source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    WILLIAM LINDHORST et al., Appellants, v. ST. LOUIS PROTESTANT ORPHAN ASYLUM.
    Division One,
    November 30, 1910.
    1. EXCLUDING EVIDENCE IN EQUITY CASE. In an equitable proceeding evidence excluded by the chancellor and preserved in the bill of exceptions may be considered on appeal.
    •'2. SPECIFIC PERFORMANCE: Agent’s Authority: Subject to Approval. A committee of an eleemosynary corporation was authorized to sell a designated farm of fifty-one acres at “such price per acre as seems to them best,” and the chairman placed the land in an agent’s hands to sell at $7500, and he reported an offer of $7000, and to his letter the chairman replied in writing that the committee would not accept that price, but if the proposed buyer would pay $7250 he would “try and get the committee to authorize me to make the sale,” and without waiting for further authority, the agent entered into a written contract with plaintiffs to sell at $7250 cash. Held, that the agent had no authority to make the contract, but the letter of the chairman to him clearly indicates that the sale at that price was to be subject to the approval of the committee, and without such approval or a subsequent ratification by the corporation the contract cannot be enforced by the purchasers.
    3. -: Agent of Corporation: Authority to Sell Real Estate: Not in Writing. No agent has authority to 'sell the lands of a corporation unless his authority is in writing, and no written contract made by him with a purchaser is binding -upon the corporation unless he is authorized in writing by his principal to make said contract. [Disapproving Donovan v. Brewing Co., 92 Mo. App. 341; and distinguishing King v. Phoenix Ins. Co., 195 Mo. 290.1

      4. -: Unauthorized Sale: Ratification: Purchaser’s Knowledge of Custom. The fact that the chairman of the committee, authorized by the corporation to 'sell the land in question, had, with the knowledge and consent of the committee, practically-acted for it in all business transactions for the sale and investment of funds for eighteen years or more; did not mislead the purchasers from an unauthorized agent, if they knew nothing of it and were not induced thereby to enter into a contract of sale with the agent; and his sole approval of the sale, in view of the fact that he had in writing stated to the agent that if the land were sold at the named price he would try to get the committee to approve it, cannot be held to be a ratification —for he clearly did not pretend to act for the committee in the concrete case.
    5. -: -: -: Knowledge. Ratification of a sale of real estate presumes full knowledge of the facts. A board of directors of a corporation cannot be held to have ratified in its behalf a sale of land by an unauthorized agent if whatever they did towards seeming ratification was done under the mistaken belief that the approval'by the chairman of the'committee to whom they had committed the sale was “the action of the committee.”
    Appeal from St. Louis County Circuit Court. — No». John W. McElhinney, Judge.
    Areikmrd.

      Campbell Allison and Frank E. Richey for appellants.
    (1) The defendant corporation, hy its board of directors, authorized the advisory committee to sell the Russell farm at such "time, such price and terms as met their discretion. The finance committee, having power to seh the farm, had power to appoint Mittleburg agent to sell. R. S. 1899', sec. 971. Mittleburg’s appointment as agent to sell was not invalid for want of a formal meeting of the committee, because: (a) Neither the statutes nor the by-laws of the defendant corporation require that the committee hold formal meetings, and by authority of the board any two members of the committee could act for it. (b) By its course of dealing for eighteen years, the committee, having held only three or four formal meetings, had thereby established a method of doing business without formal meetings, which manner was ratified by the principle of acquiescence. Madden v. Paroneri Co., 75 Mo. App. 350. (c) “When a corporation has clothed its agent with power to do an act upon the existence of some extrinsic fact, necessarily and peculiarly within the knowledge of the agent, and of the existence of which the act of executing the power is itself a representation, a third party dealing with such agent in entire good faith, pursuant to the apparent power, may rely upon the representation, and the principal is estopped from denying its truth to his prejudice.” Forbes could have been authorized, at a formal meeting of the committee, to appoint Mittlebnrg agent to sell the land in question. By his letter, Forbes represents to Mittlehurg that this prerequisite formality had been complied with. The exercise of the power itself presupposes that this had been done. Whether it had been done was peculiarly within the knowledge of Forbes. Plaintiffs had no notice that the prerequisite formality had not been complied with, and acted in entire good faith, pursuant to the apparent power of the agent, and the corporation was bound by the act of its agent. Morawetz on Corporations, p. 62, rule 6; Clark on Corporations, pp. 498, 490, 525; 2 Cummings, Corporations, 119 149; Christian University v. Jordan, 29 Mo. 70; Lungstras v. German Ins. Co., 57 Mo. 107; Edwards v. Thomas, 66 Mo. 468; Tenbrook v. Winn Boiler Co., 20 Mo. App. 19; Smith v. Railroad, 74 Mo. App. 48; Yan Cleave v. Gas Co., 82 Mo. App. 684; Rosenbaum v. Gilman, 101 Mo. App. 126; Marshall v. Express Co., 7 Wis. 1; Bank v. Elevator Co., 90 Mich. 555'; Sherman C. T. Co. v. Swigart, 43 Kan. 292; Bank v. Bank, 48 N. J. L. 513; McNeal v. Chamber of Commerce, 154 Mass. 277; Mining Co. v. Bank, 104 U. S. 192; Credit Co. v. Machine Co., '54 Conn. 158; Knox _ County v. Aspinwall, 21 How. 539; Clark v. Washington, 12 Wheat. (U. S.) 544; Moore v. Mfg. Co., 113 Mo. 106. Mittleburg’s appointment as agent to sell was not in conflict with the Statute of Frauds, because corporations, being artificial beings, incapable of signing authority to their agents, are from necessity unaffected by the last clause of the Statute of Frauds. The statute expressly enables them to contract by parol through their agents. Mittleburg’s- act in signing the contract with plaintiffs was the act of the corporation. R. S. 1899, sec. 974; Donovan v. Brewing Co., 92 Mo. App. 341; Maddern v. Realty Co., 7’5 Mo-. App. 358; King v. Ins. Co., 196 Mo. 307; Lungstras v. Ins. Co., 57 Mo. 107. (2) Mittleburg having been duly appointed agent to sell, the memorandum of sale signed by him as agent of the defendant contains a sufficient description of the property and complied with the re^quirements of the Statute of Frauds. Mantz v. Maguire, 52 Mo. App-. 136; Black v. Crowther, 74 Mo. App. 480; Ellis v. Bray, 79 Mo. 227; Kelley v. Thuey, 102 Mo. 5-26; Smith v. Wilson, 160- Mo. 657. .

      Eugene S. Wilson and Arthur B. Shepley for respondent.
    (1) The authority to sell the farm was placed in the advisory and investment committee- by resolution formally adopted by the board of lady managers; this power was to sell at “such price as to the committee seemed best.” Pursuant to this discretionary power the advisory committee held a meeting and fixed a price at which it was willing to sell, but it never met again to consider any subsequent offers. The powers, of this committee were discretionary and non-delegable. 21 Am. and Eng. E-ncy. Law (2 Ed.), p. 857. (2) The resolution creating the advisory committee provided that “two members shall constitute a quorum,” but no further meetings were held and the committee therefore did not act; the only other time two members could act was on the absence of the other members from the city. As the other members were not absent from the city and were not even consulted, the action of Mr. Forbes could not bind the defendant. (3) In the absence of written authority to the agent Mittleburg, authorizing the execution of the contract for the sale of the farm for $7250, the defendant is not bound by said contract. R. S. 189®, sec. 3418; Johnson v. Fecht, 185 Mo. 343; Kirkpatrick v. Pease, 202 Mo. 489; Young v. Ruhwedel, 119 Mo. App. 239'. (4) Ratification of a contract for the sale of land must be in writing and as definite as the original authority. Hawkins v. Mc-Groarty, 110 Mo. 550; Roth v. Goeger, 118' Mo. 558; Johnson v. Fecht, 185 Mo. 335. (5) The contract as made was verbally changed and never ratified; estoppel not being pleaded cannot be relied upon. Moots v. Oope, 126 S.. W. 184; Railroad v. Curtis, 154 Mo. 20;
   WOODSON, J.

