life, or voluntary settlement, there is manifest, not only an absence of testamentary intent, but an absolute hostility to such intent.”

In the case of Markwell v. Markwell, 34 Beav. 12, it was held, where the settler provided in the voluntary trust document or deed tliat the trust estate was to be subject to such debts as be contracted during life, that the trust was defeated by debts made by the settler, even though the debts were in the form of voluntary bonds given for the purpose of defeating the settlement.

In Gaither v. Williams, 57 Md. 625, where the grantors of settlers, in creating a voluntary trust, reserved the power to-revoke the same, it was held that the sale under a subsequent mortgage executed by the settlers on the trust property worked a revocation of the trust on the land and passed the title thereto, and that it was not necessary that the mortgage should have referred to the power of revocation reserved in the trust deed.

In Ewing v. Shannahan, 113 Mo. 188, the doctrine hereinabove discussed was recognized. In that case the grantor, by deed dated December 31, 1863, created an express trust, but reserved no power of revocation. In 1866, thé grantor undertook to revoke the trust by having the trustee execute a quit-claim deed back to the grantor. The court, applying the rule announced by Perry on Trusts and Trustees, supra, held that “a completed trust, without reservation of power of revocation, can only be revoked by the consent of all the beneficiaries.” (L. c. 196.)

In the present , casé the settler, by reserving to herself the power of sale of the land which is the subject of the trust, clearly intended thereby to reserve the power of revocation; and in the year 1868 she exercised. that, reserved power of revocation by executing and delivering a warranty deed conveying the land here in controversy, and that deed operas a evocation of the trust as to that particular tract, divesting whatever title or interest the trustee and cestuis theretofore had in the same, and passing the complete title to the grantee in said warranty deed, which title, by mesne convey-anees, later passed to the defendant, respondent herein. The trial conrt, therefore, properly decreed the title to be in defendant.

II. We are nnable to see from the evidence adduced how appellants conld recover upon any theory. It will he noticed that the instrument of February 25, 1862, under which plaintiffs claim, does not expressly describe the land sought to be affected by the trust. The only description is by reference. The instrument says that it shall include all the land which the grantor purchased from William King and wife, “except the portion .of said land I have' heretofore sold and conveyed to Ben Brown and wife by deed,” recorded “in Book M, pages 433 and 434.” Appellants introduced the deed from King and wife, showing that the land in controversy was conveyed thereby, but no offer of proof is made as to what part of said King land had theretofore been conveyed by said Catharine Weldon to Brown by the deed referred to. It is therefore impossible to ascertain whether the land in suit was a part of the King land remaining after the prior sale to Brown, and therefore a part of the land sought to be identified and described by reference.

The judgment is affirmed.

Roy, G., concurs.

PEB CURIAM.

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

All of the judges concur.


author: ROY, C. PER CURIAM.

text:
    THE STATE v. ED RAFTERY, Appellant.
    Division Two,
    June 28, 1913.
    1. INSTRUCTIONS: Burglary and Larceny: Receiving Stolen Goods. A defendant on trial for burglary and larceny is not entitled to an instruction “that the mere fact that he may have received a portion of the property alleged to have been stolen does not warrant the jury in finding him guilty.”
    2. EVIDENCE: Admissions: Competency: Illegal Arrest. Admissions made by 'a defendant while under arrest are not, if voluntary, rendered incompetent by a showing that the arrest was illegal.
    3. ARGUMENT OF COUNSEL: Objections and Exceptions: Ap-‘ peal. . When a defendant objects to remarks of the State’s counsel in his argument and the court after sustaining the objections asks the jury to disregard the statements, the defendant if not satisfied should ask such further action as he ■ desires and should except to the action of the court in not more severely rebuking the State’s counsel.
    4. -: Failure of Defendant to Deny Incriminating Statements. Counsel for the State has the right to comment on defendant’s failure while on the stand to deny incriminating statements attributed to him by other witnesses.
    Appeal from St. Louis City Circuit Court. — Hon. Leo 8. Rassieur, Judge.
    Affirmed.

      Charles P. Williams for appellant.
    (1) The court should have given the instruction asked for; or should at least have instructed that the mere receiving of stolen property was insufficient. R. S. 1909, sec. 5231; State v. Yinso, 171 Mo. 578; State v. Anslinger, 171 Mo. 600; State v. Fredericks, 136 Mo. 51. The necessity for such an instruction is plainly shown by the closing appeal of the assistant circuit attorney. (2) The comment of the assistant circuit attorney as to the failure of the co-defendant to testify was most damaging; and when followed up at the very last, in the closing speech (always of great weight and influence in a criminal case) by the sinister suggestion as to the failure of the defendant to testify to certain things by way of explanation, prevented a fair trial. These remarks were mildly corrected by the trial court, but were never withdrawn by the circuit attorney. State v. Spivey, 191 Mo. 112; State v. Shonse, 188 Mo. 473; State v. Shipley, 174 Mo. 512; State v. Weaver, 165 Mo. 1; State v. Brownfield, 15 Mo. App. 593; State v. Fairland, 121 Mo. 137. (3) In spite of his just having given bond upon the charge against him, the defendant was seized by the police and carried for sweating before the chief of detectives, together with his brother. He was there subjected to the stories of his alleged confederates, and to a series of continued questionings himself. He was taken the next day under' custody to the police station in North St. Louis, when he was again subjected to police interrogation. During all this time he was constructively out on bond under the guardianship of the court that had admitted him to bail, and the police officers were well aware of this fact. If a confession obtained under duress be inadmissible and ought to be disregarded, illegal imprisonment would seem to be one form of duress; and at the very least, the court should have fairly submitted the evidence upon this point to the jury, and accompanied it by an apt and appropriate instruction as to its voluntary or involuntary character, which the court failed to do. R. S. 1909, sec. 5231.

