author: ROY, C. PER CURIAM.

text:
    KINLOCH TELEPHONE COMPANY, Appellant, v. CITY OF ST. LOUIS.
    Division Two,
    July 5, 1916.
    1. TORTFEASORS: Several Liability. Section 5431, R. S. 1909, requiring joint tortfeasors to contribute to the redress of a private wrong, applies to cases of personal injuries resulting from a negligent omission of duty.

      2. -: -: Judgment Conclusive. A judgment against two defendants for damages for personal injuries due to negligence is conclusive as to the liability of each to the judgment plaintiff. After such judgment has become final, neither can be heard to contend that it was not liable to the plaintiff for damages in that action.
    3. -: City and Telephone Company: Negligence. A telephone company which has erected its poles along a street is liable over to the city for any damages the city may be compelled to pay to a pedestrian who has fallen into a hole caused by the negligence of the telephone company.
    4. ——: Contribution: Primary Liability of the Telephone-Company. Where the record shows a primary liability ol the telephone company as between it and the city for injuries ■ due to the falling of a pedestrian into a hole resulting from the placing of a telephone pole along a public street, the company does not make out against the city a prima-facie case for contribution by alleging and proving that both it and the city were sued by the pedestrian and that he recovered a judgment against both jointly.
    5. -: -: -: Evidence: Sole Liability of One Defendant. There is a wide difference between the primary liability of tortfeasors and the sole liability of one of them. Where both the city and a telephone company were sued for damages for personal injuries due to the falling of a pedestrian into a hole negligently allowed to exist at the side of a public street where a telephone pole had been placed, and judgment was rendered against both, neither can claim in an action for contribution that the other was solely liable to the pedestrian, for the judgment concludes both against such contention; and, therefore, it is not error, in a suit by the telephone company against the city for contribution, to exclude testimony tending to show that the hole was not ■ caused by the telephone company, but by a leaking fire plug. Such testimony would not show that the city was primarily liable, but would show a sole liability on its part.
    6. -: -: Estoppel: Must Be Pleaded. Estoppel to be available must be pleaded. The city, when sued by a telephone company for contribution for one half of the judgment rendered in a negligence case against both, cannot be heard to contend that an agreement between the attorneys of the two defendants as to the course of defense to be pu-sued in the negligence case estops the city from asserting the primary liability of. the company, unless it pleads such agreement as estoppel.

      7. -: -: -: Agreement Upon a Common Defense. The facts of this case do not show that two tortfeasors, jointly sued, had an agreement, in the interest of a Common defense, under which neither would attempt to cast primary liability upon the other; but under the agreement to make a joint defense, each was free to show the other solely liable. In a suit for damages for a tort against two tortfeasors, each may show that the injuries were due to the negligence of the other alone, but neither can show that the other was alone primarily liable.
    8. -: Telephone Company: Erection of Poles: Bond to City. A bond given by a telephone company, which by the permission of the city has erected telephone íoles along a public street, obligating the company to save the city harmless from all loss or damage by reason of the exercise of the permission, fixes primary liability upon the company, as the law does without the bond, for damages to a pedestrian falling into a hole near where a pole was placed.
    Appeal from St. Louis City Circ'uit Court. — Hon. W. B. Homer, Judge.
    Affirmed.

      Benjamin H. Charles for appellant.
    (1) Tbe defendant is liable to contribution under tbe statute. R. S. 1909, sec. 5431; Brewster v. Gauss, 37 Mo. 518; Eaton v. Trust Co., 123 Mo. App. 117; Judd v. Walker, 158 Mo. App. 168; Spalding v. Bank, 78 Mo. App. 374; Mulderig v. Railroad, 116 Mo. App. 672. (2) Tbe defendant is liable to contribution at common law. Iron Co. v. Rice, 179 Mo. 494; Mayberry y. Railroad, 100 Minn. 79, 12 L. R. A. (N. S.) 678. Tbe pleadings in tbe Merritt case show that tbe judgment there was bottomed on tbe concurring negligence of both defendants. (3) Tbe issues in this ease did not become res adjudícala by the judgment in tbe Merritt case. Parol evidence is admissible to show the' true relations existing between tbe parties. St. Joseph v. Union Ry. Co., 116 Mo. 636. Tbe question as to which of tbe two defendants would be liable to indemnity in favor of tbe other, or whether one would be liable in contribution to the other, cannot be determined in the original action against both of them. Miller v. United Rys. Co., 155 Mo. App. 547. The plaintiff in the Merritt case was in no way interested in any question of primary and secondary liability, as between the defendants, and no such question was there litigated. (4) Defendant offered no evidence of any facts tending to show that the Kinloch Telephone Company was primarily liable to Merritt. It merely sought to overcome the prima-facie case made by the plaintiff under the statute: (a) By arguing that the Merritt judgment rested upon the primary liability of the Kinloch Telephone Company, and (b) by introducing in evidence two bonds given by the Kinloch Telephone Company to the city, conditioned for the faithful compliance by it with the provisions of certain general ordinances regulating wire-using corporations. The judgment in the Merritt case is conclusive as to these facts only, viz.: that the street was in an unsafe condition; that Merritt was injured by reason thereof, without fault on his part; that he sustained damage to the amount of four thousand dollars; and that each defendant was liable therefor. “The scope of the estoppel created by the first judgment cannot be extended beyond the points and issues necessarily determined by it.” St. Joseph v. United Rys. Co., 116 Mo. 643;' Black on Judgments, 574. The subject of these ordinances has nothing to do with telephone poles. The bond was, therefore, not applicable to any work done about a telephone pole. Neither of these bonds was given to indemnify the city against liabilities for injuries resulting from negligence. (5) The defendant city is precluded, by its own conduct in the Merritt case, from asserting that the Kinloch Company was primarily responsible for the injuries to Merritt. It had an agreement with the Kinloeh Company, in the interests of á common and joint defense, that-neither defendant would attempt to cast any primary liability upon the other. And it argued that Merritt had made no case of negligence against the ■ Kinloeh Compány, that the uncontradicted evidence showed that the original excavation was refilled by the Kinloeh Company; and that there was no testimony that the hole was neglegently and carelessly filled. The law will not permit the defendant now to assume a position inconsistent with that taken by it in the Merritt case: Bigelow on Estoppel (6 Ed.), p. 732; Í6 Cyc. 801, 805; Bensieck v. Cook, 110 Mo. 182; School District v. Dorton, 145 Mo. 304; Greeley v. Bank, 103 Mo. 212; Coney v. Laird, 153 Mo. 408; Nave v. Todd, 83 Mo. 601; Fairbanks v. Baskett, 98 Mo. App. 64.

      Charles H. Deues and Truman P. Young for respondent.
    (1) The plaintiff is not entitled to recover under the petition and the facts in this case because the Kinloeh Telephone‘Company created the condition in the street which caused the injury to Merritt and was primarily responsible to Merritt, the person injured and who recovered judgment against the city and the company. If the city had been required to satisfy this judgment, the Kinloeh Telephone Company would have been liable over to the city in exoneration for the whole amount of the judgment. Hanniford v. Kansas City, 103 Mo. 172; Chicago v. Robbins, 67 U. S. 418; 4 Dillon, Mun. Corp. (5 Ed.), secs. 1728, 1720, p. 3024; 1 Shearman & Redfield on Negligence (5 Ed.), sec. 301; 2 Thompson on,Negligence (1 Ed.), pp. 789, 791; St. Joseph v. Union Ry. Co., 116 Mo. 637; Memphis v. Miller, 78 Mo. App. 67; Rochester v. Campbell, 123 N. T. 411; Lowell v. Railroad, 23 Pick. 24; McNoughton v. Elkhart, 53 Ind. 391; District of. Columbia v. Railroad, 12 D. C. 318; Elk-hart v. Wickwire, 87 Ind. 80; Rochester v. Montgomery, 72 N. T. 65; Milford v. Holbrook, 9 Allen (Mass.), 23; Portland v. Richardson, 54 Me. 46; Inhabitants of Swansey v. Chase, 16 Cray (Mass.), 303; Inhabitants of West .Boylston v. Mason, 102 Mass. 341; Inhabitants of Woburn v. Railroad, 109 Mass. 283. (2) Sec. 5431, R. S. 1909, providing that defendants in a judgment founded on an action of tort shall be subject to contribution in the same manner as defendants in a judgment in an action on contract, refers only to-eases where there has been a concert of action in the commission of a tort. The statute has no possible application to a case where the liability of the parties is upon a. different plane, where the liability of one is primary and the liability of the other is secondary. Robertson v. Trammell, 83 S. W. (Tex.)- 265; Burkson v. Railroad, 144 Mo. 217; Avery v. Bank, 221 Mo. 71; Iron Co. v. Rice, 179 Mo. 493; Eaton & Prince v. Trust Co., 123 Mo. App. 117; Van Patten v. Richardson, 68 Mo. 380; 9 Cyc. 794; 6 Pomeroy’s Eq. Jurisprudence (3 Ed.), secs. 912, 915, 916; Adams’ Equity star p. 267; 7 Am. & Eng. Ency. Law (2 Ed.), pp. 325, 330, 364, 365; Portland v. Richardson, 54 Me$ 46; Milford v. Holbrook, 9 Allen (Mass.), 17; Lowell v. Railroad, 23 Pick. (Mass.) 24; Mill Co. v. Wheeler, 31 Minn. 121; Newbury v. Connecticut Co., 25 Yt. 377. (3) The Kin-loch Telephone Company was under bond to the city to protect the city against damage suits such as Merritt brought against the Kinloch Telephone Company and the city. The city was fully protected by that bond, and if the city had been compelled to pay the judgment obtained by Merritt it could have recovered the amount on the bond given by the Kinloch Telephone Company to the city. This alone would be a sufficient defense in this case. Heman Const. Co. v. St. Louis, 256 Mo. 332; Rev. Code of St. Louis, secs. 1102, 1107, 1125, 1182, 1192. (4) The principle of estoppel does not apply in this case. The mere fact that the city was jointly sued with the Kinloch Telephone Company and defended the suit and raised no controversy between itself and the company, cannot possibly operate as any estoppel against it in subsequent litigation between the city and the company. 11 Am. & Eng. Ency. Law (2 Ed.), pp. 433, 434; Bigelow on Estoppel (5 Ed), pp. 556, 609, 626. (5) While it is true that the judgment in the Merritt case is not res adjudicaba as to the respective rights between the telephone company and the city, yet, the judgment in the Merritt case was an adjudication, at least, to the effect that Merritt was entitled to a judgment against the company, and the company could not in subsequent litigation undertake to show that it had a complete defense in that case, and that if there was any hole in the sidewalk it was due to causes other than those for which the telephone company could be held responsible. The fundamental fact that the hole was made by the Kinloch Telephone Company, and that it was therefore liable to. Merritt, was a thing adjudicated in the Merritt case. It is no longer an open question. It is obvious from the evidence in the case that the Kinloch Telephone Company was primarily liable to Merritt, and that the liability of the city was secondary, and that therefore the right of contribution does not exist
   ROY, C.