Plaintiffs filed their bill in equity in the circuit court of St. Louis county against the defendant, an eleemosynary corporation, organized and existing under the laws of the State of Missouri, for the specific performance of a contract for the sale of a tract of land situate in said county. The cause is here on appeal from an order and judgment of that court sustaining a demurrer to plaintiffs ’ evidence.

The petition alleges (a) that Mittleberg, a real estate agent, was duly authorized in writing, signed by defendant, to make said contract; and (b) ratification of said contract by defendant on November 19, 1906.

The answer was a general denial and a plea of the Statute of Frauds, denying the agent, Mittleberg, was-ever authorized in writing to make said contract on behalf of defendant.

The following is the contract sued on:

“St. Louis, Oct. 18,1906.
“Received of Wm. Lindhorst, Wm. D. Lindhorst and Gustav H. Lindhorst the sum of one hundred dollars, being as earnest and binding money and on account of the purchase price of a certain tract of land containing- 51.13 acres situated on the northwest corner of the Rock Hill and Watson Road, part in section 8, township 44, rang’e 6 east, in the county of St. Louis, Mo., which said tract of land was this day sold to said Lindhorsts for the price and sum of $7250 for the whole tract, terms to be cash on delivery of a full warranty deed for the land, free and clear of all encumbrances except the taxes for 1907 and thereafter. This sale to be consummated on or before November 1,1906, and to be subject to the approval of owners and right of possession'of the present tenant to January 1st, 1907. If the title to said land is defective and cannot be perfected within a reasonable time, then said earnest money shall be returned *to the purchasers, as also a reasonable fee for the expenses of examining title, not exceeding- twenty-five dollars.
‘ ‘ Arthur. Mittleberg,
- “For the Owners.
“We hereby agree to the above.
“Wm.. Lindhorst,
“Wave. D. Lindhorst,
“Gustav H. Lindhorst.”

The land in question had been devised to defendant by one Alexander Russell, several years prior to the commencement of these negotiations.

In 1889 the board of lady managers, by resolution, created an “Advisory and Investment Committee” of gentlemen and prescribed the duties of said committee —“to counsel wdth, give advice and act for and in behalf of the board of managers in all matters pertaining to the real estate and investments of the corporation. ’ ’ It conferred power on said committee “to take charge of, control, manage and safely keep all invested funds, consisting of bonds, stocks, mortgages, notes and other securities,” and it further authorized said committee “to invest any funds of the corporation, change, by sale or otherwise, any investments when deemed advisable by them, and reinvest the proceeds.” Said resolution contained also the following: “Two of which committee shall constitute a quorum for business, and in the absence of others from the city, any two of whom may act for said committee.”

Mr. Moses S. Forbes was a member of the first ' committee and continued to be until the beginning of this suit. He was also, at the time this suit was begun, treasurer of the investment fund, and had been for a long time prior thereto. In addition to this, he had, by consent, acted as chairman of this committee during practically all the time of its existence. This advisory committee held but three or four formal meetings during the eighteen years of its existence, the custom being that Mr. Forbes, the chairman, would learn the wishes and opinions of the other members and then act on it and report it to the board as the act of the committee.

On November 20, 1905, at a meeting of the board of lady managers, a letter from Mr. Forbes in regard to thé sale of the land given to the home by Mr. Russell was read. Mr. Forbes requested the board of directors to authorize the president and secretary to sign the paper .and permit the advisory board to sell the land at a certain price named by him in the letter. Mrs. Curtis said that the price mentioned was too low, and a majority of those present were asked to ascertain . the value of land in Webster. Moved by Mrs. Steele and seconded by Mrs. Curtis, that the matter be referred to the advisory board. Carried. Secretary advised to write to Mr. Forbes to that effect. The advisory and investment committee was then composed of Messrs. Bixby, Forbes, Nagel, Rouse and Whit-taker.

On January 17, 1906, the board of lady managers adopted a resolution authorizing “the advisory and investment committee to sell and the president to convey the farm, section 8, township 44, range 6 east, bequeathed to the asylum by the late Alexander Russell. . The committee are authorized to sell the farm as a unit or in parcels as their judgment may direct and to accept such price per acre as seems to them best.”

The.paper above referred to, authorizing the advisory board to sell the land, is as follows:

“St. Louis, Mo. Nov. 20th, 1905.
‘ ‘ To Whom It May Concern:
“At a.regular meeting of the board of managers of the St. Louis Protestant Orphan Asylum, held November 20, 1905', the following resolution was adopted and made a matter of record:
“ ‘Resolved, That the advisory and investment committee be and are hereby authorized and empowered to sell, and the president to convey, the farm, section 8, township 44, northeast, range 6- east, bequeathed to the Asylum by the late Alexander Russell. The committee are authorized to sell the farm as a unit or in parcels as their judgment may direct, and to accept such price per acre as seems to them best. ’
“Mrs. Nida B. Stickney, President.
“(Seal) Mrs. A. Gr. Steele,, Secretary.”

Some time later Messrs. Forbes, Bixby, Rouse and Nagel, members of the committee, met and fixed the price at which the farm should be sold, but what that price was does not appear, except it was too high to be sold for that price.

Forbes then, orally, placed the land in the hands of Mittleberg, a real estate agent, for sale, who after-wards reported that he had a purchaser who would pay $4000 for twenty-eight acres of the land.

After some negotiations, which are not here material, Mr. Forbes on May 19th, 1906 wrote the following letter to Mr. Mittleberg, to-wit:

“Dear Sir: Since my interview with you I have seen the members of the advisory and investment committee of the St. Louis Protestant Orphan Asylum in regard to the sale of the farm, and offer of $4000' for twenty-eight aeres, more or less, which was declined by said committee, and am authorized to say on its behalf that it will favorably entertain an offer of $150' per acre for the entire tract, fifty acres more or less, and authorize you to consummate a sale at the price per acre mentioned, but for the tract as a whole, and upon terms of payment subject to approval of said committee, tenant to be privileged to have his crops upon payment to purchaser of rent paid to the Asylum.”

Mittleberg was unable to sell the land for the price before stated, and on or about October 15th communicated that fact to Forbes, and notified him that he had an offer of $7000 for the entire tract.

In reply, Mr. Forbes wrote the following letter, to-wit:

“St. Louis, Oct. 17, 1906..
“Mr. Arthur Mittleberg :
‘ ‘ Dear Sir: I have conferred with the other members of the advisory committee and do not find them disposed to accept the offer of $7000 for the farm, 51 acres. The land is exempt from taxation and costs nothing to carry, and the Asylum does not need money and does not have to sell, besides the land is really worth more than the price asked and must become more valuable. ’ I cannot bring the committee to think that we ought to shade our price from $7500', but if the proposed buyer will divide the difference between $7500 and $7000, paying $7250, I will try and get the committee to authorize me to make a sale. To accept this price would involve your shrinking your commission $50, the payment of rentals to January 1, 1907, besides all costs in connection with the transaction in the way of preparation of papers in case a sale is made.
“Yours truly, M. S. Forbes.”