      John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
    (1) The defendant, by his counsel, asked the fol-' lowing instruction: “The court instructs the jury that the mere fact that defendant may have received a portion of the property alleged-to have been stolen does not warrant the jury in finding the defendant guilty.” The court refused to give the instruction, and defendant, by his counsel, duly excepted. If it would be proper to give this instruction in any case of larceny, it was not error to refuse it in the case at bar, for the reason that there was no evidence authorizing’ it, or upon which it could be based. All of the testimony for the State showed the defendant a principal in the larceny, and all of the testimony for the defendant showed him to be innocent of the offense charged, or of receiving any part of the stolen money. A party engaged in the transaction is a principal thief, not a receiver. State v. Smith, 37 Mo. 67; State v. ITorrig, 78 Mo. 252; 25 Cyc. 59, par. D. By all the. evidence in.the case the defendant was either guilty as a principal in the larceny charged, or he was innocent. There was not a scintilla of evidence that he was guilty of receiving stolen property. When there is no evidence upon which to predicate an instruction, it is proper for the court to refuse the instruction requested. State v. Coffee, 158 Mo. 572. The defense was an alibi, and there was evidence tending to sustain that defense, and the defendant was guilty of the larceny charged or guilty of no offense at all, and the instruction was properly refused. State v. Whalen, 148 Mo. 290; State v. Anslinger, 171 Mo. 609. The most that can be said for the defendant, that when he was confronted by the gypsy boy, Burns, and Kennedy in the police station and heard them detail the manner of the larceny and implicate him as. an active participant in the commission of the offense, he neither admitted nor denied their accusation, but cursed them. TIis silence was a confession. Under-hill on Crim. Ev., p. 153, par. 122; State _v. Good, 132 Mo. 114; State v. Mullins, 101 Mo. 514; State v. Taylor, 134 Mo. 133. (2) The mere fact that defendant was held without process or otherwise in illegal custody cannot exclude his statements or confessions. Underhill on Crim. Ev., p. 163, par. 129; State v. Simon, 50 Mo. 370; State v. Carlyle, 57 Mo. 102; State v. Shackelford, 148 Mo. 393; State v. Vaughan, 152 Mo. 73; State v. Church, 199 Mo. 605; State v. Spaugh, 200 Mo. 571; State v. Armstrong, 203 Mo. 571; Balbo v. People, 80 N. Y. 484. (3) For a discussion regarding comment by the State’s counsel bn the failure of the defendant to deny incriminating statements, see State y. Larkin, 250 Mo. 218, and the State’s brief therein.
   ROY, C.

Defendant was charged jointly with John Burns, alias Podgy Burns, and James Kennedy with burglary and larceny. There was a severance, and the defendant, on a separate trial, was convicted of grand larceny, and sentenced to the penitentiary for two years.

Milasch Vlado and Nicholas Vlado, father and son, gypsies, lived on O ’Fallon street in St. Louis, the former at No. 1525 and the latter at No. 1523. They were both married and there was another married son of the father who lived with him. Milasch and his son Nicholas each had about $4000. About six thousand dollars of it was in American gold coin, and the remainder was in foreign coin of various countries. It was kept partly in an old piece of hose over three feet long, and partly in some bags, all wrapped in canvas and kept on the bed in the house of the elder Vlado. The.wife of Nicholas Vlado had a nephew, George Nicholas, about seventeen years of age, who came from Chicago to St. Louis in March, 1912. When George Nicholas arrived in St. Louis, his uncle Nicholas Vlado was on a trip to Chicago. While in Chicago Nicholas Vlado learned that George Nicholas had stolen some money from a gypsy in Chicago and had gone to St. Louis. On arriving home about March 17, be found George at bis (Nicholas Vlado’s) home, and drove him away because of the theft.

Will Powers kept a saloon at Fifteenth and Biddle, close to the home of the Vlados.

On the night of March 19, Milasch Vlado and his son Nicholas were intiated into the lodge of the Knights of Pythias and did not return until some time after midnight. The wife of Milasch Vlado and her little granddaughter slept that night in the bed with their heads on the canvas in which the' money was kept. About half past eleven o’clock that night George Nicholas, James Kennedy, Podgy Burns, Ben Shaw and Will Powers were all at the saloon of Powers. The question in issue in the trial was whether the defendant was in company of those who went to Vlado’s house and got the money. George Nicholas-testified that he informed Raftery, Shaw, Burns and Kennedy that the Vlados had money and that they all went to Vlado’s house, found the doors open, went in, and went to. the bed where Vlado’s wife was sleeping and got the money. They carried it to Powers’ saloon and scattered it on the floor, Powers being present; and that they all “grabbed” for the money, and thus the division of the booty was made. George Nicholas and the defendant went into hiding. George Nicholas was brought back from Cincinnati by the officers of the law. The defendant, knowing that the police were after him, surrendered to the sheriff and gave bond for his appearance and was released. The police promptly rearrested him.

The gypsy boy, Burns, Kennedy and the defendant were all brought together by the police who were in charge of them, and Sergeant Campbell testified as follows as to what then occurred:

“Mr. Shaner: I will ask you what you asked Kennedy in reference to this stealing, and what Ken-nedv said? A. Kennedy said that they had went to this place-
“Q. That who went? A. That he, Burns, Raft-ery and the gypsy hoy, and that Raftery, and I dis-remember who else, went up in the house — Burns, I think it was — and this fellow had a knife, Raftery, and then, they returned and had the gypsy boy, cursing him, says, ‘God damn you, that money isn’t there.’ They took the gypsy boy up then and he located the money for them. Kennedy said they brought the money from there over to the saloon, Raftery helping carry the money, helped to carry it down the steps, and that Raftery and Burns took the hose and dumped it out on the floor and the proceeds was divided there, and that Raftery had taken one of the sacks and went out of the side door of the saloon; then they had left. And Burns quoted it pretty near word for word the same way.
“Mr. Shaner: What did Raftery say in answer to that, or what did you ask him? A. I asked Raf-tery if that was true, what Kennedy and Burns had just told, and he said they were ‘God damn rabbiting sons of bitches’ and that there was no ‘rabbit’ in him. He says, ‘ Go on with their rabbiting; let them rabbit. ’ I asked him what he meant by ‘rabbiting;’ he said he was doing no snitching.
“Q. What did he say further in reference, to what he got, if anything?
“Mr. Gernez: I object to that as leading.
“The Court: What, if anything, did he say about this money? A. I asked him how much of the proceeds he got; he said he got $150 for his share and he knew where the rest of the money was. I think, as near as I can remember, that is the words he used; and there was no rabbit in him, go on and give him the third degree. He turned his head to one side and says, ‘Give me the third degree, you sons of bitches. I know where it is at, and I’ll tell you nothing.’ I then touched him on the shoulder and'told him to set np straight, that nobody was going to abuse him, or give him the third degree, to set up straight - in the chair and answer what questions were asked him.
“Mr. Shaner: Is that all that took place, or do you remember anything else? A. That is about as much as I remember.”