— One Merritt recovered judgment for $4000 as damages for personal injuries in a suit against both the parties to this suit. The telephone company paid that judgment with interest and costs and sues herein for contribution. Defendant had judgment and plaintiff has appealed. The opinion of this court on appeal in the Merritt ease is reported in 215 Mo. 299. Reference is made to the report of that case for such facts as are not herein stated.

In the latter part of September, 1901, the telephone company replaced an old pole with a new one at the intersection of Newstead Avenue with Lucky Street in St. Louis, with permission of the city. On February 5, 1902, Merritt fell into a hole at the foot of that pole and was injured.

The petition in that ease stated that the telephone company, in setting said pole in the street near the sidewalk, had negligently refilled the hole in which such pole was set in such manner that the earth around the pole sank, forming a hole dangerous to persons on the street, and that the telephone com-f pany knowingly and carelessly permitted said hole to remain without a guard or light, and that the city: knowingly and negligently permitted such hole to remain' unfilled and unguarded. That petition then stated that by reason of such negligence Merritt fell into that hole and was injured.

The petition in this case alleges the beginning of the Merritt suit, sets out in Jiaec verba the body of the petition in that case, alleges that the defend-' ants in that case filed separate answers therein denying the negligence charged, and averring that Merritt’s injuries were the result of his own negligence. The petition in this case then alleges the recovery of judgment by Merritt against both the defendants in that case, and the payment of the entire judgment by this plaintiff.

The answer herein states that said telephone pole was set by this plaintiff in a street of that city by permission of the city under an ordinance which required that those who should erect such poles should restore the streets and save the city harmless from all loss, cost or damage by reason of the exer-f eise of the privilege of setting such poles. Such answer then alleges that the said hole at the foot of the pole was caused by the negligent filling of it by the telephone company, that said company negligently failed to refill said hole after it sank as aforesaid, and that the injuries suffered by Merritt were caused by such negligence of the telephone company.

The reply herein states that the telephone company with due care had refilled said hole at the time the pole was set and had thoroughly tamped the earth about .such hole, and that such work was thereupon, inspected and approved by the proper officers of the city; that the telephone company had no subsequent knowledge that the earth about the pole had sunk; that the city officers did have such knowledge, but failed to impart it to the telephone company.

That reply then contains the following:

“That the defendant owed to the plaintiff a duty •to notify the plaintiff of the existence of the said depression; but that neither the defendant herein nor any of its officers or agents did at any time impart its 'and their knowledge to the plaintiff, nor give to-the plaintiff any notice of the existence of the said depression, as the said record in the said case did and does disclose.
“That the plaintiff herein had taken due care to refill the excavation about the said telephone pole and thoroughly'to tamp the earth therein, as the record in the said case did and does disclose, and after the inspection and approval thereof by the inspecting.. officers of the defendant herein, the plaintiff was under no obligation to keep the public street of the defendant city, on which the telephone pole was located, in a safe condition.
“Wherefore, the plaintiff prays judgment as in the petition.
“And for further reply the plaintiff alleges that the plaintiff and the defendant, co-defendants in the said action instituted by the said Merritt, co-operated in the management of their cause, assisted each other in making their defenses, made substantially the samé defenses, introduced substantially the same evidence, offered substantially the same instructions to the jury, and joined in the bill of exceptions and the appeals taken by them to the Supreme Court of Missouri; all of which is fully disclosed by the record of the said cause.”

Neither the petition nor the reply herein contained any allegation that the hole at the foot of the telephone pole was caused otherwise than by the negligence of the telephone company.

On the trial of this case, the plaintiff introduced in evidence the record proper in the other case, showing the pleadings and judgment; also evidence tending to prove that the telephone company prior to Merritt’s injury had no notice of the condition of the ground about said pole, and that the inspecting officers of the city did, prior to said injury, know of and report such condition to the city.

Plaintiff introduced a witness, V. B. Anderson, an assistant superintendent in charge of men engaged in setting its poles, and offered to prove by him “that he had had charge of the work of replacing the poles at Newstead and Lucky with a new pole somewhat larger than .the old; that in doing the work the regular and customary amount of tamping was done; that all of the earth taken out of the excavation Avas tamped back into the hole, and such surplus earth as was left (because the new pole was larger at the butt than the old pole) was heaped up about the pole to the granitoid sidewalk, which was about 20 to 24 inches back of the curbing; and that after the work was done the earth about the pole was higher than the sidewalk; that this witness had seen a certain wooden box covering a fire ping standing in close proximity to this pole, and also an outward opening on the other side of the pole at or near the corner of the said walk; and that in the opinion of this witness, if a hole existed two feet deep on the third day of January, as reported by Officer Hannon on that day, such hole was occasioned by the seepage of water from a leak in this box.” That evidence was excluded.

The defendant herein introduced on the trial of this case the ordinance of the city requiring all persons and corporations after setting telephone poles to replace the streets in such manner as may be required by ordinance or by the Board of Public Improvements and to-the satisfaction of the street commissioner, and requiring that such persons and corporations shall give to the city penal bond in the sum of $20,000 with the condition that such person or corporation will comply with such ordinances and save the city harmless from any loss on account of any failure in that respect.

It also introduced in evidence the bond executed by the plaintiff herein in accordance with those ordinances.

Plaintiff, in rebuttal, put on the stand Mr. E. T. Miller, an attorney at law, who' was one of the attorneys for the Kinloch Telephone Company in the Merritt case. He testified that, preparatory to the trial of that case, counsel for both the defendants therein held a consultation in which they came to a conclusion stated by the witness thus:

“That it would be suicidal for us to attempt to throw the burden — either one to throw the burden— on the other, and that we had to make a joint fight in that case and combine our forces, and when we went to Mexico our position was stated to Mr. Robertson, and he fully concurred on that, and we carried out that theory in the trial of the case.”

At the close of the evidence the court gave the defendant a declaration of law as follows:

“The court, sitting as a jury, declares the law to be: That upon the pleadings and proof herein, the plaintiff is not entitled to recover, and that the findings must be for the defendant.”

1. The judgment in the Merritt case was one falling under the provisions of section 5431, Revised Statutes 1909, which is:

“Defendants in a judgment founded on an action for the redress of a private wrong shall be subject to contribution, and all other conseq-uences of such judgment, in the same manner and to the same extent as defendants in a judgment in an action founded on contract.”

In Eaton & Prince Co. v. Trust Co., 123 Mo. App. 117, it was held that the statute applied to a ease of negligent omission of duty on the part of several tortfeasors which concurred in causing the injury, though there was no unity or concert of action on their part. That was approved in Miller v. United Railways Co., 155 Mo. App. 528.

II. In McMahan v. Geiger, 73 Mo. I. c. 149, is the following quotation from Freeman on Judgments (4 Ed.), sec. 158: “Parties to a judgment are not bound by it, in a subsequent controversy between each other, unless they were adversary parties in the original action. If A recovers against B and C, upon a contract, which judgment ■ is paid by B, the liability of C to B in a subsequent action for contribution is still an open question, because as to it no issue was made or tried in the former suit. As between the several defendants therein a joint judgment establishes nothing bnt their joint liability to the plaintiff. Which of the defendants should pay the entire debt, or what proportion each should pay in case each is partly liable, is still unadjudi^ated; but a judgment against two joint debtors prevents either from denying the existence and obligation of the debt, though he may still prove by any competent evidence in his power that the whole burden of the obligation should be borne by the other. ’ ’

The section of the statute above set out applies the same rule of contribution to judgments rendered in actions on torts. It was held in Brewster v. Gauss, 37 Mo. 518, that a judgment founded on tort was conclusive as between the defendants as to the liability of each to the judgment plaintiff. Such being the law, neither the plaintiff nor the defendant herein can be heard to contend in this case that it was not liable to Merritt for damages recovered by him.

III. The telephone company was liable over to the city for any damages the city might compelled to pay to Merritt by reason of a defect in the street caused by

the negligence of the telephone company. [4 Dillon, Mun. Corp. (5 Ed.), sec. 1728; 2 Thompson on Neg. (1 Ed.), 789; Rochester v. Campbell, 123 N. Y. 1. c. 411; Elkhart v. Wickwire, 87 Ind. 77; Inhabitants of Woburn v. Railroad, 109 Mass. 283.] That rule was taken for granted without being expressly decided in Memphis v. Miller, 78 Mo. App. 67.

IY. Appellant claims to have made a primafacie case for contribution when it alleSed aild PrOTed the record in the Merritt case. It may be conceded that ordinarily, and in the absence of anything further, a judgment sounding in tort would, under the statute, be a prima-facie showing for contribution as between the defendants therein. But the record in the former cáse does not stop there. It shows fact# which create a primary liability of the telephone company as between it and the city. Such being the case, we hold that the petition herein does not state a cause of action.