Without further ado, Mittleberg, upon the receipt of this letter from Forbes, entered into the contract of sale, dated October 18, 1906, heretofore set out. Upon the execution of the contract, Mittleberg testified that he notified Forbes, by phone, that he had sold the land to plaintiffs, and that Forbes replied that is all right. Forbes furnished Mittleberg with a copy of Russell’s will, also the articles of incorporation of the defendant, which were required by the examiners of the title to the property. Shortly thereafter Forbes wrote the president of defendant “that the committee of which he was a member had sold the property for $7250' cash.” After Forbes had notified defendant of the alleged action of the advisory board in selling the land, Mrs. Stickney, the president of the board of managers, wrote him the following-letter:

“Oct. 24, 1906.
“Mr. M. S. Forbes,
“Dear Sir: I hasten to place in your hands this slip of information given to me last night by our secretary. I know you will be as intensely interested as the hoax’d at a called meeting Monday, to discuss ways and means to meet the monthly bills. We are at the bottom of the.‘hole. ’ When your letter was read, followed by this offer made through a member of our board, I was directed to confer with you to see if the sale you are arranging for had gone too far to recall and give preference to this. You ought to know of this in any ease.-
“I am ill this a. m. or would call to see you.
“Most sincerely,
‘ ‘ Nid-a Bailey Stickney. ’ ’

The offer mentioned in the letter from Mrs. Stickney was made by Christ Reachl, who was in charge of the real estate of the St. Louis County Trust Company, which was to the effect that he would pay $250’ per acre for thirty acres of the tract, and stated that he had a client who would- probably give $250- per acre for the remaining twenty-one acres.

Without going into details the board of lady managers refused to convey the land to plaintiffs, and subsequently thereto the latter tendered the full contract price agreed upon between them and .Forbes, which was refused, and this suit was thereupon instituted.

I. While the record discloses the fact that the trial court excluded much of the evidence offered by the appellants, yet this being an equitable proceeding, and the excluded evidence having been preserved in the bill of exceptions, this court has the right to pass upon and to admit or reject it as the right may appear. [Gibbs v. Haughowout, 207 Mo. l. c. 391.] Without stopping to consider this preliminary question, we will consider that all the evidence offered -should have been admitted by the trial court.

Counsel for respondent contend that, notwithstanding this court may admit the rejected evidence, still the demurrer to the evidence should be sustained by this court, for the reason that the record fails to disclose that the appointment of Mittleberg as agent to sell the land in question was- in writing, and therefore the Statute of Frauds governs. It is not contended by counsel for appellants that Mittleberg was authorized in writing to make the sale in question. We .must, therefore, determine whether or not the Statute of Frauds controls.

From a careful reading of the evidence in this case it wall be seen that no one acting for the advisory committee or for the board of lady managers authorized orally or in writing the execution of the contract sued on, regardless of the Statute of Frauds.

The only written authority given by the Board of Managers was to the advisory and investment committee, and that was contained in the resolution dated November 20, 1905, heretofore copied. That authority was “to sell the farm as a unit or in parcels as their judgment may direct, and to accept such price per acre as seems to them best.” Conceding that the letter written by Forbes on May 19', 1906, expressed tbe action of the committee, Mittleberg’s authority was limited to make a sale at the price of $7500'. His letter of October 17, 1906, does not purport to express the action of the committee or authorize Mittleberg to execute the contract for the sale of the land at $7250, but was written by Forbes in his individual capacity, and states that the committee was unwilling to sell for less than $7500, and merely suggested that if the offer reported by Mittleberg was increased to $7250', he would) “try and get the committee to authorize me to make the sale.”

It was up'On the authority of that letter that Mittleberg undertook to make the contract of sale at $7250', while upon its face it unequivocally stated that the committee was unwilling to sell for less than $7500', and expressly negatived the existence of authority on the part of Forbes or Mittleberg to make a sale for a less figure.

The lack of authority in Forbes and Mittleberg to enter into the contract sued on is clearly indicated by that letter, which states that the terms of the sale as therein stated were “subject to the approval of the committee.” It is not contended that such approval was even secured. In fact this record is barren of all evidence which even remotely tends to prove that Forbes ever took any step to “try and get the committee to authorize” the sale upon the terms therein suggested, or that he ever reported it to the committee or to any member thereof.

Section 3418, Revised Statutes 1890, in so far as is material to this case, reads: “No action shall be brought to charge any executor or administrator, etc. . . and no contract for the sale of lands made by an agent shall be binding upon the principal, unless such agent is authorized in writing to make said contract.”

This court in discussing this statute in Johnson v. Fecht, 185 Mo. l. c. 342, said: “Prior to the passage of that act it had been held in this State that the authority of an agent to sign a contract for his principal for the sale of land need not be in writing, but might be conferred by parol. That statute was an amendment to the Statute of Frauds by adding to the then existing law. The law then provided that no action should be brought to charge any person upon any contract for the sale of lands, unless the contract was in writing ‘and signed by the party to be charged therewith, or some other person thereto lawfully authorized. ’ The amendment added the words, ‘And no contract for the sale of lands made by an agent shall be binding upon the principal, unless such agent is authorized in writing to make such contract. ’ Since the passage of that amendatory act, it has uniformly been held that it is necessary to show that the agent had written authority ‘to make the contract which he does malee.’ [Hawkins v. McGroarty, 110 Mo. 546; Roth v. Goerger, 118 Mo. 556; Fox v. Courtney, 111 Mo. 147; Greening v. Steele, 122 Mo. 287.]” To the same effect are Kirkpatrick v. Pease, 202 Mo. l. c. 489; and Young v. Ruhwedel, 119 Mo. App. l. c. 239.

Counsel for appellants do not question the correctness of the rule above announced as applied to individuals, but insist that the statute has no application to corporations, that is, they contend that a corporation may employ an agent by parol to sell its real estate, and that such contract will not violate the Statute of Frauds.

This contention is predicated upon the authority of Donovan v. Brewing Co., 92 Mo. App. 341. In discussing that question that learned court used this language: “But where the written contract for a lease for more than one year is made with an agent, and he was not authorized in writing, that renders the contract non-enforcible. For, construing sections 3414 and 3418, Revised Statutes 1899, of the Statute of Frauds, together, the law is that while an agent can make a contract leasing lands and tenements for less than one year without authority in writing, he cannot do so for more than one year. [Hoover v. Pacific Oil Co., 41 Mo. App. 317.] The contract in this case was made with defendant’s agent, Dienger. But from the very necessity of the thing that law may not have room for application where the agent is the agent of a corporation, and the act of contracting for a lease, or of leasing, is such an act as is within the scope of his authority. For a corporation can only act through agents, and when the act of the agent is within the limit of the authority which his agency covers, it is the act of the corporation itself, and the agent may act as though he was the principal. [Smith v. Railroad, 74 Mo. App. 48, 55.] In this case it appears from defendant’s letter introduced in evidence that Dienger was its ‘general agent for the West’ and that he had authority to sign a lease referred to in the letter, but not the one in question. The evidence in the case, including the letter, shows that Dienger’s agency was to look after the sale of defendant’s beer, which involved the renting of places where it might be sold, We, therefore, hold that in order to make a valid agreement for a lease, or the lease itself, Dienger did not need authority in writing."