The foregoing testimony as to admissions made by defendant was objected to on the ground that the defendant was under illegal arrest when the statements were made and that such statements were made under duress: The objection was overruled.

On the trial the defendant testified that he took no part in the robbery, and that he did not get any of the money. He admitted in his testimony that he was present when the money was- scattered on the floor of the saloon. With reference to.what occurred in the division of the money, he testified as follows:

“Q. When they came in what did they do? A. They first set the money down on the table and that woke me up; I was in a half doze, my head down on the- table, and Shaw says this is too bright a place for to split this money up here; so he walked behind the counter and the rest of them followed him.
“Q. What happened then? A. And I walked over myself. I walked over to him and Shaw says, ‘Why, you’re not in on this, Baf. Tou are not in on this money at all.’
“Q-. What did he do when he said that? A. He jumped right back and pulled out a nickel plated forty-four Colt’s and stuck it to my stomach and says, ‘Ton back out of here.’
“Q. What did you do? A. I hesitated a minute, and he says, ‘If you don’t go I’ll make it good.’ That is the words he said.
“Q. Had you been -with those people or- any of them up to this gypsy house? A. No, sir, I had not.
“Q. Or taken any part in taking that money? A. No. sir.”

There was evidence on the part of defendant tending to prove that he did not go with the others to the honse of Ylado.

The instruction given fully covered the law in the case, and no criticism is made of them. The defendant requested the court to give the following instruction which was refused:

“The court instructs the jury that the mere fact that defendant may .have received a portion of the property alleged to have been stolen does not warrant the jury in finding the defendant guilty.”

In the course of his argument to the jury counsel for the State called attention to the fact that the persons indicted with defendant did not testify for him, when the following occurred:

“Mr. Gernez: I except to the remarks of the circuit attorney, and now ask that the court declare a mistrial.
“The Court: The court will not declare a mistrial, but the court will instruct the jury to disregard the reference of the circuit attorney to the other witnesses who are jointly charged with the defendant.” ■Counsel for the State then proceeded with his argument as follows:
“What is there to base a reasonable doubt on? It is true the defendant denies that he went over there -and took part in this larceny, but he does not deny the proposition that he did get $150, and that he had some more of it hid out.
“Mr. Gernez: I object to those remarks of the circuit attorney.
“The Court: Mr. Shaner, the defendant was not required to testify with reference to any portion of this case and you will not comment on any portion of the case that he did not testify about. I will ask the jury to disregard • that statement.
“Mr. Shaner: Gentlemen, I do not desire to comment on the case further. I will leave the case with you. ”

I. The court did not err in refusing defendant’s requested instruction on the subject of receiving stol- en goods. That was not an offense in-yolved in the case, and the defendant could not have been convicted of such of-fense under the information in this case.

The rule in regard to instructing on a lower degree of the crime charged does not apply here. The situation here is the same as if the defendant had selected any other fact in the case and had told the jury that such fact, of itself, would not justify a conviction. Such procedure is condemned by this court in State v. Williams, 136 Mo. 293; State v. Cantlin, 118 Mo. 1. c. 111, and State v. Mitchell, 229 Mo. 1. c. 697.

II. There was no fact tending to show that the admissions made by defendant were not made volun- tarily. The fact that he was under an illegal arrest does not render such admis- . , , . n . „ sions incompetent m the absence of a showing that they were not voluntary. It was held in State v. Armstrong, 203 Mo. 1. c. 559, that the fact that the confession was made to an officer having defendant under arrest did not render the confession incompetent. There are many other cases in this State to the same effect:

“And according to the weight of authority, a confession, if otherwise admissible, cannot be rejected for the reason that the officer to whom it was made held the prisoner in custody upon an invalid process, or without any process or legal right.” [6 Am. & Eng. Ency. Law (2 Ed.), 539.]

In Thornton’s case, 1 Lewin’s Crown cases, 49, the prisoner, a hoy fourteen years of age, confessed under the following circumstances. He was arrested without warrant between twelve and one o’clock in the day, and carried to the police office. He was not taken before the magistrate because that officer was otherwise engaged. Between four and five o’clock the officer of his own authority ordered the prisoner to prison. The officer told the prisoner that on account of the falsehoods the prisoner had told there was no doubt he had set the building on fire. The prisoner denied it. The officer replied that he could not have told so many falsehoods if he had not been concerned in it. The prisoner had no food until after his confession. It was held by seven judges against three that the confession was competent. Confessions or inculpatory statements are not inadmissible in evidence if voluntarily made, although the defendant be under arrest at the time; and this is true whether the arrest be legal or illegal. [Scott v. State, 3 Ga. App. 479; Ivey v. State, 4 Ga. App. 828.] In Hoober v. State, 81 Ala. 51, a negro girl about seventeen years old was in the service of the prosecutrix, and on the morning of the burning of the house, her mistress locked her up in an outhouse, and said to her, “Now, I reckon you will tell me something about burning the house, I believe you know all about it,”' in reply to which she made a confession. It was held' that the confession ought not to have been admitted,, the court saying, “it is not entirely settled that confessions made by one in a state of illegal imprisonment without more are to be deemed involuntary upon the ground that the necessary inference is that they were produced by the duress of such imprisonment. ”

The mere fact that two officers who had arrested a boy thirteen or fourteen years old, without a warrant, upon suspicion of having committed a crime, after searching him, stripped him of his clothing, and putting him into a cell at the police station, took him from the cell late at night and questioned him for two hours, without warning him of his right not to answer, or offering him opportunity to consult friends or counsel, does not render his confession in the conversation inadmissible on his trial for the crime. [Commonwealth v. Cuffee, 108 Mass. 285.]