V. Appellant says that the evidence of the witness Anderson which was offered by it an<^ ex<?hided by the court would have shown that the hole in question was not caused by the telephone company, but by a leaking fire plug, and would thus have shown a primary liability of the city. Not so; it would have shown a sole liability on the part of the city to Merritt, and would have shown that the telephone company was not liable to Merritt at all. There is a wide difference here between a primary liability and a sole liability. Neither of the parties to this suit can claim that the other was solely liable to Merritt because the judgment in the Merritt case concludes them on that point. It is conceded that neither of the parties hereto is so concluded on the question as to whether the other was primarily liable. The situation is peculiar in this: that the telephone company seeks to avoid its own primary liability, a thing it has the right to do, by showing the sole liability of the city, a thing which it has here no right to do, because that point is concluded against it by the judgment in the former case.

VI. Appellant insists that the agreement shown by the evidence of the witness Miller as to the course to be pursued by the defendants in the Merritt case and the compliance of the parties with that agreement, estops the respondent from now asserting the primary liability of the appellant. There is no” plea of estoppel in either the petition or reply. We see no reason why this case should be excepted from the general rule that an estoppel must be pleaded. [Thompson v. Lindsay, 242 Mo. 53.]

Appellant’s brief contains this:

‘ ‘ The two defendants in the Merritt case had an agreement, in the interests of a common joint defense, under which neither defendant would attempt to cast any primary liability upon the other.”

There are several difficulties involved in that statement which counsel have overlooked:

(a) That was not the proper place or time for the determination of the question of primary liability of either of the parties defendant therein.

(b) Primary liability of the city could not possibly have been shown. It might have been shown that it was solely responsible, but not that it was primarily so.

(c) The telephone .-company could have secured a verdict in the Merritt case if it had shown that the hole in the street was not caused by its negligence. There was nothing to prevent it from making such showing unless there was a lack of evidence on that point. Certainly it was not prevented from so doing out of any fear that the city would prove that the telephone company was solely liable. So far as we can see, whatever made the telephone company liable made the city liable. Any effort of the city to fix liability on the telephone company would involve the city in the same result, so far as that case was concerned. The telephone company, without any agreement, could have gone on with impunity in its efforts to prove that the city alone was liable with no fear that the city would attempt to prove 'that the telephone company was liable.

(d) An examination of the report of the Merritt case, on the appeal to this court, shows clearly that if there was an agreement for a joint defense it was not carried out. There were separate briefs filed here on that appeal. This court, speaking to the second point made by the telephone company, said (215 Mo. l. c. 309) :

“But passing this point, it is urged that all the positive evidence tends to show that the hole dug by the Kinloeh • Company was upon the west side of the pole and not upon the east side. This defendant urges that it is only by the merest inference that it could be said that it dug the hole into which the plaintiff fell, but it is not seriously denied that there was a depression on the east side of the pole which occasioned the injury to plaintiff.”

That shows a clear attempt on the part of this appellant to escape by throwing the sole liability on the city.

(e) Even if such an agreement was made, it would be a very strained construction of it to hold that it contemplated any more than a common defense in that suit. There is nothing to show that it was intended that either party’s rights in this case should be affected by it.

VII. In Heman Construction Company v. St. Louis, 256 Mo. 332, it was held that a contractor who was under bond to the city conditioned that the contractor would comply with the city ordinances and save the city harmless from any loss by reason of the contractor’s negligence resulting in damage to other persons, was by such bond precluded from obtaining contribution under tbe statute from tbe city on account of tbe' payment by tbe contractor of a judgment rendered against both for tbe contractor’s negligence. That ease proceeded on. tbe theory, without deciding, that tbe original judgment, was not conclusive as to tbe question of primary liability, and held that such bond threw tbe primary liability on tbe contractor. In this case tbe primary liability is put upon tbe telephone company both by tbe bond and by law even without tbe bond.

Tbe judgment is affirmed.

Williams, C., concurs.

PER CURIAM.

— Tbe foregoing opinion of Roy, C., is adopted as tbe opinion of tbe court.

All the judges concur.


source: Caselaw Access Project

author: WALKER, J.

license: Public Domain

text:
    CITY OF ELDORADO SPRINGS v. F. J. HIGHFILL, Appellant.
    Division Two,
    July 5, 1916.
    1. INTERSTATE COMMERCE: Definition: Police Regulation. Interstate commerce includes intercourse, and cannot be confined to traffic alone. It embraces intercourse between persons, firms or corporations of different states: and importation is not only an indispensable element, but the test of interstate commerce. But the Federal statute regulating interstate commerce will not he construed to interfere with the power of the State to fully regulate its police and taxing powers and domestic trade unless the State statute conflicts with the plain provisions thereof.
    2. -: Sales by Samples: Canvasser: Interruption in Interstate Character. But shipments fro.a outside the State to a canvasser, who sells goods upon order, which of itself gives to them an interstate character, will not alone suffice to relieve the canvasser from the burden of a State license, unless the interstate character of the transaction continues up to and includes the sales to purchasers. If the interstate character of the shipments ceases upon the delivery of the goods by the foreign corporation to the canvasser, the goods do not thereafter move in interstate commerce, but the movement becomes local in its nature upon such delivery to him.
    3. -: -: —:-: -: Facts of Case. Defendant went from house to house in a city in this State, carrying samples of wares, exhibiting them to prospective purchasers, who- agreed to buy from him goods similar to the samples and to pay for them upon delivery after satisfactory examination. Orders for wares, made by defendant, were directed to the manufacturing company in another state, sufficient to meet the requirements of the prospective sales. In no case did he furnish the company the names of the particular purchasers, but before making the orders he had furnished the company with letters of credit to cover the cash amount of the particular order. The goods were billed and shipped to defendant in bulk and he paid the freight charges, and upon receipt he sorted and delivered them in accordance with the conditional sales theretofore made, and if the goods were accepted he received payment therefor from the purchasers. He had an agreement with the company that he might return at its expense to a certain amount on any order goods not taken by persons to whom contracted and who declined to receive them. Held, that the goods became defendant’s property when they were delivered to him, and upon such delivery their movement lost its character as interstate commerce, and thereafter became local in it nature, and defendant was subject to a fine for selling them without first having obtained from the city a license as a “canvasser or agent taking orders or selling goods to customers, by canvassing or going about from house to house.” [Distinguishing Fleming v. Mexico, 262 Mo. 432; Jewel Tea Co. v. Carthage, 257 Mo. S'83; and Kansas City v. McDonald, 175 S. W. 917.]
    4. -: -: -: Rebates. The contract by the canvasser for rebates from the foreign company in the event of his failure to consummate the sale of wares for which he canvassed from house to house and obtained conditional contracts of sale, does not add to nor serve to continue the interstate character of the shipment after the movement of the goods in interstate commerce had been broken by delivery to him.
    5. CANVASSER: License: Merchant or Peddler: Engaging in Business: Validity of Ordinance. Sec. 9399, R. S. 1909, empowering cities of the fourth class “to regulate and license all business, trades and avocations whatever,” authorizes such cities by ordinance to prohibit “any person, firm or corporation from carrying on or engaging in any business in said city without having obtained and paid for a license,” which includes a canvasser who goes from house to house soliciting and taking orders for goods by sample, since that is carrying c'n and engaging in a business, and therefore it is immaterial whether a canvasser be considered a merchant or a peddler.
    6. -: No Specific Use of Word in Statute: General Words. Simply because the word “canvasser” is not used in the statute, it will not be held that the city is powerless to tax “canvassers” engaged in canvassing from house to house for orders for goods to be delivered upon conditional sale. While general words used in a statute are to be limited in their meaning to the particular words preceding them, and while, strictly speaking canvassers may not be ejusdem generis with merchants and peddlers, they are sufficiently so within the meaning of a statute authorizing the city to “regulate and license all business, trades and avocations,” even though it does not use the word “canvasser.”
    7. MISDEMEANOR: Charge in Words of Statute: Synonym. Charging a misdemeanor in the substantial lan 'rage of the statute is sufficient. Nor is the complaint insufficient because a synonym of the statutory words is used instead of the words themselves.
    Appeal from Cedar Circuit Court. — Ron. B. G. Thurman, Judge.
    Affirmed.

      Charles E. Gilbert and J. F. Rhodes for appellant.
    (1) A sale in this State of goods which are in another state at the time of said sale, is interstate commerce, and no license is or can he required for making such sale, being violative of section 8 of article 1 of the Constitution of the United States. State v. Looney, 214 Mo. 216; State v. Emert, 103 Mo. 245; Hynes v. Briggs, 41 Fed. 469; Robbins v. Taxing District, 120 U. S. 489; Brown v. Houston, 114 U. S. 622; Welton v. State of Missouri, 91 U. S. 275; Woodruff v. Parhan, 8 Wall. 123; Cook v. Pennsylvania, 97 U. S. 566; Emert v. Missouri, 156 U. S. 296; Dozier v. State, 218 ü. S. 123; Brook-field v. Kitchen, 163 Mo. 546; State v. Hoffman, 50 Mo. App. 585. (2) The plaintiff city has no power to license, tax and regulate any business or occupation unless specific authority is granted to it to do so by the Legislature and Sec. 9399, R. S. 1909, governing cities of the fourth class does not give said city any authority to assess a tax against a “canvasser or agent taking orders or selling goods to customers by canvassing or going about from house to house” and that part of said ordinance is null and void. Independence v. Cleveland, 167 Mo. 384; Knox City v. Thompson, 19 Mo. App. 523; Hannibal v. Price, 29 Mo. App. 280; Dillon on Mun. Corporations (1 Ed.), sec. 55; St. Louis v. Laughlin, 49 Mo. 599; Grumley v. Webb, 44 Mo. 444; St. Louis v. Herthel, 88 Mo. 128; Constitution of Missouri, sec. 3, art. 10; Kansas City v. Grush, 151 Mo. 128; St. Louis v. Spiegel, 60 Mo. 587. (3) The defendant is not a peddler. Sec. 10282, R. S. 1909; Trenton v.. Clayton, 50 Mo. App. 535; 1 Dillon on Mun. Corp. (4 Ed.), sec. 89.