With all due regard for the opinion of that learned court, we are not favorably impressed with the reasoning by which the' conclusions there stated are reached. The statute in question is general in its provisions, and contains no such exception as that interpolated into it by the court of appeals. Nor is there any better reason suggested for saying that the authority of an agent of a corporation to sell its real estate need not be in writing than there is for saying that the agent of an individual for the same purpose need not be in writing. It is common knowledge that prior to the enactment of the amendment to said section 341.8, innumerable suits had been brought and prosecuted for the specific enforcement of contracts for the sale of real estate made by agents who had no written authority authorizing them to make the sales; also for the recovery of commissions alleged to be due such agents for making such sales. In order to put a stop to that character .of litigation, and for the purpose of preventing fraud and perjury, the amendment in question was wisely enacted. The evil at which the statute was aimed was feasting upon corporations as' well as upon individual landowners; and there has been no suggestion made why the one should not be protected therefrom as well as the other.

The Donovan case, before cited, is based upon neither reason nor authority. The case of Smith v. Railroad, 74 Mo. App. 48, cited and relied upon as authority for the position that the Statute of Frauds does not apply to contracts made by agents of corporations for the sale of real estate, is not in point. There the Statute of Frauds was neither mentioned nor discussed. Nor is the case of King v. Phoenix Ins. Co., 195 Mo. 290, cited by appellants, in point. That case involved the authority of the agent of the insurance company, under section 974, Revised Statutes 1899, to bind the company by parol contract affecting its general business, and not under the Statute of Frauds governing the sale of real estate. In discussing that question, this court in that case, at page 304, said:

“Baile v. Ins. Co., 73 Mo. 371, has since been cited and approved, and the doctrine announced that, unless prohibited by statute, a corporation has all the rights of contracting, under the common law, that an individual has. [Liebke v. Knapp, 79 Mo. l. c. 24; Railroad v. Railroad, 135 Mo. l. c. 200; State ex inf. v. Lincoln Trust Co., 144 Mo. l. c. 592.] In the case last cited it was said: ‘ Corporations, when they are not restrained in any particular manner by their charters, may adopt all reasonable means in the execution of tbeir business which a natural person may adopt in the exercise of similar powers.’

“The same doctrine was taken as settled law in this State in Duff v. Fire Assn., 129 Mo. 460.

“Thus it will appear that the rule laid down in the Henning case, supra, has not been followed in this State since, but that, as pointed out in the Baile case, the statutes of this State (now Sec. 974, R. S. 1899) expressly provide that parol contracts may be binding upon aggregate corporations if made by an agent authorized to contract, and contracts may be implied on-the part of such corporations from their corporate acts, or those of an agent whose powers are of a general character. In fact, while the Henning case was not expressly overruled in the Baile case, because it was not essential to the decision of that case that it should be overruled, nevertheless, it was distinctly pointed out in the Baile case that the learned judge who delivered the opinion in the Henning case had overlooked the express statute of the State, and it was further pointed out that the correct doctrine announced by the great weight of authority is that parol contracts of insurance are valid, unless expressly prohibited by statute. The rule' thus announced in this State is in harmony with and amply supported by the great weight of modern authority. In 16 Am. and Eng. Ency. Law (2 Ed.), 852, it is said: ‘ The contract is sometimes evidenced by a binding slip signed by the insurer’s agent, or by a memorandum in his record book, but neither the Statute of Frauds nor public policy requires it to be in writing, and it is equally valid if made orally.’ Decisions from the Supreme Court' of the United States, and from the Supreme Courts of Alabama, Illinois, Indiana, Iowa, Kansas, Maine, Massachusetts, Minnesota, Missouri, Nebraska, New York, Ohio, Oregon, Pennsylvania, South Carolina and Wisconsin are cited in the note to the text sustaining that doctrine."

The statute there considered referred to the power of the agent to bind the corporation by parol contract, touching its general business, and it was not and could not have been the intention of the Legislature to have repealed the Statute of Frauds which requires the authority of the agent to be in writing, by enacting said section 974, for the obvious reason that the former amendment was enacted long after the passage of section 974.

In our opinion the rule announced in the Donovan case is unsound, and should not be followed.

"We are, therefore, of the opinion that the contract authorizing Mittleberg to sell the land in question to appellants was invalid, for the reason that it was not in writing as required by section 3418 of the Statute of Frauds.

That being true, we must hold that the action of the trial court in sustaining the demurrer to the evidence was proper.

II. It is finally insisted by counsel for appellants that, even though the contract sued on was invalid for violating the Statute of Frauds, still the judgment should be reversed, for the reason that it was subsequently ratified by Forbes. This insistence is predicated upon the evidence which tended to show that after Mittleberg had signed the contract sued on he reported that fact to Forbes, who assented orally thereto over the ’phone. Ordinarily it would not be contended that the oral approval of a contract by one member of the committee would constitute a ratification thereof by the committee itself; but in this case counsel for appellants contend that such approval by Forbes did amount to such a ratification by the committee, for the reason that with its knowledge and consent he had practically acted for it in all business transactions which had come before it for the last eighteen or twenty years.

Conceding that Forbes had so acted for the committee during that period, still it is not contended that prior to this transaction appellants ever had any business dealings with him while so acting, or that they ever heard of that custom; consequently they could not have been misled thereby, nor on that account have been induced to have entered into the contract sued on. But upon the contrary, whatever may have been the practice in that regard, when we come to consider the concrete case before us, the record conclusively shows from start to finish that Forbes did not pretend to act for the committee, but the committee acted for itself, and that whenever Forbes undertook to act for it, he invariably provided that his action should be subject to the approval of the committee. Clearly, the committee had the right to abrogate the custom and assume its .legal functions, as was done -in this case, especially when no innocent person was injured thereby. Forbes, upon being notified of the sale over the ’phone by Mittleberg, wrote to Mrs. Stickney, the president of the board of managers, notifying her and the board of the pretended contract of sale to appellants. At the time of the reception of this notice, another offer was reported and submitted to the board to purchase thirty acres of the land for $250' per acre. The only action taken by the board of managers regarding the notice given was that “the secretary and treasurer were appointed a committee to investigate the matter, as it was the universal opinion that the land was worth more.” Forbes was advised of this action of the board, and inquiry was made of him “if the sale you are arranging had gone too far to recall and give preference to the offer of $250’ an acre. ’ ’ Counsel for appellants contend that this action of the board of managers also amounted to a ratification of the sale made by Mittleberg. That action of the board, instead of evincing an intention or desire to adopt or ratify the sale made to appellants, clearly indicates a disapproval and a repudiation of Forbes’s oral approval of the sale, unless “it had gone too far to recall.”

Independent of this disapproval, ratification presupposes full knowledge of the facts, which is wholly wanting in this case. Clearly the board of managers were laboring under the mistaken belief created by Forbes’s letter that the pretended contract of sale was “the action of the committee,” exercised under the authority of the resolution adopted by the board, .November 20, 1905, heretofore copied in the statement of the case. The authority conferred upon the committee by that resolution was one of confidence and trust, and could not be delegated by it to Forbes or Mittleberg without the consent of the respondent, which was never obtained.

Judging from the character of the power conferred upon the committee by that resolution, there can be no doubt but what the board of managers, in the language of the counsel for respondent, “would have promptly disapproved the contract had they known that it represented the unauthorized action of Forbes and Mittleberg instead of the action of the committee. ’ ’

This entire record fails to show a ratification of the pretended sale of this land for $7250 by either the advisory and investment committee or the board of lady managers, which the contract sued on expressly provided for.

But conceding that the pretended sale for $7250 was ratified by either the committee or the board of managers, or both, yet the record discloses the fact that Forbes on his individual responsibility changed the terms of the contract from $7250 cash to $5250 cash and the remaining $2000 on time, to be secured by deed of trust on the property sold. This alteration of the contract was neither authorized, ratified nor reported to the advisory and investment committee or to the board of managers.