“It appeared that in point of fact no inducements were held out by the officer, nor threats made to the prisoner; but the conversation was free and voluntary upon the part of the prisoner. Indeed, the contrary is not pretended in argument; but it is claimed that, as the prisoner was not taken before a magistrate within twenty-four hours after his arrest by the officer,, the custody in which he was.at the time of the conversation referred to was an illegal custody, and that what was said, while in such custody is for that reason only inadmissible as evidence against him. We think, however, that this position finds no countenance either in principle or authority. ’ ’ [People v. Devine, 46 Cal. 46.] In Balbo v. People, 80 N. Y. 484, the court said: ‘ ‘ The fact that the arrest was illegal had no relevancy, if the confession was voluntary. The people are not precluded from availing themselves of the voluntary confession because the officer or person to whom it was made was exercising an illegal restraint over the prisoner at the time.”

We have not been able to find a single case in which it has been held that the mere fact that the prisoner was held in illegal custody would invalidate an admission or confession made while in such custody, in the absence of other showing that the statement was involuntary. The statement of the police officer clearly shows that the defendant made the statements attributed to him without any fear of the police, and without any promise from them.

III. Complaint is- made of the conduct of the counsel for the State in his argument to the jury. The defendant objected to certain remarks s^owrL ^11 the statement. The court in effect sustained defendants objection and asked the jury to disregard the statement. No further action was taken by defendant. Under the ruling. in State v. Wana, 245 Mo. 1. c. 563, if defendant was not satisfied with the action of the court in the matter he should have asked such further action, as he desired, and should have excepted to the action of the court in not more severely rebuking the State’s counsel.

Moreover, this court has recently held in State v. Larkin, 250 Mo. 218, that counsel for the State has the right to comment on the failure of the defendant while on the stand to deny incriminating statements attributed to him by other witnesses. It is a wholesome rule, and we abide by it. The

judgment is. affirmed.

Williams, C., concurs.

PER CURIAM.

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

All of the judges concur.


author: FARIS, J.

text:
    THE STATE v. JAMES ANDERSON, Appellant.
    Division Two,
    July 9, 1913.
    1. INFORMATION: Assault With Intent to Kill. An information charging that defendant “then and there in and npon one Novella Anderson then and there being feloniously, on purpose and of his malice aforethought, did make an assault and did then and there feloniously, on purpose and of his malice aforethought shoot and wound her, the said Novella Anderson, with a certain shotgun then and there loaded with gunpowder and leaden halls, which shotgun he, the said James Anderson, in his hands then and there had and held, with the intent then and there her, the said Novella Anderson, feloniously, on purpose and of his malice aforethought then and there to kill and murder,” etc., is sufficient in every respect.
    2. -: -: Deadly Weapon. If the weapon alleged by the information to have been used is such as is judicially noticed by the courts to be deadly, then the information need not allege that the weapon used was a deadly one.
    3. -: Plea in Abatement: Complaint Before Justice Made-by Another. If the information filed in the circuit court upon which defendant was tried was made upon the oath of office of the prosecuting attorney, a plea in abatement should not be sustained for that the affiant who made the complaint before the justice of the peace was not present and had no personal knowledge of the shooting.
    4. -: Preliminary Hearing. A defendant, who was charged with an assault with intent to kill by an information filed in the circuit court on March 4, 1911, was not entitled to a preliminary hearing before a justice of the peace.
    5. -: Preliminary Hearing for Mayhem: Charged With Assault With Intent to Kill. The prosecuting attorney is not bound by the name with which the justice of the peace labels an offense when he dockets a complaint. Where the justice accorded the defendant a preliminary hearing, but erroneously styled the prosecution instituted by the complaint of the father of the assaulted woman a “prosecution for mayhem,” when both the allegations of the complaint and the proof showed the offense was an assault with intent to kill, it cannot be held that, because of that erroneous labeling of the case, the defendant was not accorded a preliminary hearing on the charge made by the information, to-wit, an assault with intent to kill.
    6. -: Filed on Eve of Meeting of Grand Jury. Prosecutions for felonies may be instituted by indictment by a grand jury or an information filed by the prosecuting attorney, and the two remedies are concurrent. It was not an invasion of the rights of the defendant for the prosecuting attorney to file, on March 4th, an information charging a felony, when a grand jury had already been summoned to convene on March 6th.
    7. ASSAULT: Wife as Witness Against Husband. The wife is a competent witness to testify against her husband charged with making an assault upon her with intent to kill.
    8. -: Ten-Year-Old Child as Witness. The statute, by strong implication at least, makes a child ten years old, a competent witness. But even if it does not settle it, the holding of the trial court, who, after examining her upon, her voir dire at such length as to satisfy himself and ruled that she was competent, will not be disturbed by the appellate court.

      S. -: Testimony of Another Offense: Res Gestae. Where defendant was charged with shooting his wife with a shotgun only, testimony that, after defendant had emptied his shotgun, shooting her in the head and arm, and hy the second shot practically tearing her arm off, and she had run from the house, he hastily obtained a rifle, and, overtaking her about ' forty yards from the scene of the first shooting, seized her by the uninjured arm, and shot her with the rifle, is competent as res gestae, even though it may show the commission of another offense.
    10. CHANGE OF VENUE: Prejudice of Inhabitants: Discretion of Court: Fair Trial. The matter of granting a change of venue is bottomed upon the sound discretion of the trial judge. It is only when he plainly and palpably abuses this discretion to such an extent as to preclude to defendant a fair trial that the Supreme Court will interfere with his denial of defendant’s application charging the inhabitants to be prejudiced against him. Where at the immediate time of the commission of the offense of shooting his wife with a shotgun there was considerable feeling against defendant and some talk of mob violence and expressions that he was guilty, brought about by newspaper reports, but at the time of the trial eleven months later the excitement and feeling had died down, and no objections were made to jurors, and the evidence of defendant’s guilt is clear and • undenied, it will not be held that by a refusal to grant defendant a change of venue he was denied a fair trial.
    Appeal from Texas Circuit Court. — Eon. L. B. Woodside, Judge.
    Affirmed.

      Lamar, Lamar & Lamar for appellant.