      R. N. Banister for respondent.
    (1) If the judgment on the circuit may be sustained on any theory of the law applicable to the facts, on either count of the complaint, it must stand. Rinard v. Railroad, 164 Mo. 270; Hess v. Ganz, 90 Mo. App. 439. (2) Respondent being a city of the fourth class had the power and authority under its charter (See. 9399, R. S. 1909) “to license, and to levy and collect a license tax on . . . hawkers, peddlers, . . . merchants of all kinds, . . . and all other business, trades and avocations whatever.” (a) Appellant and his business at El Dorado Springs bring him within the designation “merchants of all kinds.” Kansas City v. Lorber, 64 Mo. App. 608; Kinney’s Law Diet. & G-los. 459; Anderson’s Law Diet. 671; 20 Am. & Eng. Ency. (2 Ed.), p. 579. (b) Bnt if appellant was not a merchant of any kind, and his business not that of a dealer in merchandise, it certainly was ejusdem generis with that .of dealing, buying and selling merchandise, and that will suffice under the all-embracing clause “all other business, trades and avocations whatever.” Kansas City v. Lorber, 64 Mo. App. 608; Kansas City v. Yinquist, 36 Mo. App. 584; Brook-field v. Kitchen, 163 Mo. 551; St. Louis v. Wood-ruff, 71 Mo. 92; St. Louis v. Herthel, 88 Mo. 128; Connor v. Carterville, 125 S. W. 861. (3) Appellant, in his transactions at respondent city, was not engaged in interstate commerce, and he cannot hide behind the Aegis of the Federal Constitution under any yet construction and application of section 8, article 1, of that instrument. He was not the agent of the Pennsylvania company in his de'alings with his customers. The very latest cases in this court in point are these of Jewel Tea Co. v. Carthage, 257 Mo. 383, and Fleming v. Mexico, 171 S. W. 321, and under the standards there set up appellant does not fill the measure.
   WALKER, J.

-This suit was brought in the mayor’s court of El Dorado Springs, charging defendant with violating an ordinance of said city m engaging in the business of a canvasser or agent by taking orders or selling goods to customers without taking out a license authorizing him so to do. He was convicted as charged and his punishment assessed at a fine of $20. He appealed to the circuit court of Cedar County, where the judgment below was affirmed. He thereupon perfected an appeal to the Springfield Court of Appeals and filed therein an application for a transfer of the cause to the Supreme Court on the grounds (1) that a Federal question was involved necessitating a construction of the United States Constitution; and (2) that a construction of the State Constitution was also necessary to a determination of his rights. The application was granted and the case transferred to this court.

The material parts of the ordinance in question are as follows:

“Section 1. There is hereby levied a license tax upon the various business, trades, callings, occupations, objects and persons in the city of El Dorado Springs, Missouri, hereinafter named, and the same shall be licensed and regulated as hereinafter provided.
“Canvassers or agents taking orders or selling goods to customers, by canvassing or going about from house to house. . . . $20.00 per year.
“Peddlers ... $1.00 per day or $15.00 per month.
“Section 2. Any person, or firm or corporation who shall carry on or engage in any trade, business or occupation or calling in this city, herein required to be licensed, without first having obtained and paid for said license, or shall fail, neglect or refuse to comply with any other provision of this ordinance, shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not less than five dollars nor more than one hundred dollars.”

The formal sufficiency of tíre complaint charging defendant" with a violation of this ordinance is not questioned. The defendant at the time of his arrest was going from house to house carrying samples of aluminum wares for kitchen and cooking purposes, exhibiting same to prospective purchasers, many of whom agreed to buy from him wares similar to the samples and to pay for same upon delivery after satisfactory examination. Two separate orders for goods of the kind agreed to be purchased were made by the defendant. One was directly to the manufacturing company of the wares at a point in Pennsylvania and the other to a branch establishment of the same company in Ehst St. Louis, Illinois. Each of these orders directed the company addressed to send to defendant a quantity of their wares sufficient in each case to meet the requirements of the prospective sales he had made. In no case did he furnish the manufacturing company with the names of particular purchasers of any of the wares ordered. Before making these orders he had in each case furnished the company with letters of credit to cover the cash amount of the particular order. The goods in each order were billed and shipped to defendant in bulk and he paid the freight charges thereon. Upon their receipt he sorted and delivered them in accordance with the conditional orders theretofore made, and if the goods were accepted they were paid for by the purchasers. He had an agreement with the manufacturing company that he might return at its expense goods on any order to the amount of $20 not taken by any one person to whom he had contracted to sell them and who had declined to receive same, and for goods so returned he was to be credited at the wholesale price of such articles.

I. Defendant’s contention is that he was, as the agent of the manufacturing company, engaged in interstate commerce and hence not amenable to the license laws of this State nor to municipal ordinances. To sustain this contention he cites Fleming v. Mexico, 262 Mo. 432; Jewel Tea Co. v. Carthage, 257 Mo. 383; and Kansas City v. McDonald, 175 S. W. (Mo.) 917.

A comparison, or if there be differences, a contrast, of the facts in these cases with those in the instant case will enable it to be determined" whether they may with propriety be cited as sustaining defendant’s contention. Preliminary to this review it is well to understand what is meant by “interstate commerce” as applied to this case.

The judicial meaning of the term £ £ commerce ’ ’ as first definitely declared in Gibbons v. Ogden, 9 Wheat. 1, is that it is not traffic alone, but “it is intercourse.” Comprehensively speaking, it describes the intercourse between nations, but here it is confined to the intercourse between persons, firms or corporations of the different States.

“Importation,” says Sanborn, J., in Butler Bros. Shoe Co. v. United States Rubber Co., 156 Fed. (C. C. A.) 1, “is the indispensable element, the test, of interstate commerce.” Generally speaking, therefore, wherever there. is a negotiation, contract, trade or dealing between persons of different states in which importation is an essential feature or forms a component part of the transaction it may he denominated “interstate commerce.” [Text Book Co. v. Pigg, 217 U. S. 91, 54 L. Ed. 678.]

Necessarily there are limitations upon this definition due to differences in the facts in particular cases. In no case has it been held that the act of Congress regulating interstate commerce is to be so construed as to interfere with the power of a State to fully regulate its police and taxing powers and its domestic trade, provided, of course, the State act does not conflict with the plain provisions of the Federal statute. Cases seeming to hold to the contrary will be found upon analysis to contain other controlling facts governing the court’s conclusion and not merely an interference with the powers named.

The term here involved and necessary to a determination of this case having been defined, a review of the rulings of this court thereon is in order.

In Fleming v. Mexico, supra, an agent of a foreign corporation went from house to house soliciting orders for his company from residents of the city of Mexico for coffees, teas and groceries, and forwarded such orders to the company in another state to he filled. The company filled them, making up a separate package for each order, and sent them to the agent, who delivered them in unbroken packages to the different buyers and received the money therefor, which he transmitted to his principal.

In Jewel Tea Co. v. Carthage, supra, an agent of a Chicago firm took orders for teas, coffees, etc., from residents of the city of Carthage. These orders were mailed by the agent to his principal in Chicago, where each article ordered was separately wrapped and the packages placed in a box and shipped to the agent, who, upon receipt of same, delivered them, thus separately wrapped, to the purchasers and received the money therefor, which he forwarded to his principal.

In Kansas City v. McDonald, supra, a packing company in Indiana sold its products in Kansas City, Missouri, through a solicitor or agent by having him take orders for same. These orders were forwarded by the agent to the company to be filled and his participation in the matter ended. If the orders were filled the goods were shipped direct to the buyers and the collections were made of them by the company. The agent, finding that the business wait more than he could personally transact, organized a force of men to solicit for the company who reported to him, but forwarded all orders to the company at Indianapolis as having been made by the agent, and the goods were shipped and collections made as before. The force of men thus employed increasing in numbers, he opened an office in Kansas City where they reported to him and received instructions and directions before entering upon their work. The compensation of the agent and the men employed by him was paid by the Indiana company. The goods were sold by sample, and the orders sent in by the agents to the company were subject to acceptance or rejection as it might determine. Instances occurred in which the -agents went to local retail dealers and took orders for goods of the Indiana company, using samples of the goods sought to be sold to secure the order, and after the order was secured the solicitor would ask the retailer with which wholesaler or jobber he would like to have the order placed, and the same would be placed as requested. Each of the foregoing cases was held to present transactions interstate in character and hence not subject to local regulation.

In the instant case the defendant solicited persons to buy the goods, but no sales were made to the persons solicited until he had paid for the goods or had given a guaranty for their payment and the same had been shipped to him, whereupon he sold them to the persons he had theretofore solicited if the goods were found by such persons to be satisfactory. The difference between these cases is readily distinguishable. In the Fleming and Jewel Tea Company cases the contracts for the purchases became binding when the orders for the goods were received and accepted by the respective corporations in other states, and the transactions became inter-, state in theiry character upon the shipment of the goods. In the Kansas City case the transactions constituted sales by samples and the nature of same became interstate upon the shipment of the goods as in the Fleming and Jewel Tea Company cases. The court held that the occasional solicitation of sales to retailers by the agents, being without compensation, or mere gratuities, did not change the general nature of the transactions. ,

There is marked similarity between the cases reviewed and the instant case, in that all of the shipments were from outside of the State, and hence interstate in their character. This will not suffice, however, to free persons dealing in goods contained in these shipments from State license laws unless the interstate character of the transactions continues up to and includes the sales to purchasers, thus rendering the agents who made the sales a part of same.