Viewing this case in the light of the Statute of Frauds, or under the doctrine of ratification, we have no hesitancy in saying that appellants wholly failed to make ont a case. While in equitable proceedings the practice to give and refuse demurrers to the evidence does not exist, still in the case at bar no injustice to appellants has been shown or suggested from the trial court having resorted to that course of procedure.

Having discovered no reversible error in the record, the judgment of the circuit court should he affirmed. It is so ordered.

All concur.


author: GANTT, P. J.

text:
    THE STATE v. EVERETT CASTO, Appellant.
    Division Two,
    December 13, 1910.
    1. IMPROPER REMARKS IN OPENING STATEMENT: Discharging Panel. In a prosecution for abortion, tbe prosecuting attorney, in impaneling tbe jury, said tbe crime was a misdemeanor and that defendant bad seduced tbe deceased girl, to wbicb defendant objected, and tbe court not only sustained tbe objection but admonished tbe prosecuting attorney not to make any improper statement. Tbe voir dire examination continued, and tbe panel was qualified, but before tbe jury was sworn defendant filed a motion to discharge tbe entire panel on account of tbe statement about seduction, but made no effort to interrogate tbe jury to ascertain whether or not it would in any way influence them in reaching a verdict. Eeld, that it is not tbe practice of tbe court to pass upon tbe admissibility of testimony during tbe opening ’statement, and there being nothing to indicate that tbe prosecuting attorney made the statement otherwise than in good faith, and may in good faith have thought testimony as to seduction would be material and admissible, and therefore, under tbe circumstances, tbe court properly overruled tbe motion to discharge tbe panel.
    2. ABORTION; Necessary to Preserve Life: Burden of Proof. Tbe information should charge that tbe abortion was not necessary to preserve tbe life of tbe woman, and bad not been advised by a physician as necessary; but even if tbe burden is on tbe State to prove that negative, it shifts to defendant when tbe uncontradicted evidence shows she was in perfect health up to tbe time she was taken by defendant to a special room rented by tbe doctor for him and her, because thereafter the necessity for tbe abortion was peculiarly within the knowl-, edge of defendant and his co-indictee, tbe doctor.

      3. CONSPIRACY: Charged: Proof. In order to render the declarations and statements of one conspirator admissible as evidence upon the trial of bis co-conspirator, it is not necessary that the conspiracy be alleged in the indictment or information.
    4. -: Proof of Existence: Acts and Words Admissible: Before Abortion. It is not necessary that the conspiracy be shown to exist before the acts and statements of a co-conspirator may be admitted in evidence. Nor is it necessary that some witness testify directly to the existence of the conspiracy. Conspiracies, like frauds, are usually concocted in secrecy and can seldom be 'shown by positive and direct testimony, and this makes it necessary to permit them to be established by proof of cogent facts and circumstances tending to show their existence. And in this case the evidence is reviewed and held to be sufficient to establish the existence of a conspiracy between defendant, a doctor and another to commit a criminal abortion on a woman, and to show defendant knowingly participated therein, and the declarations and acts of the other two were admissible in evidence against him.
    5. -: Abortion. In an abortion case evidence of the acts and declarations of all the conspirators up to the death of the woman is admissible, and should not be restricted to their acts and statements up to the time of the abortion.
    Appeal from Pettis Circuit Court. — Hon. Louis Hoffman, Judge. . .
    AeEIKMED.

      Geo. F. Langan and 8. E. Moore for appellant.
    (1) As shown by the record there is not a word of evidence that tends to show or to intimate that the man Corbett had any knowledge, or even grounds, from which to suspect that Dr. Simonds or anyone else had performed a criminal operation, or any other kind, on Anna Bell; and as far as the record shows, he did not know and he never saw the defendant Casto. But the witness Brown was permitted to tell everything that Corbett said and did, from the time Anna Bell was brought to his home to the time of her death. (2) The court also permitted the witness Stotts to testify to statements made by Dr. Simonds, before any evidence whatever had been offered to prove a conspiracy. “It is well settled that in order that the acts and declarations of one conspirator may be admissible in evidence against his co-conspirator, it must first be made to appear that a conspiracy existed, and that such acts and declarations were in furtherance of the common design.” 201 Mo. 727. In this case there was no pretense of showing a conspiracy before the introduction of the statements of the co-conspirators. It may be claimed that there was evidence later on in the case, tending to prove a conspiracy between Dr. Simonds and this defendant Casto, but there was at'no time any evidence tending to show a conspiracy with Corbett. Yet his acts and statements were put before the jury and never withdrawn, by instruction or otherwise. (3) In addition to these serious and fatal errors, the appellant contends that the conduct of the prosecuting attorney, when examining the jurors on their voir dire, in saying that this defendant Casto had seduced the girl Anna Bell, was so prejudicial to the rights of the appellant as to constitute reversible error. It must be borne in mind that there was not a word of evidence or an intimation by a single witness that Casto had seduced the girl. If the evidence had tended to prove this charge,, it might be said that the error was harmless. It was the only statement before the jury that tended to prove any motive for Casto to commit the crime. It was made by a sworn officer of the State, and it is unreasonable to say that it did not have its influence on the minds of the jurors.

      Elliott W. Major, Attorney-General, and Charles G. Revelle, Assistant Attorney-General, for the State; Harvey D. Row of counsel.
    (1) The second count of the information is predicated upon section 4450; R. S. 1909, and fully meets the objections and requirements announced in State v. Bmerich, 87 Mo. 110; State v. Meek, 70 Mo. 355. (2.) The record discloses that while the jury was being impaneled and qualified, the prosecuting attorney, hi stating the nature of the charge- on which defendant was to be put upon trial, said defendant had seduced Anna Bell. The statement alone, however improper, afforded no basis for a challenge to the array. After the statement was made counsel for the defense had every opportunity to iully interrogate the jurors, which the record discloses they did, and ascertain whether this statement, or any other influence, would prevent them from trying the cause fairly and impartially. Each member of the panel thereafter qualified to the satisfaction of appellant, and he was accorded in this respect the only right to which he was entitled, a fair and impartial jury. State v. Hottman, 196 Mo. 122; State v. Matthews, 88 Mo. 124; Barnett v. Dalton, 69 Miss. 617. (3) Objections were interposed to evidence of statements and acts of appellant’s co-defendants made and performed in the absence of appellant. This evidence was admitted upon the theory of a conspiracy entered into by appellant and his co-defendants for the purpose of producing the abortion. .The record is replete with evidence showing that these parties were acting together in the accomplishment of a common and unlawful design, steadily pursuing and finally accomplishing the same object, and jointly guilty of conduct which does not harmonize with the actions of innocent men, and which is inconsistent with any reásonable theory except that they were criminal conspirators. A conspiracy, like any other fact, may be established by circumstantial evidence, and it is not necessary that it be proven by express agreement between the conspira,tors, or by direct evidence of any agreement. State v. Kennedy, 177 Mo. 166. In tins case the trial court, whose duty it was in the first instance to say whether there was any evidence of conspiracy,- has found that there is such evidence, and its finding was sustained by the finding of the jury to which the question of conspiracy was properly submitted. The evidence of conspiracy in this cause is sufficient for that purpose. State v. Walker, 98 Mo. 103; State v. Roberts, 201 Mo. 728; State v. Kennedy, 177 Mo. 130; State v. Spaugh, 200 Mo. 591; State v. Darling, 199 Mo. 201; Statev. Vaughn, 200 Mo. 20; State v. Ross, 29 Mo. 32; State v. Hickman, 75 Mo. 416; State v. Duncan, 64 Mo* 262. (4) The evidence discloses that on the evening of May 2nd, when the girl was taken to the room in Sedalia, this being but one week before she was delivered of the child, and but two weeks before her death, she was in good health. After this showing was made, the burden of proving that the operation was necessary in order to preserve the life of the girl, or that such operation had been advised by a physician to be necessary for that purpose, was on appellant. State v. Meek, 70' Mo. 355; State v. Hathaway, 115 Mo. 56* Under the decisions of this court, as well as common-law authorities, it is necessary for the indictment to negative exceptions which, under the statute, excuse the act, but the burden of establishing the excuse and bringing the accused within the exception is always on the defendant when such matters are within the peculiar knowledge of such defendant, as in this case. State v. Woodward, 182 Mo. 391; State v. Lipscomb, 52 Mo. 32; State v. Hathaway, 115 Mo. 36.
   GANTT, P. J.