      Elliott W. Major, Attorney-General, and A. W. Stewart for tire State.
    (1) Tire information conforms to the requirements of the statute and properly charges the offense. R. S. 1909, sec. 4481; State v. Bond, 191 Mo. 567; State •v. Prendible, 165 Mo. 332; State v. Borton, 142 Mo. 453. (2) The complaint upon which the defendant was held charges him with malice aforethought to maim and hill and murder. The fact that the justice of the peace labeled the case mayhem does not estop the prosecuting attorney from filing an information charging defendant with assault with intent to kill. When several intents are charged the proof of either is sufficient. State v. Chumley, 67 Mo. 44. (3) By the amendment to the Constitution adopted in November 8, 1900, indictments and informations become concurrent methods for prosecution of felonies. Constitution, art. 2, sec. 12; State v. Kyle, 166 Mo. 287; State v. Bouner, 178 Mo. 424; State v. Gregory, 178 Mo; 55. The information in this case was verified by the prosecuting attorney, and filed with the clerk of the court, March 4, 1911. The grand jury was not impaneled until'March 6, 1911. The mode of procedure first in-' stituted for any offense shall be pursued to the exclusion of the other, so long as the same shall be pending and undetermined. R. S. 1909, sec. 5055; State v. Gieseke, 209 Mo. 339; State v. Harvey, 214 Mo. 408. (4) On an application for a change of venue because of the prejudice of the inhabitants of the county, the Supreme Court will not interfere with the discretion of the trial judge, who heard the evidence, in overruling the application, unless it appears that such discretion has been palpably abused. State v. Brownfield, 83 Mo. 448; State v. Wisdom, 84 Mo. 184; State v. Burgess, 78 Mo. 235; State v. Atchley, 186 Mo. 174; State v. Thompson, 141 Mo. 414. (5) The prosecuting attorney dismissed as to the second count of the information. The first count is good. The character of the charge is not determined by the complaint filed before the justice of the peace. All that the justice is required to find is that a felony has been committed and probable cause to believe the prisoner guilty thereof. State v. Jeffries, 210 Mo. 320; State v. Sassa-man, 214 Mo. 719. (6) The court permitted the State to introduce evidence of the shot fired by the defendant with the rifle. This was a part-of the res gestae. The court very properly instructed the jury, in defendant’s third instruction, that they could only consider the evidence of such shooting in passing upon the motive or intent of the defendant. (7) Novella Anderson, the wife of appellant, was a competent witness to testify to the assault made on her by the defendant, when she volunteered to testify. 1 Greenleaf on Evidence, sec. 343; Wharton, Crim. Ev., sec. 393. (8) Gladys Anderson, ten-year-old daughter of appellant and his wife, who is the prosecuting witness, was, after the preliminary examination by the trial judge, permitted to testify. The competency of a child to testify is wholly within the'discretion of the trial judge. 1 Greenleaf on Evidence, sec. 367; State v. Jeffries, 210 Mo. 326.
   FARIS, J.

Defendant was tried in the circuit court of Texas county on the charge of assault with intent to Mil. He was convicted and his punishment assessed at ten years’ imprisonment in the penitentiary. Erom the sentence imposed, after the usual motions for a new trial and in arrest, he has appealed.

The information, which was attacked, both by a motion to quash and a plea in abatement, and the contents of which therefore become pertinent, is, omitting caption, as follows:

George H. Scott, prosecuting attorney -within and for the county of Texas, and State, of Missouri, informs the court upon his oath of office that on or about the 24th day of December, 1910, at and in the county of Texas, in the State of Missouri, one James Anderson, then and there in and upon one Novella Anderson then and there being feloniously, on purpose and of his malice aforethought, did make an assault and did then and there feloniously, on purpose and of his malice aforethought, shoot and wound her, the said Novella Anderson, with a certain shotgun then and there loaded with gunpowder and leaden balls, which shotgun he the said James Anderson in his hands then and there had and held, with the intent then and there her, the said Novella, Anderson, feloniously, on purpose and of his malice aforethought then and there to kill and murder against the peace and dignity of the State.
And tlie prosecuting attorney aforesaid for other and further complaint upon his oath of office informs the court that on or about the 24th day of December, 1910, at and in the county of Texas, and State of Missouri, one James Anderson, in and upon one Novella Anderson, then and there being, unlawfully, feloniously, on purpose and of his malice aforethought, did make an assault and with a deadly and dangerous weapon, to-wit, a shotgun, then and there loaded with gunpowder and leaden balls, which he, the said James Anderson, in both of his hands then and there had .and held at and against her,' the said Novella Anderson, then and there unlawfully, feloniously, on purpose and of his malice aforethought, did shoot off and discharge and with the shotgun aforesaid and the leaden balls aforesaid, then and there unlawfully, feloniously, on purpose and of his malice aforethought, did shoot and strike her, the said Novella Anderson, in and upon the left arm of her the said Novella Anderson, giving to her, the said Novella Anderson, then and there with the dangerous and deadly weapon aforesaid, to-wit, the shotgun aforesaid and gunpowder and leaden balls aforesaid, in and upon the left arm of her, the said Novella Anderson, a certain wound of the breadth of three inches and of the depth of three inches, of which wound the said left arm of said Novella Anderson is wholly and permanently disabled, with the intent then and there her, the said Novella Anderson, on purpose and of his malice aforethought to kill and murder, against the peace and dignity of the State. George H. Scott,
Prosecuting Attorney.
George H. Scott, prosecuting attorney, being sworn, upon his oath states that the facts stated in the foregoing information are true according to' his best information and belief.
George H. Scott.
Subscribed and sworn to before me this 4th day of March, 1911.
Joe C. Stites,
Circuit Clerk.

Briefly stated tlie grounds urged in the motion to ■quash were (a) that the information was duplicitous and that two separate and distinct offenses were thereby charged, to-wit, assault with intent to kill and mayhem; (b) that the information is vague, indefinite and uncertain and does not fully inform the defendant of the charge preferred against .him, and against which he is required to plead and defend himself; and (c) that the offense charged in the information is a separate and distinct offense from that set ont in the complaint which was filed before the justice of the peace. This motion to quash was overruled and defendant saved his exceptions in due form.

Defendant also, as above forecast, attached the information by plea in abatement, which plea was bottomed upon the averred objections, in substance, (a) that no preliminary examination before a justice of the peace was accorded defendant before the'- filing against him of the information herein; (b) that the information was not based upon the affidavit of any witness having personal knowledge of the facts stated therein, and (c) that the prosecuting attorney has no authority to institute a prosecution for a felony by information when the grand jury is in session, or when a grand jury has been summoned and will shortly be in session. This plea was, also, by the court overruled, and defendant duly saved his exceptions to the action of the court in such behalf.