This was the condition in the cases we have reviewed. In the instant case, however, the interstate character of the shipments ceased upon the delivery of the goods by the foreign corporation to the defendant, and the goods thereafter not moving in interstate commerce, the transactions became local in their nature.

There is evidence that the defendant was the agent of the foreign company. The testimony in this regard consists of declarations. This will not suffice to define defendant’s relation. His status is fixed by the facts. In each instance the payment of the purchase price was guaranteed by the defendant when the goods were ordered. They therefore became his property upon their delivery to. him. We find no semblance of agency here, but all the characteristics of an independant transaction in which the defendant was one of the principals. His attempted ascertainment before each order as to who would purchase from him and his limiting his orders to these prospective buyers does not militate against this conclusion. It is not unusual for independent traders to limit their purchases from jobbers or wholesalers to the demands of their patrons, and he is fortunate in trade who is able to determine the extent of these demands beforehand.

Nor does defendant’s contract for rebates from the company in the event of his failure to sell any of the articles indicate an agency as an aider to the theory of the interstate character of the shipments and as a consequence the immunity of the goods sold from local regulation. If defendant had not purchased the goods the property in same would have remained in the company and the provision as to a rebate would not only have been unnecessary but meaningless.

II. The ordinance upon which this proceeding is based is authorized by the statute (Sec. 9399, R. S. 1909) empowering the mayor and board of aldermen of cities of the fourth class, to which El Dorado Springs belongs, “to regulate, and to license . . . all . . . business, trades and avocations whatever.” This general power follows a specific enumeration of the callings to be regulated and licensed. The ordinance prohibits “any person, firm or corporation from carrying on or engaging in any business in said city without- having obtained and paid for a license.” Defendant was charged as having engaged in business as , a canvasser or agent. We have shown that he did not belong to the latter class. As a canvasser he solicited orders for the sale of goods, taking with him samples of same, and subsequently sold and delivered such goods to the purchasers. Whether the word canvasser, therefore, is synonymous with that of merchant or peddler is immaterial; it partakes much of the nature of both, and the law is not concerned with the mere niceties, of words if those used clearly come within the meaning of the prohibitions of the statute, as-is the case here, especially when the offense charged is a misdemeanor. Charging a misdemeanor in the substantial language of the statute* is sufficient. [State v. Taylor, 167 Mo. App. 104.] This was done in the instant case, but the contention is that the charge is insufficient because a synonym of the words used in the statute was employed instead of the words themselves. This is a mere refinement of a technicality and is without merit.

If it- be further contended that the general power to tax and regulate granted by the statute following a specific enumeration of the- extent of same is to be limited to the rule usually applicable in such eases, viz., that the general words are to be limited in their meaning to the particular words preceding them, it will be sufficient to say that while canvassers may not, strickly speaking, be ejusdem generis with merchants or peddlers, they are sufficiently so .within the meaning, of the statute here under consideration to form an exception to the general rule. This is especially so when we take into consideration the character of the legislation manifest in the statute and ordinances in this case, viz., the exercise of the city’s police power. As was said by this court in St. Louis v. Herthel, 88 Mo. l. c. 130, the rule of interpretation “is not to be so applied that the city is to be held powerless to tax any calling not expressly named in its charter by its proper name.” This ruling authorized the licensing of “architects,” not then enumerated in the statute as one of the callings to be regulated.

St. Louis v. Woodruff, 71 Mo. 92; Kansas City v. Vindquest, 36 Mo. App. 584; and Wonner v. Carterville, 142 Mo. App. 120, afford illustrations of like exceptions to the general rule in the construction of ordinances similar to the one here in question.

In the cases of Independence v. Cleveland, 167 Mo. 384, and Kansas City v. Grush, 151 Mo. 128, there was no authority in the charters or ordinances of the municipalities to regulate and license the vocations therein named and the facts were different from those in the case at bar; these cases, therefore, cannot be cited as controlling authorities here.

"While it would have restricted the field of technical criticism if the ordinance had employed the terms of the statute, its conformity therewith is sufficient to require the defendant to comply with same.

In view of what has been said the judgment should be .affirmed and it is so ordered.

All concur.


text:
    THE STATE v. NORMAN HERRING and J. F. BALDWIN, Appellants.
    Division Two,
    July 5, 1916.
    1. JUROR: Prior Opinion. The fact that a juror has made up his mind from what he saw in a newspaper is no ground for challenge after he has stated he can disregard that opinion and decide the case solely from the evidence.
    2. WITNESSES: Competency: Harmless Testimony. The court will not on defendant’s appeal consider the competency of witnesses confined as patients in an insane asylum where they testified to nothing having a tendency to convict defendant, and their testimony was really favorable to him and could not have harmed him.
    3. -: -: Person of Unsound Mind: Patient Confined in Insane Asylum. Under the statute declaring that “a person of unsound mind at the time of his production for examination” shall be incompetent to testify, a person adjudged to be of unsound mind who is confined in an asylum for the insane is presumed to continue insane; but such presumption may be rebutted by a proper, voir dire examination conducted by the court, and such a person is competent to testify if (1) upon examination he be found to be of sufficient mental capacity to understand the nature of an oath, that is, to know it is both a moral and legal wrong to answer falsely, and that false swearing is a punishable crime in law, and (2) if he be possessed of sufficient mind and memory to observe, recollect and narrate the things he saw or heard.

      4. -: -: Presumption: Burden: Credibility. The burden of rebutting the presumption of incompetency cf a witness confined in an insane asylum is upon the party offering him; hut absent such confinement, or an adjudication that he is insane, the burden of showing his incompetency is on the party objecting. And while the question of his incompetency is for the court, it is for the jury to determine the credit that ought to be given to his testimony.
    5. INSTRUCTION: Reference to Information. An instruction which refers the jury to the information for matters which are not in the instruction and which are necessary for their consideration, is erroneous; but it is not erroneous if, in spite of such reference, it contains the matters necessary for their consideration, but such reference is merely surplusage and harmless.
    6. -: Non-Direction: Manslaughter: Force by an Officer. An instruction which tells the jury that defendants, officers of an asylum for insane persons, had the right to use all force necessary to control the assaulted patient, and that if the jury should find that they did unnecessarily strike, heat and injure said patient with their feet and fists, and that said patient died therefrom, they should find them guilty of manslaughter in the fourth degree, was correct as far as it went; and if defendants desired to have the jury instructed to the effect that defendants were not required to nicely gauge the amount of force necessary to subdue the patient and that they had the right to use such force as reasonably seemed to them necessary for that purpose, it was their duty to ask for such instruction, and having failed to do so they cannot complain, since the complaint is one of non-direction, not one of misdirection.
    Appeal from Buchanan Criminal Court. — Eon. Thomas F. By an, Judge.
    Affirmed.

      Elliott Spalding and Stephen K. Owen for appellants.
    (1) It was prejudicial error to refuse the challenge for cause on the part of the defendants of venireman Rogers. Sec. 5220. R. & 1909. This man not only had an opinion, but had expressed it, and that opinion was not only an opinion, but it amounted to a definite determination of the gnilt of the defendants. (2) No crime was committed, proven or shown. The testimony not only fails to prove any crime, but strongly disproves any crime or intention to commit even an infraction of the asylum rule. The State’s evidence, apart from any proof adduced on the part of the defense, disproves any guilt. (3) The court erred in permitting to testify on behalf of the State and over the objections of the defendant three insane, patients, inmates in the asylum for the insane at the time of the homicide, and at the time of their production as witnesses, and admittedly “adjudged” insane. Sec. 6362, R. S. 1909. These men having been adjudged insane by courts of competent jurisdiction, they were insane and of unsound mind, and the trial court had no power to inquire into their competency at the time of their production. The adjudication of these men as to their being insane, together- with their confinement in the asylum fixes their status, and brings them within the statute and fixes their incompetency, and no collateral hearing or attempt to qualify them could make them competent. The binding force of an oath is based upon two things: First: The religious faith and beliefs of the witness, and his belief in God, with a proper appreciation of solemnity of calling upon Him to witness the truthfulness of the testimony, and the fear of punishment and future retribution if such testimony be false. Sec. 6349, R. S. 1909; Sec. 6353, R. S. 1909. Second: The fear of temporal punishment and the penalties for swearing falsely or committing the crime of perjury. Secs. 4344 and 4345, R. S. 1909. Had these witnesses cunningly devised or insanely conceived- some parts of their testimony, which appellants contend a part of these witnesses did, to vent a spleen for a grievance, real or imagined, against one of these defendants, they could not be punished for perjury. The very discussion by the court with these witnesses of the punishment to be meted out by the law made the matter worse for these defendants, for it brought to the attention of the witnesses their condition; and if they had mind sufficient to make them desirable witnesses for the State, then they had mind enough to know of their immunity from punishment, however false their testimony might be. The decisions in State v. Whitsett, 232 Mo. 527, and State v. Vaughn, 223 Mo. 155, are not squarely in point. (4) The instruction is deficient, misguiding and wholly silent as to defendants’ rights and as to those matters that temper the law to 'accord with human weakness when sudden passion on provocation arises, and is altogether prejudicial to these defendants, and totally oblivious to their rights. State1 v. Watson, 95 Mo. 416; State v. Umfriend, 76 Mo. 407; State v. Young, 99 Mo. 666; State v. Speyer, 207 Mo. 556; State v. Lewis, 118 Mo. 79; State v. Davidson, 95 Mo. 155; State v. Ellis, 74 Mo. 215; State v. Weakley, 178 Mo. 422; State v. Jones, 79 Mo. 444; State v. Elsey, 201 Mo. 571. This instruction is faulty in that it does not require the jury to find that the defendant intentionally killed deceased. State v. Hearney, 177 S. W. 305; State v. Umfriend, 76 Mo. 407; State v. Sloan, 47 Mo. 614; State v. Edwards, 70 Mo. 482.