At the November term, 1908, of the circuit court of Pettis county, the prosecuting attorney filed his information, containing two counts. The second count is in the words and figures following, omitting caption:

“And the said Harvey D. Dow, prosecuting attorney for the State of Missouri within and for the body of the county of Pettis, upon his oath of office as such prosecuting attorney, further informs the court:
“That, William T. -Simonds, • Everett Casto and G. H. Corbett, at the county of Pettis and State of Missouri, on the--day of May, 1908, unlawfully, willfully and feloniously then and there did make an assault in and upon the body of one Anna' Bell, a woman then and there being pregnant with a child, and did then and there willfully, unlawfully and feloniously use and employ a certain instrument or other hard substance, the nature and description whereof is to the prosecuting attorney unknown, then and there did unlawfully, willfully and feloniously insert, thrust and force the said instriunent aforesaid into the private parts and womb of the said Anna Bell, and thereby then and there did greatly wound the said Anna Bell, in and upon the body and womb of the said Anna Bell, with the felonious intent thereby then and there to procure an abortion or miscarriage of the then existing pregnancy of her the said Anna Bell, and that the same not being then and there necessary to preserve the life of said pregnant woman, Anua Bell aforesaid, and that the same not having been then and there advised by a physician to be necessary for the purpose of procuring an abortion or miscarriage to preserve the life of the said Anna Bell, and by means and in consequence of the unlawful, willful and felonious employment and use of the said instrument or other hard substance as aforesaiddn and upon the body and womb' of her the said Anna Bell aforesaid, by the said William T. Simonds, Everett Casto and G-. H. Corbett aforesaid, she, the said Anna Bell then and there became greatly wounded and mortally diseased of her womb and body, and then and there did languish and languishing did live, from the said — — day of May, 1908, until the 23d day of May, 1908', at the county of Pettis and State of Missouri, the said Anna Bell of the mortal wound and disease aforesaid did die.
“And so the prosecuting attorney aforesaid, of the county and State aforesaid, upon his oath aforesaid, does say that the said William T. Simonds, Everett Casto and Gr. H. Corbett, the said Anna Bell in the manner and by the means aforesaid unlawfully, wickedly, willfully and feloniously did kill, slay and murder against the peace and dignity of the State.”

Which information was duly verified, before the clerk of the court, December 1, 1908.

The defendants were arrested and duly arraigned. The cause was continued from term to term until the November term, 1909, at which term a severance was ordered and defendant Casto was put upon his trial before a jury duly impaneled,' and was found guilty as charged in the foregoing count and his punishment assessed at four years’ imprisonment in the penitentiary. Motions for a new trial and in arrest were duly filed and overruled and defendant was sentenced in accordance with the verdict. From that sentence he appeals to this court.

On the part of the State the testimony tends to prove that on May 2, 1908, and for several months prior thereto, one Anna Bell, a female, was employed as a servant, in the home of John T. Stinson, secretary of the State Fair Association, in the town of Sedalia, Missouri. At about eight o’clock on the evening of May 2d defendant Casto went to the home of Mr. Stinson, to whom he represented that he was the brother of Anna Bell; that he had received a telegram announcing the serious illness of their mother at her home in Cole Camp, Missouri,, and that Anna Bell was then upstairs arranging to accompany him home, he having immediately before made arrangements with her to that end. In a few minutes thereafter he and the girl left the house, saying they intended to catch a train that evening for Cole Camp. Instead of going to Cole Camp defendant took the girl directly to a house in Sedalia where his co-defendant, William T. Simonds, a physician, was rooming, and there defendant and Simonds made arrangements with the proprietor for a room to be used and occupied by defendant and the girl. Simonds represented to the proprietor that he knew both defendant and the girl, and that they were respectable people. This was on Saturday night, and defendant and the girl jointly occupied the room until Monday, at which time defendant paid part of the room rent and left, saying he would return the following day. Appellant did no't return, but the girl occupied the room, in which she constantly remained, until six o’clock Saturday evening, May 9th, when one Gr. H. Corbett, co-defendant, took her in a buggy to a house in the country, about six miles south of Sedalia, arriving there between eight and nine o’clock on that evening. This house was occupied only by Corbett and a colored boy, and when Corbett arrived there with the girl she was crying and manifesting many signs of pain and suffering. Throughout the night and the following morning her sufferings continued, and Corbett and the colored boy attended her, Corbett at different times ‘ administering her medicine. During the following morning, and while she and Corbett were in the room alone, she was delivered of an immature child, which Corbett placed in a bucket and afterwards buried just south of his house. Through the following week the girl remained at this house unvisited by any one except Simonds, the colored boy and Corbett, and on Saturday evening of that week she died. After her death the body was removed to the undertaker’s, where a postmortem examination was conducted by the coroner and Dr. Ferguson. This examination disclosed that an operation had been performed, by the use of certain instruments, causing abortion and the death of the woman. The womb was much contused and lacerated, and almost in a state of decomposition, all of which was due to the operation.

' At the time defendant took the girl from the home of Mr. Stinson she was apparently in perfect health and showed no evidence of pregnancy. The appellant and the physician jointly arranged for the use of the, room to which the girl was first taken, Simonds vouching for the character of the renters, and making most of the preliminary arrangements. Appellant and the girl jointly occupied the room from Saturday night until Monday morning, when appellant paid part of the room rent and left, promising to return and pay for the room during its occupancy by the girl. Simonds, the physician, attended the girl constantly, administering to her both before and after the departure of appellant. During the week that she remained in Sedaba Simonds made daily visits to her room, and after she was taken to the house occupied by Corbett and the colored boy he continued his. professional calls.’ From the time she was taken by appellant to this house where Simonds also roomed, until her death, she was neither visited nor seen by any persons except appellant, Corbett, Simonds, the colored boy, and one other man who was unacquainted with her, and who, in response to a note sent by her, went to the room in Sedaba, where he remained but a few minutes.

Simonds, the physician, stated to the proprietor of the room that the girl was brought by appellant .from Cole Camp to Sedaba for medical treatment, and Corbett said it was. through arrangements made by him with Simonds that the girl was removed from Sedaba to his house. As Corbett was taking the body of the child from the girl’s room for the purpose of burying it, he told the colored boy that no one knew anything concerning the affair, and admonished the boy to say nothing of it to any one.

Appellant offered no evidence in his own behalf, but stood on a demurrer to the State’s evidence.