The facts as shown by the record touching this plea in abatement are that a complaint was filed by one G-. T. Mires, who was the father of the person alleged to have been the victim of the assault charged. This witness had no personal knowledge of the assault, except that he came to the scene of the shooting, saw the condition of his daughter, and some four weeks thereafter, no one else acting, he filed a complaint before a justice of the peace. This complaint is full and formal. If any objection can be urged against it it may be said to be too full. It charges an assault with intent to kill with a felonious intent, closing, however, with these words: “With the intent then and there, her the said Novella Anderson on purpose and of his malice aforethought, to- main [sic] and kill and murder, against the peace and dignity of' the State.” Upon the docket of the justice of the peace it is stated that defendant was by said complaint charged with mayhem.- A preliminary hearing was, duly accorded to defendant and lie was by tbe justice of tbe peace beld in bail to await tbe action of tbe circuit court. Subsequent to tbis preliminary bearing and before tbe convening of tbe next term of tbis circuit court and before tbe impaneling of tbe grand jury (wbicb term of court began and wbicb grand jury was impaneled on tbe 6tb day of March, 1911), tbe prosecuting attorney, on tbe 4tb day of March, 1911, filed against defendant tbe information above set out.

Upon tbis state of facts several of tbe contentions made by defendant for a reversal are predicated.

It is also urged by defendant that bis application for a change of venue should have been granted. Tbis application was based upon tbe prejudice of tbe minds of tbe inhabitants of Texas county against defendant; it was verified by tbe statutory number of compurga-tors and was timely made and in all ways formal. A bearing was bad by tbe court and numerous witnesses were called by defendant. These witnesses, some two dozen or more in number, came, as defendant avers, from all parts of Texas county. But one witness was called by tbe State. Tbis witness was the assessor of Texas county, one U. T. Mires, who was tbe father of the woman alleged to have been shot. His testimony consisted largely in a denial that be bad stirred up public opinion against defendant while on bis rounds through tbe county attending to bis official duties.

Tbe testimony, when fairly reviewed, indicates that immediately after the occurrence of tbe shooting, which took place on December 24, 1910, some feeling bad existed. Tbe facts of tbe shooting, or tbe alleged facts thereof, were printed in tbe various newspapers of Texas county, and through these newspaper articles, and from conversations and rumors over tbe telephone, tbe news of tbe shooting very quickly obtained wide notoriety. Tbe witnesses were unanimous in saying that tbe talk about which they testified and tbe feeling wbicb they said formerly existed, came wholly, except in the immediate vicinity of the crime, from the sources stated. It was the consensus of opinion of these witnesses that while, as some of them stated, there had been in some communities, shortly after the «rime occurred, some- little talk of mob violence, this talk had “died down” since the shooting and before the trial, and that no excitement now prevailed touching the matter. All of these witnesses stated that they personally could give defendant a fair trial and wonld be governed by the evidence wholly and not by the rumors and newspaper reports, upon which their opinions in the case were bottomed.

As a fair example of the testimony of all of these witnesses, excerpts from the testimony of a number of them as fairly illustrating the condition of matters, is appended:

The witness Volmer, who was a newspaper editor, says that at the time of the shooting there was some little talk of a mob, but that the feeling against the defendant seemed to have “died down” completely.

The witness Lyles, who was also a newspaper man, says that at the time of the shooting “a great many did not express any opinion, but all who did express an opinion to me said he was guilty.” This witness further says that he had heard talk since this court began, but that “no feeling was expressed against defendant, nothing of the kind.”

Witness Hofrath, who also seems to have been a newspaper man, says that at the time the offense happened most of the people considered the defendant guilty; that he had not heard it discussed since he had been here at court;'that there was no expression of violence against him; that he did not believe the reports and rumors would have any weight with him in the trial, and that he had heard perhaps twenty-five or thirty men out of some three hundred voters in his neighborhood express themselves.

The witness Threasher, who seems to have been a very intelligent man, and formerly a judge of the county court, testified that at the time of the occurrence of the offense nearly everybody thought defendant was guilty; that he heard no other opinion expressed; that he had not heard anybody express themselves lately, but a year ago they thought he was guilty; that he heard perhaps fifty or a hundred people, out of some thousand voters, with whom he was acquainted, express their opinion, but that he did not hear anyone say he could not have a fair trial, or talk about mob violence, and that all of these opinions were based on newspaper reports.

The witness Curran testified that from what the people saw in the papers they thought defendant was guilty. That he had talked to some twenty voters out of 165; that these men expressed no feeling and talked of no mob violence; that they just thought he was guilty; that he had heard no one say that defendant could not have a fair trial.

Witness Turner said in substance that the people in Dade township talked about the matter a little bit; that he never heard very much talk about it; that since he had been attending court he had heard but one man mention it, and that this man had only said that if defendant was guilty “he ought to be nibbled to death by young ducks.”

We have not attempted to give the exact language of these witnesses, only the fair substance of what they said, but the above excerpts are fair samples of what all the witnesses called by defendant said.

The prosecuting witness, Novella Anderson, was the wife of defendant James Anderson, having been married to him some twelve years before the shooting, and at the time thereof they were living together on a little farm some three miles north of Success, a small hamlet in the northwest part of Texas county. On the morning of December 24, 1910, while Novella An•derson was engaged in preparing breakfast, the defendant, ber husband, came into the kitchen, and so far as the record shows, without a word, took his -double-barrel shotgun from a rack, which rack was just inside of the kitchen door, and fired twice at his wife. The first shot grazed her head, cutting off part of her hair, and a few of the shot striking and entering her head. Defendant again fired, striking his wife on the left arm near’ the shoulder and practically tearing her arm from her body. She then ran or fell out of the kitchen door, crossed- the yard and ran out the gate; defendant immediately and hastily procured a small 22-calibre rifle and ran after his wife; caught up with her some forty yards away, and, holding her by the uninjured arm, again shot her, with the rifle. This shot entered the right side of her head, some two inches above her right ear, ranged downward, passing, as the physician said, through the brain substance and into her left shoulder. Defendant returned to the house, procured some more shotgun shells, and his double-barrel shotgun, and was returning to the place where his wife was lying unconscious, when he was met by his wife’s sister and the latter’s husband, who prevailed on him to put up the gun and shoot no more. He did not deny the shooting or speak of it further than to say that he was sorry for it.