      John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
    (1) When a jurior on his voir dire examination declares that his opinion is not such as to bias or prejudice his mind, ■ and that his opinion will readily yield to the evidence in the case, he is a competent juror. State v. Church, 199 Mo. 629; State v. Darling, 199 Mo. 196; State v. Sykes, 191 Mo. 75; State v. Sherman, 264 Mo. 379. (2) Upon their voir dire
      examination the witnesses Fitzpatrick, Murphy and Hoffman, inmates of the hospital, showed that they had sufficient understanding to comprehend the obligations of an oath and were capable of giving a correct account of what they had seen and heard of the difficulty between appellants and the deceased. The competency of these witnesses was a question for the court. State v. Myers, 37 L. R. A. (Neb.) 424, and notes; State v. Pryor, 46 L. R. A. (N. S.) (Wash.) 1028, and notes; State v. Whitsett, 232 Mo. 527; State v. Vaughn, 223 Mo. 155. (3) The jury having failed to assess the punishment after having determined the guilt of the defendants, it was the duty of the court to assess it. Sec. 5254, R. S. 1909; State v. Rollins, 226 Mo. 538; State v. Foster, 115 Mo. 448. (4) Instruction number 4, taken with the other instructions, correctly defined manslaughter in the fourth degree. State v. Montgomery, 230 Mo. 666; State v. Rose, 142 Mo. 427.
   ROY, C.

— Defendants were charged with murder in the second degree and convicted of manslaughter in the fourth degree. The jury disagreed as,to the punishment. The court sentenced Herring to two' years in .the penitentiary, and Baldwin to pay a fine of five hundred dollars. They" have appealed.

They were both employed as attendants in ward 3 of Hospital Number Two for the Insane at St. Joseph. They both had' several years’ experience in such employment and the evidence shows that they had been previously careful in such work. Ward 3 was one in which violent patients were confined, but other patients were kept there to. do certain parts of the work necessary in caring for the patients. Joshua Wallace and George Young were two of the most dangerous patients in the ward. About Decern-her 15, 1904, Wallace had bitten off a large portion of one of the ears of defendant Baldwin. He had a reputation for biting. He was about twenty-eight years old. Both he and Young were about the average in size and strength. Wallace had worn “restraints” for a considerable period of time, but they had been removed several days prior to the alleged offense. Those restraints were leather straps around his body and around his wrists.

Patrick J. Fitzpatrick, one of the patients, testified for the State as follows: “A. Well, that morning before we went to breakfast Wallace was going around mumbling. He was a vicious patient, a man that would bite. He was going around mumbling over them coming out. He was not a crazy man, he was just simply mad, acted like he was mad and foamed at the mouth. He was going around mumbling and he kept that up before breakfast. After breakfast he got worse, I mean he acted like he was going to do something. Murphy was at the back end of the hall— “Q. Who is Murphy? A. He is a patient in ward 3. Murphy kind of went toward him. I was in the middle of the hall. I thought I would go back and help Murphy quiet him down. I knew the attendants were at breakfast, • and when I got back there the attendants came back behind me, and when I saw them I thought there was plenty to handle him and I went back to my work, and they had led him off the hall.
“Q. Who led him off the hall? A. Mr. Herring and Mr. Baldwin. I think Mr. Smith came back there.
“Q. Tell the jury whether or not Murphy had any fight with Wallace? A. None whatever. They were just talking. Murphy was trying to quiet him so they would not hit one another.
“Q. You say Mr. Herring and Mr. Baldwin led the patient Wallace off the hall? A. They caught hold of him right at the entrance of the hall. It occurred right along there, and they got up to the entrance and took hold of him by the arms and led him out just like this, one on each side like this. Then I went back to my work.
‘‘Q. Do you know how Wallace went around to make assaults upon patients that he was angry with, or on attendants? A. He went like a mad man.
“Q. Did he go■ with his mouth open? A. Yes, his mouth was open and he was frothing.”

Thomas J. Murphy,, another patient, testified:

"Q. I wish you would turn to these gentlemen and tell what occurred between Mr. Wallace and Mr. Herring and Mr. Baldwin on this Sunday morning that Mr. Wallace was killed? A. For the information of the jury, the ward is ward 3. It was just about breakfast time, after the patients- had had their breakfast and the attendants, the gentlemen mentioned, had just about finished their breakfast, and Mr. Wallace, who was running a rubber, there were about thirteen or fourteen other men running rubbers, and they kept passing by where I was stationed. I was stationed at the table which belonged to these gentlemen mentioned, these attendants, and where they kept' their property in the table and their reports. I watched it while they were out. On this last turn around Mr. Wallace stopped where I stood and made the remark, ‘Those men didn’t get all that was coming to them, didn’t get enough,’ and when he made the remark I told him he had to keep still and go on with the rubbing.
‘‘Q. It was your business to help with the keeping of the patients? A. Yes, and to call their attention to them if they tried to make trouble. By calling attention to a patient always some attendant responds, and we work that way. Mr. Herring and Mr. Baldwin had about that time started out of the dining room, and I walked along with Wallace so he would keep on with the rubber, so I met them coming on and. told them what Mr. Wallace had said in regard to themselves, and they started to qniet Mr. Wallace the way they had before, that is, take him away so that he .would not make any trouble, that is take him to the anteroom.
“Q. What anteroom? A. There is a little anteroom that belongs to the ward, is a part of the ward.
“Q. Is that near the bathroom? A. Yes, from the anteroom, you pass into the toilet.”

He further testified that the defendants took hold of Wallace and led him to the door and out of sight of the witness, who saw nothing that occurred between them after that.

Defendant Baldwin testified that when, he went into the hall Murphy told him that Wallace had said “they didn’t get enough and were going to get some more.” He further testified as follows:

“A. We took him by the arms and started to bring him in here, and when we got here he resisted and jerked away and started in this doorway and started to fight. Mr. Herring was ahead of me, and so I couldn’t see just what happened. Mr. Herring either shoved him or struck him and he fell kind of staggering backwards and fell back in here, and with his head between the radiator and the bath tub, and Mr. Cráin,' another patient—
“Q. Where was Crain? A. He was inside the bathroom drawing a bucket of water with a little piece of hose attached to the faucet where he was drawing the water into the bucket.
“Q. This is the rubber hose that has been introduced in evidence? A. Yes, sir. Mr. Herring was ahead and that is the first thing I seen, the rubber hose. I grabbed that off the faucet, I think Mr. Crain grabbed the right arm and Mr. Herring the left arm, and as he came up I struck him twice with the hose just across the neck, and as I struck him he kicked me in the stomach and back to where the wash basin was, and Mr. Yonng, another patient, was in the stool room there, or had been.
‘ ‘ Q. What did Mr. Tonng do ? A. He came out and just as he kicked me back Mr. Young grabbed him by the feet and jerked his feet out and he fell in here on his right side and turned some way so he struck his right side.
“Q. Ho you know what he did strike as a matter of fact?
“A. I don’t know. It might have-been the radiator. I presume it was the radiator.
“Mr. McDaniel: I object to his presumption.
“The court: Don’t state your presumption.
State what you saw. Don’t state what you think.
“A. Well, it looked to me like he struck the radiator or the floor in front of him. I think it was the radiator. That is what it looked to me like. And immediately after he struck him Young jumped out on him with his feet and he stood /with one foot here and he stamped him five or sis times before either of us could get to him, it was done right quick, and we pulled Young off, Herring and I did.”

He testified that neither he nor Herring kicked Wallace.

Defendant Herring testified that when he got near where Wallace was Fitzpatrick and Murphy told him that Wallace had made threats; and, as to the difficulty, he testified:

“I undertook to see what was the difficulty between these patients and as soon as I saw there was apt to be some disturbance with him, we made an effort to get him away from these two benches of infirm patients for fear he would hurt some of them, and we naturally crowded him to the back through this back hall, and when we got through he breaks lose and backs into this door and into the bath room. He stopped right in the door facing us, so only one man could approach him at a time. He puts up a defense by striking at me five or six times.
“Q. Did he hit you? A. No, I was not in reach of him at the time. He then made a violent strike and started to fall into me, and to keep him from biting me as he intended to do I gave him a shove with my hand against the left side of his face and he staggered hack across the bath room.
“Q. Did you strike him? A. No, I shoved him, and he staggered back and fell on his head and shoulders with his head between the bath tub and the radiator. That is a distance of about ten feet, I suppose.
“Q. What did you shove him for? A. I shoved him to keep him from clinching me and biting me. That is what I expected him to do. When he went down he didn’t lay there, he started to get up, and as he made an effort to get up Everett Crain, a patient, who was standing inside the bath room door, he takes hold of one of patient Wallace’s arms, I believe it was his right arm, and I was on the other side, I believe I took hold of his left arm, and as he starts to get up Mr. Baldwin — the first thing he sees is a piece of hose connected on the pipe where Mr. Crain was working — he takes the hose off — I don’t know whether to use it himself or to keep the other patients from using it — and as Mr. Wallace starts to get up he strikes him a couple of times across the head. He stepped hack and Wallace kicked him in the stomach and he kicked him hack nearly to the lavatory on that side. George Young, another patient, was standing in this door that connected the water closet with the hath room, hut at the time that Mr. Baldwin hit him and Mr. Wallace kicked Mr. Baldwin, Young had shifted his position and he hit him in such a way that Mr. Wallace falls loose from myself and Mr. Crain, Ms head falling towards the radiator. I am not positive that he struck anything, but I know his head struck the floor, and possibly the radiator as he went down. And when he went down striking his head against the radiator or floor, George Young, the same patient that had pulled his feet from under him, he took advantage of the situation by jumping upon him and he lacked him four or five times with one foot while he stands on him with the other, and Mr. Baldwin and I pulled him off as quick as possible.”