This prosecution is for the offense denounced in section 1853, Revised Statutes 1899 (now Sec. 4459', R. S. 1909), which provides: “Every person who shall willfully administer to any pregnant woman any medicine, drug or substance whatsoever, or shall use or employ any means whatsoever with intent thereby to procure abortion or the miscarriage of • any such woman, unless the same shall have been necessary to preserve the life of such woman, or shall have been advised by a physician tó be necessary fox that purpose, shall, upon conviction, be adjudged guilty of a misdemeanor and punished by imprisonment in a county jail not exceeding one year, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment ; but if the death of such woman ensue from the means so employed, the person so offending shall be deemed guilty of manslaughter in the second degree.”

The second count of which defendant was found guilty aptly and sufficiently charges manslaughter under said section. Indeed the information is not assailed in this court.

I. While the jury was being impaneled, the prosecuting attorney, in stating the nature of the charge on which defendant was to be put on trial, said: " Gentlemen, the charge in this case is that of manslaughter. The crime, as herein charged, was committed along in the month of May, 1908. One Anna Bell, a young girl, who was living here in the city of Sedalia, and who the defendant, Everett Casto, seduced.”

Counsel for defendant objected at once to the statement that defendant had ‘‘seduced the deceased,” and the court not only sustained the objection, but admonished the prosecuting attorney to refrain from any improper statement. Thereupon counsel proceeded with the voir dire examination, and the panel qualified, but before the jury was sworn to try the cause, counsel for defendant filed a formal motion to discharge the entire panel on account of said statement. There is nothing to indicate that the prosecuting attorney made the statement otherwise than in perfect good faith, and believing he might establish the truth of the assertion, but independent of tills, counsel had full opportunity to interrogate the jury and ascertain whether said statement would in any way influence them in reaching their verdict. It is not the practice to pass upon the admissibility of evidence during an opening statement.

Of course, the court can exclude wholly irrelevant matter, but the court cannot know in advance that counsel cannot establish a fact which may prove material, and counsel may in perfect good, faith think testimony material which the court may exclude upon objection.

We think the court properly overruled the motion to set aside the panel.

II. The information negatived the exception in the statute that the abortion was necessary to preserve the life of the girl or had been advised by a physician to be necessary, as our decisions require. [State v. Meek, 70 Mo. 355; State v. Hathaway, 115. Mo. l. c. 36.]

If the burden was on the State to prove this negative, we think when it appeared by the uncontradicted testimony that u-p to the very hour Anna Bell was taken to the Stotts house, she was in perfect health, the burden then shifted to defendants to show that the abortion was necessary to preserve her life, because if such was the case and abortion had been resorted to for that purpose, the necessity was a matter peculiarly within the knowledge of defendant, and the doctor.

III. The defendant strenuously objected to the acts and declarations of Dr. Simonds on the ground that no conspiracy had been charged and the evidence had not shown such conspiracy prior to the admission of his acts and statements.

As to the first of these objections, it is the settled law of this State that it is not necessary, to render thé declarations of one conspirator admissible against his fellow, that the conspiracy should be alleged in the indictment or information. [State v. Kennedy, 177 Mo. l. c. 165; State v. Collins, 181 Mo. l. c. 261.]

If by the second ground of the objection, it is meant that no witness had testified directly to a conspiracy on the part of defendant Casto and Dr. Simonds to produce the abortion, it is true, but as has often been said by courts and test-writers, from their very nature conspiracies, like frauds, are usually concocted in secrecy and can seldom be shown by positive and direct testimony, and this makes it peculiarly necessary to permit them to be established by proof of facts and circumstances, more or less cogent, tending to show their existence. A conspiracy, like other facts, or crimes, may be established by circumstantial evidence. 'Without repeating the facts set forth in the statement, we think that evidence clearly points to defendant and Dr. Simonds as acting together for the accomplishment of one unlawful and criminal purpose, and that was to produce an abortion on Anna Bell. To rational minds, the conduct of defendant in going to Mr. Stinson’s where the girl was at work, and falsely representing himself to be her brother and that he had come to take her to her sick mother at Cole Camp, and then immediately taking her to the room where the sequel shows the criminal practices were resorted to which finally produced the abortion, is strongly indicative of conscious guilt. In view of the subsequent facts, his conduct can only be ascribed to a guilty motive and a knowledge peculiar to himself and the girl at that time.

An innocent purpose cannot be ascribed to his remaining in the room at the Stotts house. Whether single or married, his remaining and occupying the same room and bed with the young girl showed a guilty relation, one that caused him to feel it incumbent on himself to pay the rent of the room. When his conduct towards the young woman is borne in mind with the fact of her pregn'ancy at that time, the question as to his motive in coming from his home in Benton county and taking her away from her employer’s house, answers itself. When he gets her to the Stotts house his co-defendant, Dr. Simonds, is there ready to vouch- for the respectability of both the girl and Casto and to secure them a room. Thereupon the visits of the doctor begin and continue with regularity, each day for a week, and until the healthy robust girl has become very sick, and then it is the defendant Corbett is mysteriously apprised of the girl’s condition, and his good offices invoked to get her out of the city to his cheerless abode, six miles in the country, with no woman there to minister to her, and no person in the house but Corbett and the negro ex-convict.

These things could not have happened by chance. The court hearing this evidence and noting circumstances, had ample ground to say there was sufficient evidence of a conspiracy to admit the statements of one of them against the others.

While defendant concedes there was evidence tending to show a conspiracy between Simonds , and Casto, he insists there was nothing to show a conspiracy with Corbett.

Corbett’s conduct is utterly inexplicable on any other theory than that he was fully ^advised of the purpose to produce the abortion and to hide the result.

Why should a perfect stranger to this girl, unsolicited, appear at the Stotts house and begin at once to move her small effects to his place six miles in the country? Why should a normal man, with even the ordinary instinct of humanity, not to say delicacy, become a party to this scheme of taking this poor suffering unfortunate to his house in the country where there was no woman to give her those attentions which only a woman could properly render in her then condition? Why when the abortion was complete, was not some woman called in to nurse her? It is almost incredible that such a transaction could have been deliberately planned and executed in a civilized community. Corbett’s acts and statements were facts inseparably conneeted with, the conspiracy and final culmination in the death of the girl.

The court excluded all that was said and done after the abortion itself was complete, and of course defendant is in no attitude to complain of this ruling, but we think evidence of the acts and declarations of all three of the defendants was admissible up to the death of the girl. The offense of manslaughter for which defendant was on trial and of ydiich he was convicted was not complete until her death.

After a careful consideration of the whole evidence and record in this case, we have reached the conclusion there is no reversible error in the admission of testimony or in the instructions of the court and the judgment is affirmed.

Burgess and Kennish, JJ., concur.


author: KENNISH, J.

text:
    THE STATE v. WALTER BISHOP, Appellant.
    Division Two,
    December 13, 1910.
    1. VERDICT: General and Special: When Sufficient: In Criminal Case. A general verdict in a criminal case, finding tile defendant guilty as charged, or guilty as charged in the information, is sufficient. But it is always within the province of a jury to return a special verdict finding the facts constituting the offense, but in such case the verdict must find all the essential elements of the offense, or it will be invalid. A verdict reading,“'We, the jury, find the defendant guilty of felonious assault with malice as charged in the information, and assess,” etc., under an information charging a felonious assault on purpose and of malice aforethought, is a general verdict, and the use of the words “felonious assault with malice,” while unnecessary, did not have the effect of changing the verdict from a general to a special one.
    2. INFORMATION: Preliminary Hearing: Waiver. It is not necessary that the record on appeal affirmatively show that defendant was accorded a preliminary hearing. Unless it appears from the record that at the trial he raised the objection that he had been denied a preliminary hearing and saved exceptions to the court’s ruling thereon, he will be held on appeal to have waived his right to such a hearing.