Upon the trial the wife of defendant, who was the assaulted person, was offered as a witness; defendant objected and was permitted, at his request, by the court, to ask certain qualifying questions, which ■questions developed the fact that the prosecuting witness then on the stand was the lawful wife of defendant and had been married to him twelve years. Upon being asked whether she desired to prosecute and testify against her husband, she answered unequivocally that she did.

No testimony whatever as to the facts of the shooting was offered by defendant; nor did he even take the stand; but lie did offer testimony as to Ms prior good reputation.

Upon the trial one Gladys Anderson, the daughter of defendant, as also the daughter of the prosecuting witness, was offered by the State. The defendant objected on account of her youth. The proof showed that she was ten years of age; that she became ten years of age on the 17th of August preceding; that she went to school, attended church and Sunday school and upon her voir dire examination stated that she knew it would be wrong to tell in her testimony that which was not true, and that the oath she had taken in effect obligated her to tell the truth.

As a result of the shooting and wounding the prosecuting witness lay at the point of death for many days and was compelled to have her left arm amputated.

The above statement of facts we deem sufficient to make clear the points urged by defendant.

I. The first count of the information, the same being the one upon which defendant was convicted, and with which therefore we are here . . , „„ alone concerned, seems to us to be sum-cient in every respect, and to accord in all ways with the approved forms. [Section 4481, R. S. 1909; State v. Williams, 191 Mo. 205; State v. Barton, 142 Mo. 450.] If the weapon alleged by the indictment to have been used is such as is judicially noticed by the courts to be deadly, then the information need not allege the use of a deadly weapon. [State v. Williams, supra; State v. Prendible, 165 Mo. 329.] The motion to quash was properly overruled.

■ The defendant contends that the information in this case was bad when attacked by his plea in abatement, which plea he avers should have been sustained, for the reason that the record shows that this information is based-upon the affidavit of G. T. Mires, who it is admitted upon tie record was not present and Lad no personal knowledge of the actual facts of the shooting.

An' examination of the first count of the information upon which the case .was tried (the second count having been before trial dismissed), discloses that this is an error. The record does show that a complaint as a Jgasis for a preliminary hearing was issued by the justice of the peace, which complaint was made by said Mires, but the record also shows that the information was upon the oath of office of the prosecuting attorney, and that in addition to being filed under his oath of office, there was appended thereto his affidavit. Under the statute this is all that was necessary. This is one of the three methods of verification of informations permitted by law and we hold that all was done that the law requires to be done. [Sec. 5057, R. S. 1909; State v. Bonner, 178 Mo. 424; State v. Lawhorn, 250 Mo. 293.]

II. -It is insisted by defendant that he was entitled to a preliminary hearing and that no preliminary hearing was granted to him. We have labored in the statement to show the facts correctly. These facts show that a preliminary hearing before a justice of the peace was accorded to the defendant. Since, however, he was not charged with a capital offense, under the law as it existed at the time of this prosecution, he was not entitled as a matter of law, or as a matter of statutory right, to a preliminary hearing. [State v. Schenk, 238 Mo. 429.] In the present ease, however, this contention of learned counsel for defendant is based upon a refinement of technical logic. The justice of the peace, without any legal excuse for so reciting, erroneously styled this prosecution as instituted before him by the complaint of said G-. T. Mires, as a “-prosecution for mayhem,” when as a matter of fact neither tile allegations of the complaint nor the proof adduced justified the justice in so labeling or styling the case. So defendant says he was accorded a preliminary hearing on the charge of mayhem-and prosecuted by information without a preliminary hearing thereon for an assault with intent to kill. The prosecuting attorney is not bound by the name with which a justice of the peace labels an offense when he dockets complaint.

We hold, first, that the defendant was duly accorded, under the facts here, a preliminary hearing; and, second, that he was not entitled to a preliminary hearing in this case as a matter of law, and therefore for both or either of the two reasons we are constrained to disallow this point. '

III. Defendant complains that since the grand jury had been called for March 6, 1911, and since the circuit court of Texas county would con-veiie ™ session on that date, it was an illegal invasion of his rights for the prosecuting attorney to file against him the information set out herein two days prior thereto, that is to say, on March 4, 1911. We are unable to see the force of this contention. Since the amendment of our Constitution permitting prosecutions for felonies to be instituted either1 by indictment or information, the two remedies have been in this State concurrent ones. The prosecuting attorney had the right/ since defendant had been recognized to await the action of the circuit court, either to file am information against him as he did, or to await the convening of the grand jury and to submit the matter, of indicting him to that body. The prosecuting attorney elected to proceed by information. This he had the right to do, the methods of prosecution being now concurrent. [State v. Harvey, 214 Mo. 1. c. 408; State v. Bonner, supra.]

IV. Defendant contends that since the person whom he shot was his wife, that she was, though a willing witness for the State, incompetent to testify against him. We need cite no authori- " . ties showing the usual correctness of this contention of the defendant; nor need we, we opine, cite any authorities showing the error thereof upon the facts in the case at bar. The wife of the defendant was the injured party; she is the one who had been three times shot by the defendant. Her competency then in this case arose from the well-known exception at common law, that where the wife is the injured person she may testify against her husband, ex necessitate. [1 Greenleaf on Ev. (16 Ed.), sec. 343; 1 Wharton Crim. Ev. (10 Ed.), sec. 393.] The contention is somewhat novel and so far as we know has never been seriously doubted before. If doubted, however, it is ■ well-settled against the defendant’s contentions. [State v. Pennington, 124 Mo. 388.]

It is also contended that the witness' Gladys Anderson, who had attained the age of ten years, some three months before the trial, was incompetent by reason of her non-age. This question, the age of the witness considered, is, by strong implication at least, ■settled by our statute. [Sec. 6362, R. S. 1909; State v. Brown, 209 Mo. 1. c. 418.] Besides, if the statute does not settle it, she was before the learned trial judge; lie had the opportunity of passing upon her intelligence from her appearance and from her manner upon the stand; he examined her, or permitted her to be ■examined at sufficient length upon her voir dire as to fully advise himself touching her competency. He ■decided that she was competent. From this distance her testimony would indicate that he was correct and that he did not violate that discretion which the law lodges in him and gives him as to witnesses under the age of fourteen years. [State v. Jeffries, 210 Mo. 1. c, 326.]