He further testified that blood and food came from Wallace’s mouth as he lay on the floor. He denied that he kicked Wallace.

Everett Crain, a patient in the asylum, who was discharged about a week before the trial, was put on the stand by the defendants. Pie testified that he was in the bath room drawing a bucket of water; that Wallace hacked into the room fighting those who followed; that Pierring hit Wallace with his hand and knocked him down; that Wallace staggered four or five feet and fell between the radiator and the bathtub, his head not hitting the floor, and that he then came back on his feet. He further testified:

“A. As Mr. Wallace came up, he had almost gotten to a standing position, I had hold of his right arm and Mr. Herring had hold of his left arm, and Mr. Young came through the door and Mr. Wallace lácked with his left foot, I couldn’t swear where he hit Mr. Young at, but Young went against this radiator, and then Mr. Baldwin hit Wallace twice over the head and Young hacked around in here and jerked his feet from under him. When he went down, Mr. Herring and I let loose of his arms and when he went down his head struck this radiator or hath tub. Then Mr. Young went on his chest or stomach and as quick as Mr. Herring and Mr. Baldwin could get him off they done it.”

He further testified on cross-examination:

“Q. Now who else there kicked Mr. Wallace besides Mr. Ypung? A. I and Mr. Herring. Mr. Herring, I couldn’t swear whether his lick ever hit Mr. Wallace or not.”

The evidence shows that after it was ascertained that Wallace was seriously injured the defendants made every effort in their power to resuscitate him.

Joseph Hoffman, a patient in the third ward, testified for the .State that he went into the wash room and saw Wallace lying on the floor unconscious, with the leather straps on his hands and around, his body, while the others stood around him. All the other evidence showed that there were no straps on him.

Dr. Woolsey, one of the hospital physicians, testified that defendant Herring told him that he (Herring) hit Wallace with his knuckles, knocking him about five feet, and that he fell between the radiator and the bath tub.

The autopsy revealed that the head and face of deceased were bruised and swollen in various places, that there was a red stripe on the side of the face from chin to ear, the entire front of the chest was bruised, as was the abdomen to the hips, the arms were bruised, seven ribs and the breast bone were broken, and the heart was pierced by a splinter from off the ribs, the intestines were torn from their connections in many places.

The defendants, while on the stand, were asked why, after Wallace’s death, they did not tell that Young had stamped the deceased, and answered that they did not know until after the autopsy about the damage done to the.chest of the deceased.

The three State’s witnesses, Murphy, Fitzpatrick and Hoffman, had been adjudged insane. The defendants objected to them as incompetent on that ground, which objection was overruled. We shall not state the facts as to the competency of Fitzpatrick and Murphy, for the reasons given in the opinion. The witness Hoffman was forty-four years old, horn in Germany, and had been in the hospital nearly twelve years. He was a bachelor. He was examined out of the presence of the jury to determine whether he was a competent witness. The questions put to him and his answers cover about six pages .of the transcript. We can see no indication of mental weakness in that examination. The closing part of it is as follows:

“Examination by The Court.
“Q. Do you know what it is to be sworn in court? A. Yes; sir. Q. Do you know you would be punished if you swore to a lie in court? Do you know that the law punishes anybody that would swear to a lie ? Do you know what is meant when you hold up your hand and say I promise to tell the truth so help me God? A. Yes, sir.
“Q. Do you know what you would be? A. A person can make himself a meineid by speaking falsely.
‘ ‘ Q. Suppose he does make himself speak falsely after he is sworn would he be punished? A. I suppose he would.
“Q. Punished by the law? A. Yes, sir.
“Q. You know that is true, do you? A. Yes, sir.
“Q. Would he be punished otherwise hereafter? A. If they would find out.
“Q. If they find out he has sworn falsely he would be punished by the law? A. Yes, sir.
“Examination by Mr. Cave.
“Q. Mr. Hoffman, what do you mean when you take an oath in court. What do you understand it to mean? A. Well, to tell what is right, what is correct.
“ Q. Would you be any more likely to tell what is correct after you had taken an oath? A. If I am •sworn in court I am sworn to tell the truth if I know it.
“Q. Suppose you didn’t tell the truth, do you know whether that is wrong, morally or legally? A. A person knows what is right and believes it.
“Q. If they know it they tell it? A. Yes, sir.
“Q. Is it your idea that you can and will tell the truth about it? A. I wont tell an untruth if I know it.
“Q. Are you certain when you are telling the truth about anything that happened there? A. I guess it is all correct.
“Q. Are you certain about that? A. Yes sir.
“Q. What would happen to you if you would make a mistake and not tell the truth. A. Of course, a person might forget.
“Q. Might forget about it? A. Yes.
“Q. Are you somewhat forgetful. A. No, not so easy.
“Q. What were you sent to the asylum for, Mr. Hoffman? A. I dont know what they charged me up for.
“Q. You don’t know what the matter was? You don’t know what the trouble was, do you? A. I don’t know exactly what you call it.
‘ ‘ The court: This witness, of course, is at a disadvantage. He is a foreigner and doesn’t speak our language very well. As far as his mentality goes, I don’t think he has shown that he has not enough mentality to testify.”

Dr. Woolsey testified, that Hoffman was reasonably competent to understand facts and relate them on the stand, that he knew right from wrong and the meaning of an oath, and that the record showed that there was no change in his condition in the last four years.

Dr. Woodson testified that if Hoffman was as intelligent all the time as he then was he was well enough to go home.

The court then permitted Hoffman to testify.

One of the jurors on his examination stated that he had made up his mind from what he saw in- the paper, had expressed that opinion, that he still had that opinion, that it would take evidence to remove it, but that he could disregard that opinion and reach his verdict solely from the evidence in court. Defendants’ challenge of the juror was overruled by the court.

The fourth instruction was as follows:

“The court instructs the jury that the defendants had the right to use all reasonable force necessary to control the deceased Joshua Wallace, ánd if you find and believe from the evidence that the defendants to effectuate said purpose of attempting to control the deceased Joshua Wallace did unlawfully and unnecessarily strike, beat and injure the deceased Joshua Wallace with their fists and feet in .the manner set out in the information, and that the deceased died from said beating and striking at the county of Buchanan and State of Missouri on or about the 7th day of February, 1915, then you will find the defendants guilty of manslaughter in the fourth degree, and assess their punishment at imprisonment in the penitentiary for the term of two years, or by imprisonment in the county jail for not less than six months, or by a fine of not less than five hundred dollars, or by both a fine of not less than one hundred dollars and imprisonment in the county jail not less than three months.”

I. The fact that the juror had made up his mind from what he saw in the newspaper was no ground for challenge after the juror stated that he could disregard that opinion and decide the case solely .from the evidence. [R. S. 1909, sec. 5220; State v. Rasco, 239 Mo. 535; State v. Schmulbach, 243 Mo. 533.] Appellant has cited no authority to the contrary.

II. The State’s witnesses Murphy and Fitzpatrick were really favorable to the defendants. They testified to the dangerous disposition of Wallace and of Young and told defendants of the threats made by Wallace. That they did so tell defendants is shown by the evidence of the defendants. Those witnesses did not testify to a single thing having a tendency to convict the defendants. So far as their evidence goes, the defendants, up to the time they passed out of sight of those witnesses, were doing nothing more than their duty. As the testimony of those witnesses could not have harmed the defendants we decline to consider the question of their competency.

III. The trial court, in passing upon the competency of witnesses who have been adjudged insane, said:

“I think the fact that this man may have been adjudged insane, is not a conclusive presumption that he is incompetent. The law is that the presumption is that when one on a proper inquisition has been adjudged insane, he is insane, and before ean pecome a competent witness in any case it must be shown that he has lucid moments and that at the time he is offered as a witness he has sufficient mind for the court to determine that he had mind sufficient * to observe the facts and rationally relate what occurred. If you gentlemen have any authority to the contrary, I will be glad to hear it. I have looked up this question in every text-book I have in my office. I have read Underhill’s Criminal Evidence, I have read Elliot, and I have read the last work — I can’t recall the name — I have read all the late rulings on this point.”

That opinion is supported by Underhill on Crim. Ev. (2 Ed.), sec. 202; 2 Elliott on Ev., sec. 757; 1 Wigmore, Ev., sec. 497; 30 Am. & Eng. Ency. of Law (2. Ed.), 935-bb; State v. Meyers, 37 L. R. A. 423; State v. Pryor, 46 L. R. A. (N. S.) 1028; and Hottle v. Weaver, 206 Pa. St. 87. In State v. Vaughn, 223 Mo. l. c. 155, it was held that a person committed to a hospital for the insane is presumed to continue insane. There was no evidence in that case to rebut the presumption, and there was no occasion to consider the effect of such evidence, but the court there cited authorities which held that such presumption is not conclusive..

We have a statute which provides upon this point thus: “The following persons shall be incompetent to testify: First, a person of unsound mind at the time of his production for examination,” etc. [Sec. 6362, R. S. 1909.]

It was, as suggested above, held in the case of State v. Vaughn, 223 Mo. l. c. 155, that since the proof made in that case showed that the person whose testimony was in issue as to its competency, was an inmate of an asylum for the insane, the presumption was that she was insane, and therefore incompetent. Taking as premises our statute which seems to have been enacted in 1855, and the presumption which follows an incarceration in a state a-sylum for the insane, can an inmate of such asylum be a competent witness? The question is a serious and troublesome one, as will be shown infra.

In the early days of the common law insanity of the proposed witness rendered him absolutely incompetent. An early (1842). edition of Greenleaf on Evidence, thus states the old rule:

“It makes no difference from which cause this defect of understanding may have arisen; nor whether it be temporary and curable, or permanent; whether the party be hopelessly an idoit or maniac, or only occasionally insane, as a lunatic; or be in‘toxicated; or whether the defect arises from mere immaturity of intellect, as in the case of children. While the deficiency of understanding exists, be the cause of what nature soever, .the person is not admissible to be sworn as a witness.”