      3. CONTINUANCE: Facts Absent Witnesses Would Testify. Where the application for a continuance is based, on tlie absence of witnesses, and the facts they would testify to if present, as set forth therein, are plainly hearsay and would not be admissible if the witnesses were present, it is not error to overrule the application.
    4. -: Application: Preserved in Record Proper. The action of the court in overruling an application for a continuance is a matter of exception, and hence the application should appear in the bill of exceptions, and if preserved only in 'the record proper cannot be considered on appeal.
    Appeal from Vernon Circuit Court. — Hon. B. G. Thur- ' man, Judge.
    Affirmed. .

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) The verdict is definite, certain and responsive to the issues joined'. (2) Where there is no probability that if the absent witness had appeared and testified, as stated in the affidavit for continuance, it would have changed the result of the trial, the trial court cannot be convicted of error in overruling the application for continuance. State v. Temple,-194 Mo. 250; State v. Wor- ■ rell, 2fi Mo. 256; State v. Kindred, 148 Mo. 281. The affidavit for continuance was incomplete. It did not state or inform the trial court of the name of the witness who, in the conversation with the two absent witnesses, stated he had shot Webb. It left this name blank. The court’s action in overruling the motion for continuance should be upheld upon this ground alone, if for no other, for the application for continuance must be in good faith. State v. Detmar, 124 Mo. 426; State v. Horn, 209 Mo. 452’. The appellant produced three witnesses, Fred Butler, Harrison Baker and Dodie James, who testified that they heard Tom McGuire admit he shot Webb, and one of these witnesses, Harrison Baker, testified that he heard Tom McGuire make the admission in the presence of Fred Brnton and Charles Brnton, the two witnesses upon whose absence the application for continuance was founded. Therefore, this fact of admission by McGuire was proved in the trial by three other witnesses, and had Charlie and Fred Bruton been present and testified the result of the trial would not have been changed. Freliegh v. State, 8 Mo. 606; State v. Hays, 24 Mo. 369; State v. Clark, 147 Mo. 20. The question of a continuance is a matter resting, to a large extent, within the discretion and judgment of the trial court, and unless it appears that the trial court has abused its judicial discretion, the appellate courts will not interfere. State v. Tettaton, 159 Mo. 354; State v. Webster, 152 Mo. 87. (3) In order to preserve the action of the trial court in overruling an application for a continuance, the same must be preserved in the bill of exceptions. State v. Gatlin, 170 Mo. 35^; State v. Gordon, 196 Mo. 198. The application for continuance is not incorporated in the bill of exceptions. It is found in the record proper and cannot be reviewed by this court.
   KENNISH, J.

Defendant was convicted in the circuit court of Vernon county of a felonious assault on purpose and of malice aforethought, made upon G. C. Webb, at said county, on the 10th day of November, 1908, by shooting the said Webb with a pistol. His punishment was assessed at imprisonment in the penitentiary for a term of three years. After the proper motions were filed and overruled judgment was pronounced and the defendant appealed to this court.

Thomas McGuire was jointly charged with defendant, but upon the application of McGuire a severance was granted, and a nolle prosequi was entered as to him before the commencement of the trial, in order that he might testify as a witness for the State.

The evidence for the State tended to prove that defendant and witness McGuire on the night of the 10th day of November, 1908', were riding without permission on the platform of the blind baggage car on a passenger train of the Kansas City Southern Railway Company, running from Mena, Arkansas, to Kansas City, Missouri. They were discovered by the porter of the train at the town of Richards, in Vernon county, this State, and were ordered to get off, which they did, but went forward and got upon the car next to the tender. At the station of Stotesbury, in the same county, while the train was stopped, the porter and G. C. Webb, the latter a private detective of the railway company, went forward with a lantern and demanded of defendant and McGuire that they get off the train. McGuire complied promptly, and while Webb was giving attention to him the defendant, unobserved, jumped down and presented a revolver at Webb’s breast and ordered him to throw up- his hands. Webb obeyed and defendant backed him upon the platform, keeping the revolver close to Webb’s body. The latter finally struck the defendant’s arm, intending to knock the revolver out of his hand. The defendant immediately began shooting at Webb and the latter returned the fire. Webb was shot in the leg. The defendant and McGuire made their escape and were not apprehended until about six months .thereafter.

The defendant was a witness in his own behalf and testified that he, instead of McGuire, got off the train first; that McGuire did the shooting and that he took no part whatever in the assault on Webb and the porter.

Appellant is not represented by counsel- in this court and we have examined the record to- ascertain what exceptions were taken at the trial to the rulings of the court and properly preserved for review on this appeal.

The motion in arrest of judgment strikes at the sufficiency of the information, the form of the verdict and the failure of the record to show that the- defendant had heen accorded a preliminary examination before the information was filed against him.

The information is in accordance with approved forms and is not open to objection. [Kelley’s Crim. Law and Prac., 576; State v. Bond, 191 Mo. 555.]

The verdict is as follows: “We, the jury, find the defendant guilty of felonious assault with malice as charged in the information, and assess his punishment at imprisonment in the penitentiary for a term of three years. F. B. Calloway, Foreman.” A general verdict finding the defendant guilty as charged, or as charged in the information, when returned in response to an information charging one offense, is sufficient. [State v. Shour, 196 Mo. 202; State v. DeWitt, 186 Mo. 61; State v. Cook, 58 Mo. 546.] It is always within the province of the jury to return a special verdict-finding the facts constituting the offense, and in such case the verdict must find all the essential elements of the offense or it will be invalid. [State v. DeWitt, supra, and cases cited; 1 Bishop’s New Crim. Proc., sec. 1006.] In the case before us, omitting the words, “felonious assault with malice,” the verdict is clearly general in form, and the use of those words, while unnecessary, did not have the effect of changing it from a general to a special verdict, and we hold the verdict responsive to the issues and sufficient. [State v. Williams, 191 Mo. 205; 1 Bishop’s New Crim. Proc., sec. 1006.]

There is no merit in the contention that the defendant had not been accorded a preliminary examination before the filing of the information. It is not necessary that the record should affirmatively show that such right had been accorded. In order that the defendant may avail himself on appeal of his right to a preliminary examination it must appear in the record that the question was properly raised by him at the trial and exceptions saved to the adverse ruling of the court thereon. Such showing has not been made in this case and under the authority of the following decisions we must hold that the defendant, if denied this right, has waived it and cannot be heard to complain: State v. Pritchett, 219 Mo. 696; State v. Jeffries, 210 Mo. 302; Ex parte McLaughlin, 210 Mo. 657; Ex parte Buckley, 215 Mo. 93.

The action of the court in overruling the defendant’s application for a continuance is assigned as error. The application was based upon, the ground of absent witnesses. The facts set forth in the application as the evidence expected to be obtained from the absent witnesses are plainly hearsay and would not have been admissible in evidence if the witnesses had been present at the trial, and for that reason the court properly overruled the application. Besides, the defendant is not in a position to complain of the ruling of the court for the reason-that the application appears in the record proper only and is not included in the bill of exceptions. The action of the court in overruling an application for a continuance is a matter of exception and must be preserved in the bill of exceptions in order to be reviewable in this court. [State v. Gatlin, 170 Mo. 354; State v. Bates, 182 Mo. 70.]

We have carefully examined the record as to the numerous rulings of the court complained of in the giving and refusing of instructions and in the admission and exclusion of testimony, and finding no reversible error therein the judgment is affirmed.

Gantt, P. J., and Burgess, J., concur.