At common law an infant over the age of fourteen years was presumed to have sufficient intelligence, discretion and understanding to testify as a witness, but if under that age no such presumption was indulged (1 G-reenleaf on Ev. (16 Ed.), sec. 367); and he who offered a witness under fourteen years of age had put upon him the burden of proving capacity and therefore competency, before such witness was allowed to testify. It is reasonably clear that the effect of our statute (Sec. 6362, R.'S. 1909) is by strong implication at least to lower the age of presumed capacity and competency from fourteen years as at common law, to ten years, leaving the common law rule in force as to those under ten years of age. For the statute says: “The following persons shall be incompetent to testify ... a child under ten years of age, who appears incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly.” [State v. Brown, 209 Mo. 413.]

It is also urged that the court erred in permitting witnesses to testify as to a shooting both Avith a shot- gun and a rifle, when the information charged a shooting with a shotgun only. This was a prosecution for assault with intent to kill. The facts clearly show that the shooting Avith the rifle was a part of the res gestae. The defendant had emptied the shotgun at his wife, shooting her both in the head and in the arm, and by his last shot practically tearing her arm from her body. She ran; the defendant hastily and immediately began hunting for a rifle; found it, and pursued his fleeing wife to a point just outside of the yard gate, where he caught up with her forty yards only away from the original assault upon her, seized her by her uninjured arm, and again shot her .with a. rifle.- The court by an instruction especially limited the testimony as to the shooting with a rifle to the question of the intent on the part of the defendant, that is to say, as to whether this circumstance indicated on defendant’s part an intent to kill and murder his wife. It seems to ns that it is too clear for argument that it was a part of the res gestae. Being then a part of the res gestae it was admissible, notwithstanding the recital of it might have tended to show the commission against his wife of another crime. That was defendant’s misfortune, if such was its effect. If the testimony was admissible, the fact that it might have shown the commission of another offense is no objection against its admission. It comes in as a part of the res gestae regardless of this contention, and that it was a part of the res gestae under the facts here is too plain for discussion.

V. Defendant strenuously complains that the court erred in refusing to grant him a change of venue upon his application and upon the showing made by him. This is the most serious con- , ^ tention that we find contained in the record.

We have set out some of the testimony adduced by the defendant upon his application, and have gone over the record with much pains. The testimony shown is as fair an example of what all of the witnesses testified as we have been able to obtain from the record.

Reverting to the well-settled canons of decision as the basis for a logical discussion of the point involved, we find that the matter of granting a change of venue is bottomed upon the sound discretion of the trial judge. It is only when the trial court plainly and palpably violates this discretion to such an extent as to preclude to a defendant a fair trial, that this court will interfere. [State v. Atchley, 186 Mo. 174; State v. Wisdom, 84 Mo. 177; State v. Burgess, 78 Mo. 1. c. 235; State v. Albright, 144 Mo. 1. c. 642; State v. McCarver, 194 Mo. 1. c. 734.]

The excerpts which we quote in our statement of this case show that at the immediate time of the commission of' this offense there was considerable feeling against defendant and some little talk in a few neighborhoods of mob violence; and the record discloses that this condition of the public mind was brought about by reading the newspaper reports of defendant’s most heinous offense. The case was tried eleven months after the offense was committed, and the wit-' nesses are practically unanimous in saying that whatever excitement and feeling had existed immediately following the crime, had completely died down. The witnesses who were examined upon this application were also practically unanimous in saying that while they were induced by the newspaper reports and-by conversations over the telephone to believe in the guilt of the defendant, yet their feelings were such as that they would consider the case, if they were jurors, upon the evidence and would decide it from the evidence offered and not from the rumors and reports they had heard. So far as the record discloses no difficulty whatever was experienced in obtaining a jury. No objections were made or saved, to the jury as a whole or to any juror, and if a single member of the venire called for the trial of this case disqualified himself, or was objected to on account of bias or prejudice, the record is absolutely silent about it. It is the misfortune of the defendant, if the'heinousness of his offense and the absolute certainty of his guilt, which he himself does not deny, extenuate or excuse, produced for a time a strong sentiment and feeling against him. It is likely, and extremely probable, that immediately following the commission of this crime, public feeling in Texas county where ■ defendant was tried was such' as to prevent his having a fair trial. But it is fairly clear from the record that this feeling had died down; that the calm judgment of the people had prevailed over their temporary emotions and that they were disposed at the time he was tried, to permit the law to take its course. It is difficult to conceive of any jury, anywhere, the facts of this shooting considered, acquitting defendant, or giving him less than the maximum penalty prescribed by the law. It is indeed a regrettable fact that the law did not permit a more severe penalty. Considering all these facts, particularly the length of time that had elapsed since the shooting, and in which it is apparent that the mob spirit, if any existed, and the public excitement caused by this crime had died down, it is not clear enough upon the record for us to say that the learned trial judge so palpably abused the discretion with which the law vested him, as to cause us to interfere, the nature of the offense here and the facts of this case considered. [State v. Barrington, 198 Mo. 23; State v. Rasco, 239 Mo. 535; State v. Kring, 11 Mo. App. 92.]

The facts in this case are to be distinguished from the facts in the case of State v. Goddard, 146 Mo. 177. While in the instant case the State offered no countervailing testimony, yet the cross-examination of the witnesses offered by the defendant showed such a condition of facts as to take it out of the rule enunciated in the Goddard case, and the further fact materially aids that in the instant case no defense whatever beyond the fact of previous good character, is offered by the defendant. Upon the trial he offers neither denial nor excuse. Upon such a state of facts, in addition to our opinion that upon the proof the learned trial judge did not abuse his discretion, we are aided in reaching this conclusion by the view that defendant was in no wise harmed by the refusal of his application, and we therefore rule this point against him.

We have gone over all points raised by learned counsel for defendant. We have examined the record and finding no substantial error affecting the material rights of defendant, we are constrained to order that this case be affirmed; and it is so ordered.

Brown, P. J., and Walicer, J., concur.