This rule of absolute incompetency at common law prevailed from early time (Coke upon Litt. 246b; Comyns’ Dig. — Testimony, A-1; Livingston v. Kiersted, 10 Johns. (N. Y.) 362) down to a day comparatively recent. [Greenleaf on Ev., supra.] The trend of all the later cases, however, and the universal rule at common law, now is that the lunatic may be sworn and may testify as a witness; provided, upon examination by the court (who is the sole judge of his competency, subject to review on appeal for an abuse of discretion) he shows that he understands the nature of an oath and that he possesses mental capacity sufficient to observe and recollect and narrate the things he saw or heard. [Walker v. State, 97 Ala. 85; McKinstry v. Tuscaloosa, 172 Ala. 344; Worthington v. Mencer, 17 L. R. A. 407; Armstrong v. Timmons, 3 Har. (Del.) 342; Cannady v. Lynch, 27 Minn. 435; State v. Crouch, 130 Iowa, 478; Cuesta v. Goldsmith, 1 Ga. App. 48; People v. Enright, 256 Ill. 221; Holcomb v. Holcomb, 28 Conn. 177; Regina v. Hill, 5 Cox Crim. 259; Cogan v. Cogan, 202 Mass. 58; District of Columbia v. Armes, 107 U. S. 519; State v. Hayward, 62 Minn. 474; 40 Cyc. 2201; State v. Simes, 12 Idaho, 310; Bowdle v. Railroad, 103 Mich. 272; Railroad v. Thompson, 27 C. C. A. 333; Barker v. Washburn, 200 N. Y. 280; Covington v. O’Meara, 133 Ky. 762; Coleman v. Comm., 25 Gratt. (Va.) 865; Evans v. Hettich, 7 Wheat. 453; State v. Cremeans, 62 W. Va. 134; Czarecki v. Railroad, 30 Wash. 288; Guthrie v. Shaffer, 7 Okla. 459; Batterton v. State, 52 Tex. Cr. 381; Singleton v. State, 57 Tex. Cr. 560; Burns v. State, 145 Wis. 373; State v. Brown, 36 Atl. (Del.) 458; Kendall v. May, 10 Allen (Mass.), 59.]

Our statute upon this question, which we quote above, has never been construed upon the precise point now before us. Por while, as stated above, it was said in State v. Vaughn, 223 Mo. l. c. 155, that a person of unsound mind who is committed to an asylum for the insane, is presumed to continue insane, yet it is not ruled in the Vaughn case whether such presumption may or may not be rebutted by voir dire examination or otherwise. In State v. Whitsett, 232 Mo. 511, the precise point here presented was not before the court, and what is there said is not decisive and only remotely analogous. The question.is therefore one of first impression in this State, and must be resolved upon the terms of our own statute, aided persuasively by the rulings on similar statutes in other jurisdictions; for as we have seen the common law rule is' universally in favor of competency of such insane witness upon a proper and sufficient showing on his voir dire examination.

Upon principle and on first blush, it would seem that under our statute one confined in an asylum for the insane is rendered absolutely incompetent as a witness, and that the presumption arising from the fact of such incarceration (State v. Vaughn, supra) is not rebuttable collaterally. But it was pointed out by Campbell, C. J., in tbe case of Reg. v. Hill, 2 Den. & P. C. C. 254, that such a rule “would be extremely inconvenient in many cases in tbe proof either of guilt or innocence; it might also cause serious difficulties in the management of lunatic asylums.”

It has also been strenuously urged that an incarcerated or adjudicated lunatic would be, while giving his testimony, freed from the restraining fear of the pains and penalties of perjury; that being confessedly insane and confined as such, no jury would convict him of perjury. The answer would seem to be that the witness upon his voir dire examination must as one test of competency show his mental appreciation of the criminality of false swearing; it must appear that he knows that perjury is morally wrong and that one committing it is liable to be punished by the criminal law. Moreover, a ten-year-old child is primafacie competent as a witness in this State (State v. Anderson, 252 Mo. 83); children under ten may be shown to be admissibly competent (Sec. 6362, R. S. 1909); yet the possibility of a conviction by a jury for perjury is procedurally and practically as remote in the case of such child witnesses as it is in the case of an insane person. But however this inay be, many states of the Union have statutes either verbatim as ours, or similar in substance and meaning to ours, yet without a single dissenting voice the matter of competency of an insane person to testify has, all such statutes notwithstanding, been said to rest wholly upon a proper voir dire showing as at common law. In Nebraska the applicatory statute forbids “persons of unsound mind at the time of their production” from testifying; held, notwithstanding, that the question of competency is one for “the sound legal discretion of the trial judge, leaving to the jury to determine the credits that ought to be given to the testimony.” [State v. Meyers, 46 Neb. 152.]

The Idaho statute upon this point reads: “The following persons cannot be witnesses: Those who are of unsound mind at the time of their production” for examination^ Held, that such statute is only declaratory of the common law rule and competency as at common law appearing to the satisfaction of the trial court upon voir dire examination, the' insane witness may testify. [State v. Simes, 12 Idaho, 310.] In Minnesota the statute renders incompetent as witnesses “all who are of unsound mind when produced as witnesses.” Held, that an insane person is not necessarily incompetent; such question being determinable by the trial court on the basis of the witness’s knowledge of right and wrong and his power of memory. [Cannady v. Lynch, 27 Minn. 435; State v. Hayward, 62 Minn. 474.] Similar are the statutes and the rule in Oklahoma (Guthrie v. Shaffer, 7 Okla. 459; Adams v. State, 5 Okla. Crim. 347); in Ohio (Railroad v. Thompson, 27 C. C. A. 333); in California (Clements v. McGinn, 33 Pac. 920); in Georgia (Cuesta v. Goldsmith, 1 Ga. App. 48); in Montana (State v. Berberick, 38 Mont. 423); in Indiana (Dickson v. Waldron, 135 Ind. 507); in Texas (Batterton v. State, 52 Tex. Crim. 381). Others can be found, but the above should suffice. In no State wherein a statute like ours on the question of competency exists, have we been able to find a contrary ruling, even though the words of the statute, and the reason of the case may seem on but a casual view to call for a different rule. Likewise, the textbooks deduce from the adjudged cases a similar unanimous holding upon the point. [Underhill on Crim. Evidence, supra; 2 Elliott on Ev., supra; 1 Wigmore on Ev., sec. 497; 30 Am. & Eng. Ency. Law, supra; 40 Cyc. 2201; Rapalje on Witnesses, sec. 4; Chamberlayne’s Best on Ev. 132; 7 Ency. of Ev. 479; 1 Greenleaf, 370; 2 Moore on Facts, sec. 936; 4 Jones on Ev., sec. 723.] Appositely, says Wigmore, “This broad and rational principle, that the derangement, in order to disqualify, must be such as substantially negatives trustworthiness upon the subject of the testimony, is now practically everywhere accepted.” [1 Wigmore on Ev., sec. 492.]

From the ruled cases we may deduce the rules: (a) That a person of unsound mind is competent as a witness, if, (1) upon examination he be found to be of sufficient mental capacity to understand the nature of an oath, that is, to know it is both a moral and a legal wrong to swear falsely, and that false swearing is a punishable crime in law, and (2) if he be possessed of sufficient mind and memory to observe, recollect and narrate the things he saw or heard; (b) that lawful confinement in an asylum for the insane, or an adjudication as an insane person, creates a prima-facie presumption of absolute incompetency as a witness; but (c) such presumption is rebuttable by the voir dire examination of the witness alone, or when aided by extrinsic evidence, and (d) the burden of rebutting the presumption of incompetency in case of confinement in an asylum or adjudication as an insane person is on him who offers the witness; but (e) that absent such confinement, or adjudication as an insane person, the burden of showing incompetency on account of unsoundness of mind is on him who objects on that ground.

There is nothing in the examination of witness Hoffman as to his competency which suggests incapacity. We note that he answered, “A person can make himself a meineid by speaking falsely.” We are told that “meineid” is the German for “perjury” and the dictionary of that language supports our informant. The witness was compelled to use two languages to express his thought, but his understanding of the nature, of an oath was good enough.

IV. Fault is found with the fourth instruction. The word- “unlawfully” and the words “in the manner set out in the information” . ,. , . , ,. m that instruction were unnecessary, superfluous and harmless. That instruction, without those words, told the jury, in substance, that defendants had the right to use all reasonable force necessary to control Wallace, and that if the jury should find that they'did unnecessarily strike, beat and injure Wallace with their feet and fists, and that Wallace died therefrom, they should find them guilty of manslaughter in the fourth degree. Thus stripped of its unnecessary and harmless words, that instruction is similar to the' one approved in State v. Montgomery, 230 Mo. l. c. 666, where an officer was 'charged with murder and where the evidence tended .to, show that he used unnecessary force in resisting an effort to rescue a prisoner in his charge. It is true that where the instruction refers the jury to the information for matters which are not in the instruction and which are necessary for their consideration, such instruction is erroneous. But in this case the reference to the information performed no such function and was harmless.

1 Appellants say that the instruction is faulty in not telling the jury that defendants were not required to nicely gauge the amount of force necessary to subdue the patient, and that they had the right to use such force as reasonably seemed to them necessary for that purpose. The instruction is correct as far as it goes. The omission complained of is one of non-direction, not of misdirection. The appellants asked for no instruction covering that point, and have not properly brought it before the court.

Appellants say that the evidence is not sufficient to support the conviction. We cannot agree to that proposition.

The judgments against the defendants respectively are affirmed.'

Williams, C., concurs.

PER CURIAM.

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

All the judges concur.